Pauley, Jeffery v. TN Timber and Management Co.

IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KINGSPORT
Jeffrey Pauley ) Docket No.: 2015-02-0320
Employee, )
v. ) State File Number: 92910/2014
TN Timber and Management Co. )
Employer, ) Judge Brian K. Addington
And )
American Interstate Ins. Co. )
Insurance Carrier. )
)
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS AND DENYING
TEMPORARY DISABILITY BENEFITS
(REVIEW OF THE FILE)
This cause came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing (REH) filed by the employee, Jeffrey Pauley. Mr. Pauley
requested the Court decide his interlocutory claim for temporary and medical benefits on
a review of the file without an evidentiary hearing. The employer, TN Timber and
Management Company, did not request an evidentiary hearing. The Court issued a
Docketing Notice on December 14, 2015, allowing the parties seven business days to
raise any objections to the admissibility of any document filed in the case. The parties
filed no objections.
The present focus of this case is Mr. Pauley's entitlement to temporary disability
benefits and medical benefits after a tree branch struck him at work. For the reasons set
forth below, the Court finds Mr. Pauley's injury is compensable and grants further
medical benefits. The Court denies Mr. Pauley's request for temporary disability
benefits.
History of Claim
Mr. Pauley is a thirty-year-old resident of Lee County, Virginia. (T.R. 4 at 1.) He
worked as a tree cutter for TN Timber and Management Company. (T.R. 4 at 1, 2.) On
November 25, 2014, Mr. Pauley suffered an injury to his right thigh when a tree branch
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struck him. (T.R. 8.)
Mr. Pa uley rec ived emergency care with Dr. Scott Smith , who opjned Mr. Pauley
suffered a thi gh contu ·ion. (T. R. 7 at 1, 8.) 1 Dr. Smith saw Mr. Paul ey again on
December l L 2014. Id. at 1. Dr. Scott noticed swelling in the injured leg, but Mr.
Pauley had good range of motion. Jd. He recommended Mr. Pauley remain offwork for
an additional three weeks. !d.
After the doctor' s appointment, Mr. Pauley had a conversation with Pamela
Thomas, the adjuster on the claim. (T.R. 11 at 1.) During the conversation, Mr. Pauley
and Ms. Thomas discussed that he previously chose Dr. Smith as the authorized treating
physician. !d. at 10. However, Dr. Smith's office was a long distance from Mr. Pauley's
home, so Ms. Thomas offered a physician closer to his residence. !d. She offered Dr.
Greg Jeansonne, whose office was closer to Mr. Pauley's home, and Mr. Pauley chose
Dr. Jeansonne from a new physician panel. (T.R. 10.)
Dr. Jeansonne's first appointment with Mr. Pauley occurred on December 29,
2014. (T.R. 6 at 6.) During the physical examination, Dr. Jeansonne opined Mr. Pauley
performed inconsistent strength testing and exhibited "a component of symptom
magnification for secondary gain." !d. at 6-7. Dr. Jeansonne returned Mr. Pauley to
work with restrictions of no squatting, kneeling, or climbing and ordered physical therapy
for four weeks. !d. at 7. TN Timber could not accommodate Mr. Pauley's restrictions, so
his temporary benefits continued. (T.R. 1 at 1.)
Mr. Pauley returned to Dr. Jeansonne on March 4, 2015, with significant pain in
his right thigh. (T.R. 6 at 4.) However, during the examination, Dr. Jeansonne noted Mr.
Pauley showed no distress. !d. He opined, "I believe that the patient is now magnifying
his symptoms to the point where I am unable to fully assess his recovery." !d. Dr.
Jeansonne recommended an independent medical evaluation (IME). !d.
Dr. Timothy Jenkins performed an IME on May 27, 2015. (T.R. 5 at 6.) Dr.
Jenkins noted Mr. Pauley had some pain but was at near full strength. !d. He observed
Mr. Pauley could step and squat without any pain. !d. Dr. Jenkins noted Mr. Pauley
wanted to return to work as soon as possible. Id. He recommended four to eight weeks
of aggressive physical therapy. !d.
On June 10, 2015, Mr. Pauley returned to Dr. Jeansonne. (T.R. 6 at 2.) Dr.
Jeansonne examined Mr. Pauley and determined he did not provide full effort during
strength tests. !d. He recommended physical therapy once per week for eight weeks. !d.
Dr. Jeansonne related Mr. Pauley's slow progress to his effort. !d.
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Although not in the record, it appears from subsequent records that Dr. Smith took Mr. Pauley off work after this
initial visit.
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On July 30, 2015, Mr. Pauley returned to Dr. Jeansonne and reported a new pain
in his right knee. (T.R. 6 at 1.) Mr. Pauley reported no progress with the physical
therapy. !d. Dr. Jeansonne agreed to continue Mr. Pauley's physical therapy, but also
released him to work with no restrictions. He also agreed to continue to see Mr. Pauley,
even though Mr. Pauley threatened to sue him. !d.
Mr. Pauley's average weekly wage ts $379.91, which provided him a
compensation rate of $253.27. (T.R. 9.)
Mr. Pauley filed a Petition for Benefit Determination (PBD) seeking temporary
disability and medical benefits. (T.R. 4.) The parties did not resolve the disputed issues
through mediation, and the Mediation Specialist filed the Dispute Certification Notice
(DCN) on November 5, 2015. (T.R. 3.)
