Crumble, Mae v. Express Services

FILED
November 8, 2016
TN COURT OF
TENNESSEE BUREAU OF WORKERS’ COMPENSATION WORKERS’
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS Oe ania
AT JACKSON —
Time: §:29 A.M.
MAE CRUMBLE, ) Docket No.: 2016-07-0351
Employee, )
Vv. )
EXPRESS SERVICES, ) State File Number: 99792-2015
Employer, )
And, )
NEW HAMPSHIRE INS. CO., )
Insurance Carrier. ) Judge Allen Phillips
)
)
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS AFTER REMAND
This matter came before the undersigned Workers’ Compensation Judge upon
remand from the Tennessee Workers’ Compensation Appeals Board. The Appeals Board
vacated this Court’s August 30, 2016 order holding that Ms. Crumble was entitled to a
panel of orthopedic specialists from which she might choose an authorized physician.
The Appeals Board remanded the case to this Court for its determination of whether Dr.
Sioson was an authorized treating physician selected from a panel, whose opinion is
entitled to a presumption of correctness. If Ms. Crumble did select Dr. Sioson as a
treating physician, then the Court must determine if Ms. Crumble rebutted his causation
opinion by a preponderance of the evidence.
After reconsideration, this Court holds Dr. Sioson was not a treating physician
selected from a panel, and further holds that his opinion does not meet the applicable
legal standard for causation. Accordingly, for the reasons set forth below, the Court
holds Ms. Crumble is entitled to a panel of physicians.
Procedural History
Ms. Crumble filed a Petition for Benefit Determination (PBD) seeking medical
and temporary disability benefits for a right shoulder injury on November 14, 2015. (T.R.
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1 at 1).' When the parties did not resolve the contested issues through mediation, the
mediating specialist issued a Dispute Certification Notice (DCN) and listed under
“Defenses” the following: “Claim is not compensable based upon the opinion from the
paneled authorized treating physician.” (T.R. 2). Ms. Crumble requested an Expedited
Hearing, which the Court conducted on August 30, 2016.
At the Expedited Hearing, and as relevant to this remand,’ the Court found Ms.
Crumble testified credibly regarding the nature and timing of her injury, and came
forward with sufficient evidence to entitle her to a panel of orthopedic specialists to treat
her right shoulder. In so finding, the Court determined the only opinion in the record, that
of Dr. Sioson, was inadequate to either prove or disprove the relation of Ms. Crumble’s
injury to her work at Express. In the absence of a valid opinion, and because Ms.
Crumble need not prove causation by a preponderance of the evidence at an Expedited
Hearing, the Court found her testimony regarding her injury was sufficient to entitle her
to “a complete evaluation” of her alleged injury. (Expedited Hearing Order at 10).
This Court also noted its “serious doubts as to whether Express provided Ms.
Crumble with a valid panel.” /d. It did so because it believed Ms. Crumble’s testimony
“that she was steered toward Work Care” by Express. /d. The Court further questioned
the circumstances of the medical evaluation given the totality of the evidence and the
“incongruous testimony” of a purported provider at Work Care.
Accordingly, following the Expedited Hearing, this Court ordered that, “Ms.
Crumble shall receive medical benefits from Express Services for treatment of her right
shoulder injury of November 14, 2015, by Express Services providing a panel of
orthopedic specialists from which she might choose the authorized physician.” /d. at 11.
On appeal, the Appeals Board vacated this Court’s order and remanded the case
“for determination of whether Dr. Sioson is the ‘treating physician, selected by the
employee from the employer’s designated panel of physicians as contemplated in section
50-6-102(14)(E) such that his causation opinion is presumed to be correct and, if so,
whether the presumption was rebutted by a preponderance of the evidence.” Crumble v.
Express Employment Services, No. 2016-07-0351, 2016 TN Wrk. Comp. App. Bd.
LEXIS _, at *6-7 (Tenn. Workers’ Comp. App. Bd. Oct. 12, 2016).
"The Court will cite to the Technical Record and Exhibits as numbered in its original Expedited Hearing Order and
as set forth in the Appendix attached to this Order for Medical Benefits After Remand.
* The issue of notice, heard by the Court at the Expedited Hearing, was not raised as an issue in the appeal.
