Valentine, Kimberly v. Dollar General

IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT NASHVILLE
Kimberly Valentine, ) Docket No.: 2015-06-0841
Employee, )
v. ) State File Number: 58121-2015
Dollar General, )
Employer, Self-insured. ) Chief Judge Kenneth M. Switzer
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
This matter came before the undersigned workers' compensation judge on the
Request for Expedited Hearing filed by the employee, Kimberly Valentine, pursuant to
Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case is
Ms. Valentine's entitlement to a panel of physicians and Dollar General's liability for
past unauthorized care. The central legal issue is whether Dollar General acted in
compliance with the Workers' Compensation Law when it verbally offered Ms. Valentine
care from only one provider. For the reasons set forth below, the Court finds Dollar
General did not provide a statutorily-compliant panel. Therefore, Ms. Valentine is
entitled to a panel of orthopedic specialists who may provide any reasonable and
necessary care. The Court further finds that, at this time, Ms. Valentine failed to satisfy
her burden with regard to her requested reimbursement for unauthorized care. 1
History of Claim
Ms. Valentine is a forty-eight-year-old resident of Sumner County, Tennessee.
(T.R. 1 at 1.) She testified she works full-time for the State of Tennessee, and worked a
second job as an assi'stant store manager for Dollar General in Goodlettsville. Ms.
Valentine suddenly felt pain in her back while stocking the highest "sky" shelves on July
25, 2015. She continued to work, bending down to move a heavy bag to the bottom
shelves, and pain shot through her legs. She "hit the floor," and then went to the office.
Dollar General stipulated that the July 25, 2015 injury is work-related.
Ms. Valentine testified she reported the injury at about 8:00 or 9:00 p.m. that
1
A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
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evening, via Dollar General's telephonic injury hotline. The triage nurse with whom she
spoke offered a provider in "Spring Hill or Springfield," although the nurse noted it
would likely be closed by the time Ms. Valentine arrived there from Goodlettsville. The
nurse told her to call back the next morning. According to Ms. Valentine, when she
called the following morning, the nurse told her to go to Concentra. The Affidavit of
Dollar General's claims adjuster, Samuel English, indicated that, "Pursuant to statute,
Ms. Valentine was offered the C42 panel of authorized physicians over the phone by our
triage nurse." (Ex. 3 at 1.) However, Dollar General did not introduce a C-42 Choice of
Physician form into evidence.
Dr. Cathy Hammond-Moulton, the Concentra physician, diagnosed strains in the
lumbar and thoracic regions of Ms. Valentine's back. (Ex. 1 at 3-4.) Ms. Valentine
received follow-up care at Concentra on three additional occasions, the last of which was
August 11, 2015. Dr. Hammond-Moulton's notes indicate Ms. Valentine stated her
condition was worsening. !d. at 16. Dr. Hammond-Moulton ordered an MRI but marked
it as on "hold." !d. at 17. The notes additionally state she told Ms. Valentine to return in
one week. !d. at 16-18. However, on the morning of the scheduled MRI, Dr. Hammond-
Moulton cancelled it.
Ms. Valentine telephoned Mr. English to ask how she should proceed after the
MRI's cancellation. He said Dr. Hammond-Moulton telephoned him earlier as well to
inform him of the MRI's cancellation. According to Ms. Valentine, she told Mr. English
she was still experiencing pain, to which he responded, "'You're more than welcome to
see your own-your own doctor.' I said 'okay,' and that's what I did." On cross-
examination, Ms. Valentine stated she never asked to see another doctor because, "He
told me I was done, go on my own, and that's what I did."
Ms. Valentine saw her primary care physician, Dr. John Williams, on August 28,
2015, who ordered an MRI. !d. at 35. The MRI report from Outpatient Diagnostic
Center of Nashville lists Dr. Williams as the referring physician. 2 I d. at 19. The MRI
report states, "Impression: 1. Congenital spinal stenosis. 2. Disc bulge and facet
degeneration with minimal lateral recess stenosis bilaterally at L5-S 1." !d. at 19. At a
follow-up visit on September 30, 2015, Dr. Williams referred Ms. Valentine for an
orthopedic evaluation. !d. at 30, 32.
