Tucker, David E. v. Star Transportation

FILED
March 19, 2018
TN COURT OF
WORKERS’ COMPENSATION
CLAIMS
Time 10:49 AM
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
David E. Tucker, ) Docket No.: 2015-01-0281
Employee, )
Vv. )
Star Transportation, ) State File No.: 51513-2015
Employer, )
and )
New Hampshire Ins. Co., ) Judge Thomas Wyatt
Carrier. )
)
EXPEDITED HEARING ORDER DENYING REQUEST TO CHANGE
TREATING PHYSICIAN
This claim came before the Court on March 15, 2018, for a telephonic Expedited
Hearing. The sole issue is David Tucker’s request to change treating physicians for his
shoulder injury. For the reasons set forth below, the Court denies Mr. Tucker’s request.
History of the Claim
Procedural Background
Mr. Tucker filed a motion requesting a change of physicians, which the Court
decided to consider within the framework of an Expedited Hearing.' The Court ordered
Mr. Tucker to file a supporting affidavit and other evidence. Star Transportation
responded in a timely fashion.
' Star Transportation requested an in-person hearing, to which Mr. Tucker objected based on the expense
and inconvenience of traveling to Chattanooga. The Court scheduled a telephonic hearing upon learning
that neither party intended to introduce live testimony. The Court invited Star Transportation and its
counsel to participate in-person.
Factual Background
Mr. Tucker injured his neck and right shoulder at Star on July 1, 2015. Star
accepted the injury as compensable and provided authorized treatment by a Nashville
orthopedist. Later, Star offered a panel of orthopedists nearer to Mr. Tucker’s home in
South Georgia, from which Mr. Tucker selected Dr. Matthew Lee. Dr. Lee performed
neck surgery in February 2016. He referred Mr. Tucker to Dr. Hector Mejia for right-
shoulder complaints after the neck surgery did not resolve Mr. Tucker’s pain.
In October 2016, Dr. Mejia surgically repaired Mr. Tucker’s right rotator cuff,
shoulder joint, and biceps tendon. Before the surgery, counsel for Star wrote Dr. Mejia
posing several causation questions. Dr. Mejia answered “Yes” to inquiries as to whether
the work injury Mr. Tucker described primarily caused his shoulder conditions and the
need for surgery.
After Mr. Tucker recovered from surgery, Dr. Mejia referred him to physical
therapists for functional capacity and impairment evaluations. The impairment
evaluation report stated that the therapist’s measurements “are intended solely to aid
you in your rating of the patient’s impairment.” (Bold font and underlining in
original.) In addition to providing measurements, the therapist calculated Mr. Tucker’s
impairment at seven percent to the whole person under the 4" edition of the AMA Guides
to the Evaluation of Permanent Impairment. Dr. Mejia signed the therapist’s report, and
in his office note wrote, “[a]t this point he is at MMI today[.]” He is 7% whole body FCE
results.”
In December, Mr. Tucker asked Dr. Mejia to complete the Physician Certification
Form needed to consider whether an employee is entitled to enhanced permanent partial
disability benefits. Mr. Tucker alleged that, when he asked for the form a month later,
Dr. Mejia responded that he would defer to the FCE and “did not want a bunch of
lawyers in his office asking questions.” Dr. Mejia has not completed the form.
Mr. Tucker cited several reasons for requesting another physician to treat his
shoulder. He contended he lost confidence in Dr. Mejia because the doctor’s treatment
proved ineffectual. Mr. Tucker also argued that Dr. Mejia has not met his duty under
Tennessee law to provide assessments of his injury. Specifically, he contended Dr. Mejia
? Dr. Mejia indicated on a subsequent status form completed on January 29, 2018, that Mr. Tucker was
not at MMI. In the same report, he ordered an MRI to assess Mr. Tucker’s continuing complaints of
shoulder pain.
3 Both parties obtained other impairment ratings. Star asked Drs. Mejia and Lee to review the 10%
whole-body rating from Star’s evaluator under the AMA Guides, 6" Edition, and they agreed to adopt it.
Mr. Tucker asked for an evaluation under the Bureau’s Medical Impairment Rating Registry (MIRR) and
received a 9% whole-body rating.
wrongfully deferred his impairment assessment to a physical therapist, who then rated the
impairment under a guideline other than that required by Tennessee law. Mr. Tucker
lastly complained that Dr. Mejia refused to complete the Physician Certification Form
required for consideration of enhanced disability benefits.
Star responded that no legal basis exists for allowing an employee to change
treating physicians under these circumstances. It pointed out that Dr. Mejia remains
willing and able to treat Mr. Tucker and, in fact, recently ordered an MRI to investigate
Mr. Tucker’s continuing complaints. Star further argued that dissatisfaction with Dr.
Mejia’s impairment-assessment methodology does not justify a change of treating
physicians, especially since Mr. Tucker invoked the MIRR process to obtain another
rating. Finally, Star argued the law does not require a treating physician to complete the
Physician Certification Form, and Dr. Mejia’s failure to do so confirms the opinion stated
in his records that Mr. Tucker can perform any job within his occupation so long as he
complies with recommended restrictions.
Findings of Fact and Conclusions of Law
In considering Mr. Tucker’s request for a new authorized treating physician, the
Court begins its analysis with Scott v. Integrity Staffing Solutions, TN Wrk. Comp. App.
Bd. LEXIS 6, at *7 (Aug. 19, 2015). There, the Appeals Board stated, “Tennessee courts
have long held that the employer in a workers’ compensation case generally has the right
to control medical treatment, assuming that the employer has complied with the
requirements of Tennessee Code Annotated section 50-6-204.” Scott held further that a
judge should not assess the appropriateness of the care provided by an authorized doctor
“absent some conflicting medical evidence or some other countervailing evidence
properly admitted into the record.” Id. at *8.