Therefore, the Court need not summarize its findings in regard to notice. However, the Court made many factual
findings and credibility determinations in context of Express’ notice defense and it includes those in the “Facts”
section of this order to the extent they are relevant to the determination of the issues on this remand.
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Facts
Express Services, a staffing agency, assigned Ms. Crumble to work at ARJ, a
manufacturing plant. On November 14, 2015, while operating a machine, Ms. Crumble
claims she felt a “pop” in her right shoulder. The Court found credible Ms. Crumble’s
description of the injury, and its effects, both by her words and by her demeanor.
At the Expedited Hearing, the parties contested whether Ms. Crumble provided
Express with proper notice of her injury. Again, the Court found Ms. Crumble more
credible and adopted her version of the facts.
On December 16, 2015, Ms. Jamie Johnson, Express’ representative for hiring
and placing employees, advised Sonya Williams, Express’ “Risk Manager,” of Ms.
Crumble’s reporting of an injury. In the presence of Ms. Johnson, Ms. Williams
completed an injury report, provided a panel of physicians, and presented Ms. Crumble a
“prescription card.” The panel presented to Ms. Crumble included the following
providers, listed verbatim as, Physicians Quality Care, Dr. James Diffee, HI, and Work
Care Resources, Inc. (Ex. 2.) Ms. Crumble chose Work Care. She described the
presentation of the panel as follows:
Q: And when they gave you that panel, how many doctors were on the panel?
A: Three.
Q: And did you choose one?
A: No.
Q: Tell the Court what happened there.
A: She told me . . Ms. Jamie did when they was at the table and they brung the
panel out, they was like, “These are the doctors that you have to choose from, but
these two doctors right here you won’t be able to see today or get into. Your best
bet is to take Work Care if you wants to be seen today,” so I wanted to be seen, so
I took Work Care.
(T. at 46).°
Ms. Johnson’s memory of the meeting consisted of this exchange:
Q: And you gave her a panel of doctors?
° The Court will cite the Transcript of Evidence filed with the Appeals Board as “T. at.”
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A: Yes.
Q: And did you tell her that if she chose Work Care, they could get her in that day
and see her? She could be seen quicker at Work Care than the other two?
A: I don’t know for sure.
(T. at 171).
Ms. Williams denied any attempt to influence Ms. Crumble regarding her choice of
physician. (T. at 190).
Ms. Crumble presented to Work Care on December 16, 2015. When she arrived,
Ms. Crumble testified that Amy Naylor, a nurse practitioner, drove her to another facility
to see Dr. Conrado Sioson. Ms. Crumble related that Ms. Naylor then engaged in a
conversation with Dr. Sioson before he entered the exam room. Once there, Dr. Sioson
stayed fewer than five minutes and, as part of his examination, asked Ms. Crumble to
raise her right arm. She admitted she told Dr. Sioson not to touch her because her
shoulder hurt.
Ms. Naylor explained Work Care’s “protocol” regarding workers’ compensation
patients. (Ex. 5.) Namely, there are two options; one, “for patients choosing Dr. Conrado
Sioson as their initial treating physician; Amy Naylor or her nurse will drive the patient
to...Dr. Sioson’s .. office... If any follow up appointments are necessary Amy Naylor
takes over care after initial treatment plan.” Jd. This option notes “little to ZERO wait
time for worker’s comp” at Dr. Sioson’s office “via Work Care Resources.” Jd. The
second option listed on the protocol allows selection of Amy Naylor as “their initial
provider.” Id.
Ms. Naylor testified that Dr. Sioson has no office at Work Care, but Work Care
pays him to see their workers’ compensation patients. Though Dr. Sioson is her
supervising physician, she knew neither his specialty nor his address. She confirmed his
name did not appear on the panel given to Ms. Crumble.
Dr. Sioson recorded the “Injury Date” as “11/14/15.” He noted Ms. Crumble said,
“[t]hat hurts” and asked him to “not touch” her. Dr. Sioson reviewed x-rays from Jackson
General and noted they were negative for any abnormalities. He memorialized this visit
by stating:
Ms. Crumble stated that during the course of her employment at ARJ that
her right shoulder began causing her pain but she continued to do her
job as normal. She stated she told several supervisors . . . that use of [a]
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machine was causing her right shoulder pain yet she never asked for
medical treatment.
