Scott, supra, at * 12.
In this instance, the only medical opinion offered regarding causation was that of
Dr. Bolt, who provided a medical evaluation at the request ofFGCC. Given that he is not
an authorized treating physician, his opinion is not entitled to a presumption of
correctness. See Tenn. Code Ann. § 50-6-204(a)(3) (2016). Nevertheless, his opinion as
to causation was that, based on a number of factors, Ms. Berdnik's current condition was
not more than 50% caused by the September 4, 2016 work incident. There is no other
medical opinion regarding causation.
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For the reasons stated above, the Court concludes Ms. Berdnik failed to provide
sufficient evidence from which the Court can determine she is likely to prevail at a
hearing on the merits regarding causation. As a result, her request for payment of
previous medical ·expenses, temporary total disability benefits, and discretionary costs
involving fax expenses is denied at this time.
However, Ms. Berdnik does not have to prove compensability in order to establish
that FGCC is obligated to provide a panel of physicians from which she may choose an
authorized physician. McCord at * 16, 17. In McCord, the Workers' Compensation
Appeals Board found that:
[W]hether the alleged work accident resulted in a compensable injury has
yet to be determined. Therefore, while Employee has not proven by a
preponderance of the evidence that she suffered an injury arising primarily
out of and in the course and scope of employment, she has satisfied her
burden at this interlocutory stage to support an Order compelling Employer
to provide a panel of physicians.
!d. Thus, the question becomes whether Ms. Berdnik has provided sufficient evidence to
satisfy "her burden at this interlocutory stage" that she is entitled to a panel of physicians.
!d. at 17. See also Lewis v. Molly Maid, 2016 TN Wrk. Comp. App. Bd. LEXIS 19, at *9
(Apr. 20, 20 16).
The administrative rules governing an employer's obligation to provide a panel
state, "[u]pon notice of any workplace injury, other than a minor injury for which no
person could reasonably believe requires treatment from a physician, the employer shall
immediately provide the injured employee a panel of physicians that meets the statutory
requirements for treatment of the injury." Tenn. Comp. R. & Regs. 0800-02-01-.25(1)
(2015).
In Ms. Berdnik's case, it is undisputed that she provided statutory notice to FGCC
of a work-related incident involving her low back that occurred on September 4, 2016.
However, FGCC did not provide her with a panel of physicians as required by law.
Furthermore, Dr. Bolt's opinion was heavily predicated upon the accuracy of Infinity
Health Care's medical notes, which Ms. Berdnik disputes, and he clearly felt Ms. Berdnik
at least suffered a "significant and considerable exacerbation/aggravation" as a result of
her work-related incident. As a result, the Court holds Ms. Berdnik has satisfied her
burden at this interlocutory stage to require FGCC to provide her with a panel of back
specialists from which she may choose an authorized physician in compliance with
Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) (20 16).
5
IT IS, THEREFORE, ORDERED that:
1. FGCC shall provide a panel of back specialists within Ms. Berdnik's community
from which she may choose an authorized physician for evaluation, and if
necessary, treatment of her alleged back injury in accordance with Tennessee Code
Annotated section 50-6-204(a)(3)(A)(i) (2016).
2. Ms. Berdnik's requests for temporary disability benefits and reimbursement of
expenses are denied at this time, but may be reconsidered following examination by
an authorized treating physician.
3. This matter is set for a Scheduling Hearing on June 2, 2017, at 2:00p.m. Central
Time. The parties must call 615-253-0010 or toll-free at 855-689-9049 to
participate in the Hearing. Failure to call in may result in a determination of the
issues without your further participation.
ENTERED THIS THE 3J"DA~ -
Robert V. Durham, Judge
Court of Workers' Compensation Claims
APPENDIX
Exhibits:
1. First Report of Injury
2. Notice of Denial
3. Affidavit of Patrice Berdnik
4. Affidavit of Dalton Berdnik
5. Medical records from Infinity Health Care Center (for I.D.)
6. Medical records of Cumberland Medical Center
7. Report from Dr. Patrick Bolt
8. Email from Ms. Berdnik to Dan Linskens
9. Performance Review
10. Photograph of Snack Shop
11. Wage Statement
12. Medical bills
13. Summary ofMs. Berdnik's expenses
14. Various photographs
15. Photograph of ice machine
16. Photograph of ice machine upstairs
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17. Photograph of stairwell
18. Photograph of door to snack shop
19. Photograph of snack shop
20. Records ofDr. Stacy Carlton
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer's Motion for Extension of Deadlines
5. Order Granting Employer's Motion for Extension
6. Employer's Position Statement
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Benefits was sent to the following recipients by the following methods of
service on this the 31
_st day of March, 20 17.
Name Certified Via Via Service sent to:
Mail Fax Email
Patrice Berdnik X Plkkwkan58@.gmail.com
Mary Dee Allen X mallen@wimberlylawson.com
P nny S r m, Clerk of Court
Court o orkers' Compensation Claims
WC.CourtCierk@tn.gov
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