The Court first addresses Mr. Tucker’s argument that Dr. Mejia provided
ineffectual treatment that led to his loss of confidence in the doctor. Mr. Tucker did not
come forward with any medical evidence challenging the reasonableness or
appropriateness of Dr. Mejia’s treatment. Under Scott, this failure leaves the Court with
no legitimate basis to assess Dr. Mejia’s treatment.
Further, the Court knows of no authority allowing an employee to compel an
employer to provide a new panel simply because he claims a subjective loss of
confidence in his treating physician. In Limberakis v. Pro-Tech Security, Inc., 2017 TN
Wrk. Comp. App. Bd. LEXIS 53 (Sept. 12, 2017), the Appeals Board allowed an
employee to change treating physicians when the original doctor refused to see the
employee for ongoing complaints. However, the Board did not do so in Baker v.
Electrolux, 2017 TN Wrk. Comp. App. Bd. LEXIS 65, at *9-10 (Oct. 20, 2017), where
the treating physician had not refused to see the employee but did not offer treatment for
the employee’s pain complaints at his last visit. The Board held:
3
In short, while Employee may be dissatisfied with her panel selection,
she has pointed to no authority that would require Employer to provide
another panel of physicians under the circumstances presented. The
record contains no evidence to suggest that Dr. Burval is unable or
unwilling to treat Employee or that Employee has unsuccessfully
attempted to see him. Employer has discharged its statutory obligation
to provide medical benefits made reasonably necessary by accident, and
Employee is obligated to accept those benefits. See Tenn. Code Ann. §§
50-6-204(a)(1)(A) and (a)(3)(A)(i).
Here, Mr. Tucker does not contend that Dr. Mejia will not see him. In fact, Dr.
Mejia saw him recently and ordered an MRI. Instead, he alleges that his continued
shoulder pain and Dr. Mejia’s failure to properly assess his impairment and disabilities
justify his lack of confidence in Dr. Mejia, thus entitling him to a new panel. In view of
Baker, the Court holds that Mr. Tucker’s lack of confidence in Dr. Mejia, without more,
does not require Star to provide him a new treating physician.
The Court next turns to Mr. Tucker’s other arguments—that he is entitled to a new
panel because Dr. Mejia: (1) relied on a physical therapist who used the wrong guide to
assess impairment; and (2) failed to complete a form referenced by statute. In addressing
these issues, the Court recognizes that it may order an employer to provide another panel
when the original treating physician refuses to treat ongoing work-related symptoms.
However, the Court holds Dr. Mejia’s alleged inadequacies do not rise to this level.
The Workers’ Compensation Law contemplates that a treating physician will
assess an employee’s impairment. Tennessee Code Annotated section 50-6-204(a)(2)(A)
provides:
It is the intent of the general assembly that the administration of the
workers’ compensation system .. . [has] reasonable access to the
employee’s medical records and medical providers that are pertinent to
and necessary for the efficient resolution of the employee’s workers’
compensation claim in a timely manner.
The treating physician’s impairment opinion is an essential element in evaluating
an employee’s entitlement to disability benefits. Thus, the impairment rating falls within
the parameters of “records . . . that are pertinent to and necessary for the efficient
resolution of the employee’ workers’ compensation claim in a timely manner,” and the
Court holds that the law requires the treating physician to rate an employee’s impairment.
However, here, Dr. Mejia provided two opinions on impairment. He signed off on
the therapist’s rating under the 4" edition of the AMA Guides and agreed to adopt Dr.
4
Little’s rating under the 6" edition as his own. While Dr. Mejia’s alleged use of improper
methodologies may reduce the evidentiary weight assigned the ratings, it is not enough to
require Star to provide a new panel.‘
The Court also considers that the language cited above, when considered with
Tennessee Code Annotated section 50-6-242(a)(2)(B), contemplates that the treating
physician will complete the Physician Certification Form. However, the Court finds no
authority sanctioning the physician or the employer for failure to do so. Without that
authority, the Court must deny Mr. Tucker’s request for a new panel because of Dr.
Mejia’s failure to complete the subject form. Of course, Mr. Tucker may present
opinions other than Dr. Mejia’s on the issue of his disability.” While Dr. Mejia’s failure
to complete the form may result in more expense and inconvenience to Mr. Tucker, he is
not without a mechanism by which to establish enhanced permanent partial disability
benefits.
In view of the above, the Court denies Mr. Tucker’s request to change the
physician authorized to treat his shoulder injury.
IT IS SO ORDERED.
ENTERED this the 19th day of March, 2018.
/ Pranab ‘.
Judge Thomas Wyatt /
Court of Workers’ Compensation Claims
‘The Bureau’s rules set a monetary penalty as the only sanction against a physician for failing to timely
complete a C-32 Final Medical Report, which includes an assessment of impairment. See Tennessee
Compilation Rules and Regulations 0800-02-01-.16(4).
5 The fact that Tennessee Code Annotated section 50-6-242(a)(2)(B) affords a presumption of correctness
to the treating physician’s opinion on an employee’s disability means that disability opinions by others
are relevant under the statutory inquiry.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on this the 19th day of March, 2018.
Name Certified | FirstClass | Via | Via Email Address
Mail Mail Fax | Email
Daniel C. Todd, X | dan@dantoddlaw.com
Employee Attorney
Sarah H. Reisner, X | sreisner@manierherod.com
Adrienne Fazio, afazio@manierherod.com
Employer Attorneys
(onan Munson)
Penny Shruim, Court Clerk
WC.CourtClerk@tn.gov