Ms. Valentine conceded on cross-examination that she treated with Dr. Williams
in February and March 2015 for right-shoulder bursitis and low-back pain. Dr. Williams'
March 10, 2015 notes stated she reported back pain, and, "pt presents today w/ complaint
2
Mr. English testified via affidavit that Dollar General provided the MRI. (Ex. 4 at 1.) However, the
report lists Dr. Williams as the referral source (Ex. I at 19), and Ms. Valentine submitted a bill from
Outpatient Diagnostic Center for the MRI. (Ex. 6.) Dollar General's counsel clarified in argument that
Mr. English authorized the MRI but, because Dr. Hammond-Moulton cancelled it, it did not pay for the
MRI.
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of rt shoulder pain- following injury at work, she is unable to lift rt arm above shoulder
level." !d. at 21. Further, the February 3, 2015 notes stated, "Has had chronic low back
pain for a while." ld. at 22. Ms. Valentine testified she never saw a doctor for her back
or shoulder prior to these visits, nor did she report a work-related injury to Dollar General
at that time.
Ms. Valentine emailed Mr. English on October 15, 2015. (Ex. 5.) She wrote:
I left you another message on your phone letting you know that I had sent
you a copy of the MRI. I am in a lot of pain and need to know What [sic] I
must do next my doctor states I must see specialist. Please let me know if
you are going to keep the case closed. Because if so I just need a copy of
the closure letter to take to back specialist of my choice.
In Mr. English's response, he attached a release enabling Dollar General to access her
records from Dr. Williams, and wrote "We MAY very well need to consider further care
under WC." !d. (Capitalization and boldface in original.)
Mr. English's Affidavit states Dollar General did not deny Ms. Valentine's claim,
but he did not offer additional authorized care. (Ex. 4 at 2.) Ms. Valentine testified that
Dr. Williams discontinued treating her for the work-related injury because he does not
treat workers' compensation patients. Ms. Valentine introduced into evidence a bill for
the MRI totaling $455.00, as well as a Cigna Explanation of Benefits form indicating she
owes a $25.00 co-pay for treatment with Dr. Williams on August 28, 2015. (Exs. 6, 7.)
Ms. Valentine additionally introduced written MapQuest driving directions (Ex. 8) and
testified that the trip one way from her former residence to the doctor's office is 16.4
miles. Further, she introduced leave requests, which document Ms. Valentine used sick
leave from her state employment to attend treatment for her work-related injury. (Ex. 9.)
Ms. Valentine filed a Petition for Benefit Determination (PBD) seeking additional
medical benefits. The parties did not resolve the disputed issues through mediation, and
the Mediating Specialist filed a Dispute Certification Notice (DCN). Ms. Valentine filed
a Request for Expedited Hearing, and this Court heard the matter on December 17, 2015.
At the Expedited Hearing, Ms. Valentine asserted that Dollar General never
provided a statutorily-compliant panel, but rather offered only authorized care through
one physician at Concentra. Therefore, she is entitled to a panel of orthopedic specialists,
in accordance with Dr. Williams' recommendation. Ms. Valentine's complaints from
February and March are of no consequence because she continued to work throughout
that time and the problems resolved, so that she did not feel a need to report anything to
Dollar General. Ms. Valentine further argued she is entitled to reimbursement for
medical bills, loss of her .sick time from her primary employment with the State and
mileage relative to treatment with Dr. Williams.
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Dollar General countered it verbally provided a three-physician panel, from which
Ms. Valentine chose Concentra. No written documentation regarding Dollar General
offering a three-physician panel or Ms. Valentine's choice is presently available.
However, Ms. Valentine accepted the proffered care through her continued visits to
Concentra. Dollar General further argued the Workers' Compensation Law does not
allow for the recovery of lost wages from a second job. Further, Ms. Valentine did not
indicate that she seeks temporary disability benefits on her PBD, so that the issue is not
properly before the Court at this time. Dollar General claimed it never denied treatment;
rather, Dr. Hammond-Moulton cancelled the MRI. It contended Ms. Valentine sought
treatment on her own, and therefore it is not liable for the bills she presented. Dollar
General further asserted the submitted bills establish only the charged amounts, and not
that the treatments they relate to are reasonable and necessary. Dollar General claimed it
properly denied authorization of Dr. Williams' referral to an orthopedic specialist
because he is not the authorized treatment provider.
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 (2015). In general, an employee bears the
burden of proof on all prima facie elements of his or her workers' compensation claim.
Tenn. Code Ann. § 50-6-239(c)(6) (2015); see also Buchanan v. Carlex Glass Co., No.
2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Tenn. Workers' Comp.
