Bach, Evan v. Lynn Fogleman Construction

FILED
Dec 04, 2018
12:08 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT GRAY
EVAN BACH, ) Docket No. 2018-02-0298
Employee, )
v. )
LYNN FOGLEMAN ) State File No. 51112018
CONSTRUCTION, )
Employer, )
and )
PLAZA INSURANCE COMPANY, ) Judge: Brian K. Addington
Insurance Carrier. )
ORDER DENYING MEDICAL BENEFITS
This matter came before the Court on Evan Bach's Request for Expedited Hearing
seeking medical benefits for his January 15, 2018 work-related accident at Lynn
Fogleman Construction (Fogleman). Mr. Bach requested a decision on the record.
Fogleman did not object.
After reviewing the file, the Court determined it would make an on-the-record
determination rather than conduct an in-person evidentiary hearing, holding it needed no
additional information to determine whether Mr. Bach is likely to prevail at a hearing on
the merits.
The Court sent a docketing notice giving the parties seven business days to object
to the contents of the record and to file briefs. Fogleman filed a Position Statement; Mr.
Bach did not. The case came before the Court on December 3, 2018, on the issue of
whether Mr. Bach is entitled to a panel of specialists to address his vertigo and hearing
complaints. Because no physician recommended treatment or referral for treatment of
Mr. Bach's complaints, the Court denies the requested relief.
1
Claim History
Mr. Bach fell from a ladder at work and underwent emergency medical treatment.
The ER providers diagnosed multiple ribs fractures, a subarachnoid hemorrhage, pleural
effusion and a collapsed lung.
Mr. Bach saw several specialists for his emergency care. Dr. Paris Patel treated
the pleural effusion. Dr. Richard Carter addressed his collapsed lung and referred him to
a physiatri · t to address his fractured ribs. Fogleman provided a panel, and Mr. Bach saw
Dr. William Platt. 1 Dr. Platt provid d con ervative treatment for Mr. Bach broken ribs
and noted the subarachnoid hemorrhage had resolved. All three doctors placed Mr. Bach
at maximum medical improvement and did not recommend further treatment.
Mr. Bach alleged he continues to suffer from hearing loss and vertigo and requests
a panel of physicians for treatment. Mr. Bach originally insisted in his Petition for
Benefit Determination that Fogleman provided him with an invalid panel, but in his
Request for Expedited Hearing asserted that it failed to provide a panel of specialists. 2
Fogleman argued that it provided emergency treatment and a panel of physicians when
the emergency physician made a referral. As no physician recommended further
treatment, it argued it should not be forced to provide another panel to Mr. Bach.
Findings of Fact and Conclusions of Law
Mr. Bach has the burden of proof but need not prove every element of his claim by
a preponderance of the evidence to receive relief at an expedited hearing. Instead, he
must present sufficient evidence he is likely to prevail at a hearing on the merits.
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*7-8, 9 (Mar. 27, 2015).
Mr. Bach has not presented to the Court a medical opinion that he needs treatment
to address his alleged vertigo and hearing loss. Rather, he relied on his own assertions
and asked the Court to make this medical determination. The Appeals Board previously
noted that judges are not well-suited to make independent medical determinations
without expert medical testimony supporting such a determination. See Scott v. Integrity
Staff Sol., 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8 (Aug. 18, 20 15). Likewise,
parties and their lawyers cannot rely solely on their own medical interpretations of the
evidence to successfully support their arguments. Lurz v. Int 'I Paper Co., 2018 TN Wrk.
Comp. App. Bd. LEXIS 8, at *16-18 (Feb. 14, 2018).
1
Mr. Bach did not sign the panel but chose to see Dr. Platt. When an employee seeks treatment from a
physician off a panel, it constitutes acceptance of the panel. See Tenn. Code Ann. § 50-6-204
(a)( 1)(D)(ii).
2
Mr. Bach did not explain why he considered the panel invalid.
2
The medical evidence indicates Mr. Bach received treatment by authorized
physicians who placed him at maximum medical improvement and concluded he does not
need additional treatment. Thus, the Court holds that Mr. Bach has not established he is
likely to succeed at a hearing on the merits as to his right to a panel of specialists for
hearing loss and vertigo.
IT IS THEREFORE, ORDERED as follows:
1. Mr. Bach's requested relief is denied at this time.
2. This case is set for a Status Hearing on January 18, 2019, at 2:00 p.m. The
parties must call 855-543-5044 to attend the hearing. Failure to call may result in
a determination of the issues without your participation.
ENTERED December 4, 2018.
IS/ Brian K. Addington
BRIAN K. ADDINGTON, JUDGE
Court of Workers' Compensation Claims
Information Considered:
1. Mr. Bach's Rule 72 Declaration
2. Request for Expedited Hearing
3. Petition for Benefit Determination
4. Dispute Certification notice
5. Submitted Medical Records
6. Suspension of Benefits Letter to Mr. Bach
7. Employer's Position Statement and Exhibits
8. Employer's Response to Docketing Notice
3
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on December 4, 2018.
Name Certified Via Via Service sent to:
Mail Fax Email
Kathleen Lewis, klewis@forthepeople.com
Employee's Attorney X zwiley@forthepeople.com
Daniel Howard,
Employer's Attorney X daniel.howard@sa-trial.com
4
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -
My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -
My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ _ ___
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ __ _
(FMV) - - - - - -- - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ _ __
(FMV) - - -- - - -- - -
)
Other $ _ _ _ __ Describe:_ _ _ __ _ _ _ _ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082