Due to no one specific injury or date of injury and the timing of which this
injury was reported (one week after the termination of her work
assignment) it is not possible for me to classify this as a work related
injury.
(Ex. 4 at 34.)
Ms. Naylor testified she “usually” is the Work Care employee who drives
workers’ compensation patients to Dr. Sioson’s office because it is she who, “will be
typing his notes afterwards, [and] I know exactly what he wants and what he did and its
easier to do it that way.” (T. at 130). Ms. Naylor testified regarding her discussion with
Dr. Sioson, and what he related to her regarding Ms. Crumble’s injury, as follows:
Q: Dr. Sioson couldn’t say one way or the other whether this injury was work-
related or not. Is that what he told you?
A: Yes.
A: .. my understanding was it’s not possible to classify it as a work-related injury,
maybe it could or could not be.
Q: So that statement right there to you means that it could or could not be.
A: Yes, sir.
(T. 139-140; 141-142).
In response to a “MEDICAL QUESTIONNAIRE” sent by Express, Dr. Sioson
answered in the affirmative when asked if Ms. Crumble “identif[ied] a specific incident
or series of incidents that gave rise to this alleged injury[.]” Jd. at 43. He then stated
there was “no specific injury but only doing her job.” /d. He then stated “No” to the
question, “did Ms. Crumble’s alleged right shoulder injury arise primarily out of and in
the course and scope of her employment.” Jd.
Appeals Board Opinion
The Appeals Board addressed two issues: first, Express’ contention that this Court
erred by applying an incorrect legal standard in addressing medical causation.
Specifically, Express contended this Court failed to apply a presumption of correctness to
Dr. Sioson’s causation opinion and whether Ms. Crumble rebutted that presumption by a
preponderance of the evidence. Second, the Board considered Express’ contention that
this Court erred in ordering a panel of orthopedic specialists because it had provided a
valid panel from which Ms. Crumble had chosen a physician who had not made an
orthopedic referral. Crumble, at*4-5.
In addressing these issues, the Board first noted that this Court primarily focused
upon the standard set forth in 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) and expounded upon in Lewis v. Merry Maid, No. 2015-06-0456,
2016 TN Wrk. Comp. App. Bd. LEXIS 19 (Tenn. Workers’ Comp. App. Bd. Apr. 20,
2016), as to whether Ms. Crumble came forward with sufficient evidence for the Court to
determine that she would prevail at a hearing on the merits. Jd. at *5. However, both
McCord and Lewis, unlike this case, dealt with situations where a panel of physicians had
not been provided. Hence, this Court erred by ending its analysis with a determination
only as to whether or not Ms. Crumble had come forward with sufficient evidence from
which this Court might determine she would prevail at a full hearing. /d. at 6.
In addressing the remedy for what it deemed this Court’s incomplete analysis, the
Board first stated that, “[i]n their pre-hearing briefs submitted to the trial court and in
their briefs on appeal, both parties addressed whether Dr. Sioson is an authorized treating
physician and whether his causation opinion is entitled to a presumption of correctness.”
Id. at*6. Because it determined this Court “did not address these issues” and that “it is not
[their] place to do so in the first instance,” the Board remanded the case for a
determination of whether Dr. Sioson was a treating physician whose opinion was entitled
to a presumption of correctness. /d.
Findings of Fact and Conclusions of Law
Standard applied
Because this case is in a posture of an Expedited Hearing, Ms. Crumble need not
4 The Court notes that only Express argued this issue before the Expedited Hearing in a Pre-Hearing Brief,
designated as T.R. 4. Ms. Crumble did not submit a pre-expedited hearing brief before the Expedited Hearing. In its
pre-hearing brief, Express asserted only that, “Employee selected Work Care Resources off the panel of physicians
that was presented to her.” (T.R. 4 at 2). Express then merely asserted that Dr. Sioson was an “ATP” (authorized
treating physician) whose opinion is presumed correct. Accordingly, this Court was not privy to any specific
arguments in “briefs” at the Expedited Hearing regarding the issue. This Court is not privy to the arguments the
parties made on appeal.
prove every element of her claim by a preponderance of the evidence in order to obtain
relief. McCord yv. 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).