App. Bd. Sept. 29, 2015).
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. Jd.
This lesser evidentiary standard "does not relieve an employee of the burden of
producing evidence of an injury by accident that arose primarily out of and in the course
and scope of employment at an expedited hearing, but allows some relief to be granted if
that evidence does not rise to the level of a 'preponderance of the evidence."' Buchanan,
2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6.
Dollar General Must Provide a Panel
The Workers' Compensation Law provides that employers must furnish, free of
charge to the employee, medical treatment made reasonably necessary by the work-
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related accident. See Tenn. Code Ann. § 50-6-204(a)(l)(A) (2015). The law further
states that, where an employee suffers an injury and expresses a need for medical care,
"the employer shall designate a group of three (3) or more independent reputable
physicians ... from which the injured employee shall select one (1) to be the treating
physician." Tenn. Code Ann. § 50-6-204(a)(3)(A)(i) (2015). In addition- and critical to
the determination of this issue - the statute reads:
The employer shall provide the applicable panel of physicians or
chiropractors to the employee in writing on a form prescribed by the
[bureau] []. . . In any case when the employee has been presented the
physician selection form but has failed to sign the completed form and
return it to the employer, the employee's receipt of treatment from any
physician provided in the panel after the date the panel was provided shall
constitute acceptance of the panel and selection of the physician from
whom the employee received treatment as the treating physician[.]
Tenn. Code Ann. § 50-6-204(a)(3)(D)(i)-(ii) (2015).
The plain language of the statute requires that a panel be offered in writing. Ms.
Valentine credibly testified she was not offered a written panel but that Dollar General
directed her to one provider, Concentra. In contrast, Mr. English's Affidavit merely
contends Dollar General, through a triage nurse, offered C-42 authorized physicians over
the phone. Dollar General offered no written proof of a panel. The Court gives greater
weight to Ms. Valentine's testimony and finds that Dollar General verbally directed her
to one provider.
A verbal directive to see one designated provider is insufficient under the statute.
Dollar General argued that Ms. Valentine accepted Concentra as the authorized treating
physician and is therefore bound by her choice. However, without proof of a written
panel or that Ms. Valentine failed to sign the appropriate form confirming her choice,
such presumed acceptance fails. Dr. Williams referred Ms. Valentine to an orthopedic
specialist. Dollar General must offer a panel of orthopedic specialists, in accordance with
Dr. Williams' recommendation.
Liability for Unauthorized Medical Treatment
Where the employer fails to give the employee the opportunity to choose the
ultimate treating physician from a panel of at least three physicians, the employer runs
the risk of having to pay the reasonable cost for treatment of the employee's injuries by a
physician of the employee's choice. McCord, supra, at* 13. The liability of an employer
for medical expenses incurred by the employee on his own turns on whether, under the
circumstances, the employee was justified in obtaining further medical services without
first consulting the employer. Pickett v. Chattanooga Convalescent and Nursing Home,
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Inc., 627 S.W.2d 941, 944 (Tenn. 1982). 3
In the present case, Ms. Valentine provided the only testimony regarding her
treatment with Dr. Williams, her primary care provider. After receipt of verbal notice of
the cancellation of her authorized MRI, she contacted Mr. English, who, according to her
unrefuted testimony, advised that she could see her own doctor if she desired. Ms.
Valentine proceeded to do so on two occasions, and Dr. Williams referred her for an
MRI. The MRI revealed problems significant enough for Dr. Williams to recommend
Ms. Valentine consult an orthopedic specialist. The Court finds Ms. Valentine justified
under the circumstances of this case in seeking additional medical care, especially after
encouragement to do so from Mr. English.
However, to require Dollar General to pay medical expenses related to this
treatment, proof must be offered that the visits to Dr. Williams and the MRI are related to
the workplace incident of July 25, 2015. The Court must further find that the bills
incurred are both reasonable and necessary. An injured employee "has the burden of
establishing the necessity and reasonableness of charges incurred under physicians not
designated or otherwise approved by the employer." Russell v. Genesco, Inc., 651
S.W.2d 206, 211 (Tenn. 1983).
With regard to necessity, the Court diligently scoured the medical records for a
direct causation statement relating Dr. Williams' treatment, including the MRI
prescription, to the July 25, 2015 event. Although a connection seems logical and makes
common sense, the Court remains bound by the requirements of the law on causation
matters such as this, especially when the medical records reveal a prior history of back-
related medical visits. Until Ms. Valentine comes forward with a statement from Dr.