Mr. Pauley filed an REH on November 24, 2015. The Court considered all the
information as referenced in the Docketing Notice.
Findings of Fact and Conclusions of Law
The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor employer.
Tenn. Code Ann. § 50-6-116 (20 14 ). The employee in a workers' compensation claim
has the burden of proof on all essential elements of a claim. Tindall v. Waring Park
Ass 'n, 725 S.W.2d 935, 937 (Tenn. 1987); Scott v. Integrity Staffing Solutions, No. 2015-
01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App.
Bd. Aug. 18, 20 15).
An employee need not prove every element of his or her claim by a preponderance
of the evidence in order to obtain relief at an expedited hearing. McCord v. Advantage
Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-
8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). At an expedited hearing, an
employee has the burden to come forward with sufficient evidence from which the trial
court can determine that the employee is likely to prevail at a hearing on the merits. !d.
The first issue on the DCN is whether Mr. Pauley suffered an injury that arose
primarily out of and in the course and scope of his employment with his employer. All
the doctors who have treated Mr. Pauley have opined he suffered a thigh contusion
following the incident at work. Mr. Pauley has presented sufficient evidence from which
the Court can determine he is likely to succeed on this issue at a hearing on the merits.
The second issue is whether Mr. Pauley is entitled to another panel of physicians.
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It is clear from Mr. Pauley's PBD, his affidavit, and Dr. Jeansonne's medical records,
that Mr. Pauley does not care for Dr. Jeansonne. However, even when Mr. Pauley
threatened to sue him, Dr. Jeansonne offered to continue treatment. An employee can
choose another physician from a panel if the chosen doctor refuses to treat the employee.
Tenn. Code Ann. § 50-6-204(3)(0) (2015). However, Mr. Pauley has failed to prove Dr.
Jeansonne will no longer treat him.
Mr. Pauley asserted he is entitled to another panel because I) the adjuster forced
him to choose Dr. Jeansonne; and 2) Dr. Jeansonne has provided inappropriate care. It is
clear that Mr. Pauley chose Dr. Jeansonne from a panel of physicians. From a review of
the file, it does not appear the adjuster coerced Mr. Pauley to choose Dr. Jeansonne.
Concerning the appropriateness of treatment, Mr. Pauley asserts Dr. Jeansonne
should have followed Dr. Jenkins' recommendations. After reviewing Dr. Jenkins'
recommendation for physical therapy, Dr. Jeansonne recommended physical therapy. It
is Mr. Pauley and not Dr. Jeansonne who reported no progress with the physical therapy.
Mr. Pauley has not identified what other treatment might have been inappropriate. The
Court finds Mr. Pauley has not come forward with sufficient evidence from which the
Court can determine he is likely to prevail at a hearing on the merits on his request for a
new panel of physicians.
Another certified issue is whether Mr. Pauley is entitled to additional medical
treatment recommended by a physician. Concerning the issue of additional medical
treatment, Dr. Jeansonne is willing to treat Mr. Pauley. It is Mr. Pauley that does not
wish to treat with Dr. Jeansonne. Apart from his dislike for Dr. Jeansonne, Mr. Pauley
has presented no medical proof that he is in need of additional medical treatment that Dr.
Jeansonne is unwilling to order. The Court does find, however, that Mr. Pauley is
entitled to additional medical treatment with Dr. Jeansonne.
Another certified issue is whether Mr. Pauley is entitled to an evaluation by
another physician. Other than his dislike for Dr. Jeansonne, Mr. Pauley has not come
forward with any substantive evidence that he is entitled to an additional evaluation by
another physician.
The remaining issue deals with temporary disability benefits. The record reflects
TN Timber paid Mr. Pauley temporary disability benefits until Dr. Jeansonne released
him to full duty. Mr. Pauley disagreed with his full-work release, but presented no expert
medical proof that he should not be working at full duty. Although TN Timber did not
return Mr. Pauley to employment after his release to full duty, it was under no statutory
duty to do so. See Tenn. Code. Ann. § 50-6-234(b) (2015). For this issue, Mr. Pauley
produced insufficient evidence from which the Court could determine he would be
successful at a hearing on the merits.
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IT IS, THEREFORE, ORDERED as follows:
1. Mr. Pauley is entitled to additional medical treatment with Dr. Jeansonne.
2. Mr. Pauley's requests for a new panel of physicians, additional evaluation by
another physician, treatment recommended by a physician, and temporary
disability benefits are denied.
3. This matter is set for an Initial (Scheduling) Hearing on February 18, 2016, at 3:00
p.m. Eastern.
4. Unless interlocutory appeal of the Expedited Hearing Order is filed,
compliance with this Order must occur no later than seven business days
from the date of entry of this Order as required by Tennessee Code
Annotated section 50-6-239(d)(3) (2014). The Insurer or Self-Insured
Employer must submit confirmation of compliance with this Order to the
Bureau by email to WCCompliance.Progn1m@tn.gov no later than the
seventh business day after entry of this Order. Failure to submit the
necessary confirmation within the period of compliance may result in a
penalty assessment for non-compliance.
5. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit via email W ·comp li