Instead, she must come forward with sufficient evidence from which this Court might
determine she is likely to prevail at a hearing on the merits. /d.; Tenn. Code Ann. § 50-6-
239(d)(1) (2015).
Provision of a valid panel of physicians
As directed by the Appeals Board, the first issue for resolution is whether Express
provided Ms. Crumble a proper panel of physicians. The Court finds it did not.
The Workers’ Compensation Law sets forth the respective duties of an injured
employee and her employer in regards to medical treatment in Tennessee Code
Annotated section 50-6-204(a)(3)(A)(i) as follows:
The injured employee shall accept the medical benefits afforded under this
section; provided that in any case when the employee has suffered an injury
and expressed a need for medical care, the employer shall designate a group
of three (3) or more independent reputable physicians, surgeons,
chiropractors or specialty practice groups if available in the injured
employee's community or, if not so available, in accordance with
subdivision (a)(3)(B), from which the injured employee shall select one (1)
to be the treating physician.
In Lindsey v. Strohs Companies, 830 S.W.2d 899 (Tenn. 1992), the Tennessee
Supreme Court explained that the above statute imposed “concomitant duties” upon the
parties with respect to authorized medical treatment. Namely, an employer has a duty to
furnish medical treatment and the injured employee has a corresponding duty to accept
the treatment. /d. at 902. However, it is the employee who has the privilege of selecting
her physician. In this case, the question of whether Ms. Crumble selected the physician is
outcome determinative.
Beginning with the most glaring defect, Dr. Sioson was not on the panel that
Express provided to Ms. Crumble. Hence, she could not have chosen him as a treating
physician. Instead, Ms. Crumble chose “Work Care” and she testified her “assumption”
was that she would be seen at Work Care. (T. at 57).That was a fair, and in fact the only
logical assumption she might have made. The Court recognizes an employer might place
a “specialty” practice group” on a panel but, in this instance, it did not. The evidence
shows Work Care was not a group of “specialists.” In fact, the evidence showed that only
a nurse practitioner was on site and, even she was not sure of Dr. Sioson’s actual
specialty if he were a Work Care physician.
The Court finds Express did not afford Ms. Crumble the “privilege” of selecting a
physician; instead, it placed her in a position of either choosing Work Care or facing what
was conveyed as a delay in receiving treatment. The Court believes the true dialogue
during presentation of the panel was the quoted testimony of Ms. Crumble to the effect
that, “[y]Jour best bet is to take Work Care if you want to be seen today.” The Court
reaches this conclusion after having the benefit of personally observing the witnesses and
hearing their live testimony. The Court notes Express, through Ms. Johnson offered only
that, “I don’t know for sure” when asked if she told Ms. Crumble she could only be seen
“today” if she chose Work Care. The Court, in its Expedited Hearing Order, has already
found Ms. Crumble’s version of the facts to be the most credible on the notice issue and
reiterates those determinations on the current issue.
The Court also notes this is Ms. Crumble’s first workers’ compensation claim.
She never encountered a meeting to choose a physician before December 16, 2015.
Moreover, her unrebutted testimony at the Expedited Hearing was that she was a special
education student. She testified to difficulties reading “big words” and demonstrated that
limitation when asked to read a medical record at the hearing. The Court believes her
intellectual limitations are real and appreciates the role those limitations played when
thrust into a meeting with management to choose a physician.
Beyond the meeting at Express, the Court finds, as it did at the Expedited Hearing,
the “protocol” followed by Work Care indicates an employee in the position of Ms.
Crumble could not foresee being transferred via vehicle from her panel selection’s office
to Dr. Sioson. Ms. Naylor explained that Express employees have “two options” when
seeing a treating physician. One such option includes Dr. Sioson. Of course, that “option”
involves “little to ZERO wait time,” just as Express personnel told Ms. Crumble when
presenting the panel. But, an employee has no way of knowing that Dr. Sioson is the
provider to whom they are sent at the outset. Likewise, if the “protocol” is presented to
employees at Work Care, then the employee could not “choose” Dr. Sioson at the outset
since his name appears only after arrival at Work Care. The Court recognizes employers
routinely utilize the name of “practice groups” on panels, as the statute allows. Further,
such inclusions remove absolute certainty regarding what provider an employee may see.