Williams relating his treatment and recommendations to the injury, the Court cannot
order payment of the medical bills by Dollar General. The Court is likewise bound with
regard to the mileage requests.
Finally, on the issue of benefits for time taken off from Ms. Valentine's primary
employment, Dollar General correctly asserted that this Court has no authority to award
lost wages because the Workers' Compensation Law does not provide for such
reimbursement. See generally Tenn. Code Ann. § 50-6-207(1)-(2) (2015). Moreover, as
a general rule, "only issues that have been certified by a workers' compensation mediator
within a dispute certification notice may be presented to the workers' compensation judge
for adjudication." Tenn. Code Ann. § 50-6-239(b)(l) (2015). This issue did not appear
3
The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court " unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July 1, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers ' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063 , 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
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in the DCN.
In conclusion, as a matter of law, Ms. Valentine has come forward with sufficient
evidence from which this Court concludes she is likely to prevail at a hearing on the
merits on the issue of entitlement to a panel of physicians. Her requests for payment of
medical expenses and mileage reimbursement remain denied at this time, pending
medical proof of a causal relationship between the injury and the treatment prescribed,
including the MRI.
IT IS, THEREFORE, ORDERED as follows:
1. Medical care for Ms. Valentine's injuries shall be paid and Dollar General shall
provide Ms. Valentine with medical treatment for these injuries as required by
Tennessee Code Annotated section 50-6-204 (2015), to be initiated by Dollar
General providing Ms. Valentine with a panel of orthopedic physicians as required
by that statute. Ms. Valentine or the medical providers shall furnish Dollar
General the medical bills incurred for authorized treatment and Dollar General
shall timely pay them.
2. This matter is set for an Initial (Scheduling) Hearing on February 10, 2016, at
1:30 p.m. Central time.
3. 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)
(2015). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Bureau by email to
WCCompliance.Program@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.
4. For questions regarding compliance·, please contact the Workers' Compensation
Compliance Unit via email WCCom Iiane .Pro am tn.oov or by calling (615)
253-1471 or (615) 532-1309.
ENTERED this the 30th day of December, 2015.
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Initial (Scheduling) Hearing:
An Initial (Scheduling) Hearing has been set with Chief Judge Kenneth M.
Switzer, Court of Workers' Compensation Claims. You must call 615-532-9552 or
toll free at 866-943-0025 to participate in the Initial Hearing.
Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.
Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of
Indigency in accordance with this section shall result in dismissal of the
appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal,
may request, from the Court Clerk, the audio recording of the hearing for the
purpose of having a transcript prepared by a licensed court reporter and filing it
with the Court Clerk within ten calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
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Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within five business days of the filing ofthe appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order should include: (1) a statement summarizing the facts of the
case from the evidence admitted during the expedited hearing; (2) a statement
summarizing the disposition of the case as a result of the expedited hearing; (3) a
statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.
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APPENDIX
Exhibits:
1. Medical Records of Kimberly Valentine
2. Affidavit ofKimberly Valentine, December 4, 2015
3. Affidavit of Samuel W. English, December 8, 2015
4. First Report of Injury form, July 28, 2015
5. Email exchange between Kimberly Valentine and Samuel W. English, adjustor
6. Bill from Outpatient Diagnostic Center
7. Cigna Explanation of Benefits form
8. MapQuest mileage/directions
9. Edison Leave Requests with the State of Tennessee
Technical Record: 4
1. Petition for Benefit Determination, October 23, 20 15
2. Dollar General's pre-mediation position statement, November 11, 2015
3. Ms. Valentine's pre-mediation position statement, November 16, 2015
4. Dispute Certification Notice, December 3, 2015
5. Request for Expedited Hearing, December 3, 20 15
6. Employer's Response to Employee's Request for Expedited Hearing, December 9,
2015.
4
The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 30th day
ofDecember, 2015.
Name Certified Via Via Service sent to:
Mail Fax Email
Kimberly Valentine, X X Mmm1130@aol.com; 105
Self-represented Imperial Blvd., #1304,
Hendersonville TN 37075
Heather Douglas, X hdouglas@manierherod.com
Employer's Counsel
~S-=-~h u-m-,. Cl~eY-rJwk"o.~f.:~
.:=-o-u_r_t
Court of orkers' Compensation Claims
_ _ _ __
WC.CourtClerk@tn.gov
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