However, such is not the case here. Ms. Naylor transported Ms. Crumble to an entirely
different clinic not contained on the provided panel. Such steering to one provider to the
exclusion of others is antithetical to a knowing “selection” by the injured employee.
Based on the totality of the evidence, the Court holds Express failed to provide
Ms. Crumble with a valid panel of physicians from which she had the privilege of
selecting a treating physician.
Causation
Absent the privilege of selecting a treating physician, the Court finds Dr. Sioson
was not a “treating physician,” selected from a panel and, holds as a matter of law that his
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opinion is not entitled to any presumption of correctness. After review of Dr. Sioson’s
opinion without any presumption of correctness, the Court determines it does not meet
the applicable legal standard.
As the Court noted in its Expedited Hearing Order, Dr. Sioson stated, “[iJt is not
possible for me to classify this as a work-related injury.” (Ex. 4 at 34.) But, when
directly asked whether Ms. Crumble “identif]ied] a specific incident or series of incidents
that gave rise to this alleged injury,” he replied, “Yes.” Jd. at 43. He then stated there
was “no specific injury but only doing her job.” Jd. However, Dr. Sioson noted an injury
date of November 14, 2015, the date asserted by Ms. Crumble throughout this case. Jd. at
34. Further, he noted she reported use of the machine at ARJ caused her pain but that she
“never asked for medical treatment.” /d. Again, this is consistent with Ms. Crumble’s
testimony that she waited to seek medical treatment thinking her shoulder would
improve. The Court finds Dr. Sioson’s record confirms Ms. Crumble’s consistent and
believable testimony that she suffered a specific incident on November 14, 2015.
Ms. Naylor’s testimony also is instructive on the sufficiency of Dr. Sioson’s
causation opinion. Ms. Naylor testified she typed the records of Dr. Sioson. (T. at 130).
Further, she confirmed that Dr. Sioson stated he could not determine the cause of Ms.
Crumble’s injury. (T. at 141-142). The language in his note stated, “it is not possible for
me to classify this as a work related injury.” (Ex. 4 at 34). He explained this to Ms.
Naylor that he “couldn’t say one way or the other whether this injury was work-related or
not.” (T. at 139-140). Accordingly, the Court holds that Dr. Sioson did not render a
definitive opinion. See, McCord v. Advantage Human Resourcing, No. 2014-06-0063,
2015 TN Wrk. Comp. App Bd. LEXIS 6, at *17 (Tenn. Workers’ Comp. App. Bd. Mar.
27, 2015). Thus, “she has satisfied her burden at this interlocutory stage to support an
Order compelling Employer to provide a panel of physicians.”
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Crumble shall receive from Express a valid panel of physicians or specialty
groups pursuant to Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) to
evaluate and treat her right shoulder injury of November 14, 2015.
2. This matter is set for an Initial (Status) Hearing on February 22, 2017, at 9:00 a.m.
Central time. i ae ee |
VAC
ENTERED this the 8" day of N vembe 16.\
|
LA
Judge Allen PiNIipsy VU!
Court of Workers’ Compensati@n Claims
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Initial (Status) Hearing:
An Initial (Status) Hearing has been set with Judge Allen Phillips, Court of
Workers’ Compensation Claims. You must call 731-422-5263 or toll-free at 855-
543-5038 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
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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
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.
. 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 of the 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. Affidavit of Mae Crumble;
Choice of Physician Form (C-42);
Medical Records of Jackson-Madison Co. General Hospital;
Medical Records of Work Care Resources;
Workers’ Compensation Protocol for Work Care Resources; and,
Express Services’ Handbook Receipt Form electronically signed by Ms. Crumble.
ae =
Technical record:
1. Petition for Benefit Determination;
2. Dispute Certification Notice;
3. Request for Expedited Hearing; and,
4. Employer’s Brief In Opposition To Employee’s Petition For Medical Benefits And
Temporary Total Disability Benefits.”
> 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 8" day of
November, 2016.
Chris G. Rowe, Esq.,
Employer’s Counsel
Name Via Email Service sent to:
Edward L. Martindale, Esq. x emartindale@martindalelaw.net
Employee’s Counsel
Greg Fuller, Esq. x ghfuller@mijs.com
cgrowe@mijs.com
Jute sum
Penny Shrum, Clerk of Court
Court of
orkers’ Compensation Claims
WC.CourtClerk@tn.gov
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