Swafford, Carl v. Wal-Mart Associates, Inc

FILED
Jan 16, 2020
01:20 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Carl Swafford, ) Docket No. 2018-01-0036
Employee, )
Vv. )
Wal-Mart Associates, Inc., ) State File No. 1581-2017
Employer, )
And )
New Hampshire Insurance Company, ) Judge Audrey A. Headrick
Carrier. )
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
This case came before the Court on Carl Swafford’s Request for an Expedited
Hearing on the record. Mr. Swafford requested a valid panel of physicians and penalty
assessment for failure to provide a valid panel.' Wal-Mart denied that Mr. Swafford is
entitled to another panel, and the Court agrees.
History of Claim
While using a pallet jack on January 6, 2017, Mr. Swafford injured his right hip.’
After receiving emergency treatment, Mr. Swafford treated with Physicians Care, who
referred him to an orthopedist.
' Mr. Swafford requested a valid wage statement since he worked for Wal-Mart for fewer than fifty-two
weeks preceding his injury. Wal-Mart later filed the wage statement of a similarly-situated employee,
who earned the same hourly rate as Mr. Swafford. Mr. Swafford also requested a “valid impairment
rating,” which he can request through the Medical Impairment Rating Registry.
> The parties dispute whether the correct date of injury is January 5 or 6.
Wal-Mart provided Mr. Swafford, who resides in Hixson, with an orthopedic
panel located in McMinnville, Hixson, and Chattanooga. McMinnville is located
approximately sixty-seven miles from Mr. Swafford’s home. Mr. Swafford ultimately
selected Dr. Matthew Bernard at the Center for Sports Medicine in Hixson.
After reviewing a right-hip MRI, Dr. Bernard diagnosed a labral tear, stated with
“greater than 50% probability that [it was] directly related to his work related injury,” and
referred Mr. Swafford to Dr. Benjamin Miller in his practice for surgical consideration.
In addition to the labral tear, Dr. Miller diagnosed a gluteus medius tendonitis and
provided an injection. Dr. Miller referred Mr. Swafford to his practice partner, Dr. Shay
Richardson, for a Tenex procedure.
After Mr. Swafford underwent the Tenex procedure, Drs. Richardson, Bernard,
and Miller continued to intermittently treat him. Although Dr. Bernard stated in
November 2017 that Mr. Swafford’s hip did “not demonstrate osteoarthritis,” Dr. Miller
determined in May 2018 that his main problem was osteoarthritis. Dr. Miller
recommended a total hip arthroplasty and referred him to Dr. Bernard for a surgical
opinion. Dr. Bernard recommended the surgery but only if a cortisone injection provided
relief.
The cortisone injection did not provide relief, so Dr. Bernard did not recommend
surgery. Instead, he diagnosed Mr. Swafford with “[h]ealed tendinosis” and “underlying
chronic non-job related osteoarthritis.” As to the osteoarthritis, Dr. Bernard released him
to return on an as-needed basis. Dr. Bernard reiterated that he did “not believe [the
osteoarthritis was] causally related at all to his injury and [was] simply an incidental
finding on MRI.”? Since Dr. Richardson treated Mr. Swafford’s tendonitis and
performed the Tenex procedure, Dr. Bernard deferred to his opinion on causation,
treatment, maximum medical improvement, and impairment.
Dr. Richardson agreed with Dr. Bernard that Mr. Swafford’s osteoarthritis was not
work-related but determined that his tendinosis was more than fifty percent related to his
work injury. He also concluded that “the majority of [Mr. Swafford’s] pain [was] due to
his arthritic hip joint, and not workers comp related.” While Dr. Richardson indicated on
the Final Medical Report that he anticipates the need for future medical treatment, his last
office note contained no recommendation for further treatment or evaluation for the
tendinosis.
* In its response, Wal-Mart moved to dismiss Mr. Swafford’s right-hip osteoarthritis claim on grounds of
compensability. However, the expedited hearing process is designed to address interlocutory issues.
Wal-Mart relied on matters outside of the pleadings, which converts it to a Rule 56 motion for summary
judgment. A Rule 56 motion requires a statement of undisputed facts. Therefore, the Court denies the
motion to dismiss.
Later, at Mr. Swafford’s request, Wal-Mart offered him a new panel of
orthopedists located in Chattanooga and Cleveland. Cleveland is approximately thirty
miles from Mr. Swafford’s home. He declined to make a selection, asserting it did not
contain physicians located in his community.
Findings of Fact and Conclusions of Law
Standard Applied
Mr. Swafford must present sufficient evidence from which the Court can
determine he is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-
239(d)(1) (2019). The Court holds he did not.
Analysis
Medical Benefits
The preliminary issue is whether Wal-Mart provided a valid panel of orthopedic
physicians to Mr. Swafford, who lives in Hixson. The original panel listed providers
located in McMinnville, Hixson, and Chattanooga with the McMinnville practice located
approximately sixty-seven miles from Mr. Swafford’s home. Tennessee Code Annotated
section 50-6-204(a)(3)(A)(i) requires that an employer “shall designate a group of three
(3) or more independent reputable physicians . . . if available in the injured employee’s
community.” (Emphasis added). The Court finds that the original panel listing a
McMinnville practice was invalid and did not comply with the statute.
The Court next turns to the validity of the subsequent orthopedic panel. The new
panel listed physicians located in Chattanooga and Cleveland, with the Cleveland practice
located within thirty miles of Mr. Swafford’s home. While the distance from Mr.
Swafford’s home may have been inconvenient, the Court finds that Wal-Mart remedied
the defective panel by providing one that was reasonably within his community. The
Court holds that Mr. Swafford shall select a physician from the newly-submitted panel
for evaluation and treatment of his work-related right-hip condition. Therefore, the Court
denies Mr. Swafford’s request for another panel.
IT IS, THEREFORE, ORDERED as follows:
1. The Court denies Mr. Swafford’s request and declines to refer Wal-Mart for
consideration of possible penalty assessment.
2. This case is set for a Status Hearing on Wednesday, March 25, 2020, at 2:00
p.m. Eastern Time. The parties must call (423) 634-0164 or toll-free at (855)
383-0001 to participate. Failure to call may result in a determination of the issues
without the party’s participation.
ENTERED January 16, 2020.
Ci BAW doa Lc
AUDREY. HEADRICK
Workers’ Compensation Judge
Exhibits:
ANRWNE
APPENDIX
First Report
Panels (Center for Sports Medicine; Physicians Care)
Responses of Dr. Shay Richardson dated February 28, 2019
Medical records of Physicians Care
Medical records of Center for Sports Medicine & Orthopaedics
Declaration of Betty Miller:
a. Medical records
b. Wage Statement
c. Affidavit of Carl Swafford
Technical record:
BO et LA ge ee
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Employee’s Position Statement
Docketing Notice
Motion for Time Extension
Proposed Agreed Order Allowing Time Extension
Employer’s Response in Opposition to Employee’s Request for Expedited
Hearing and Motion to Dismiss
I certify that a copy of this Order was sent as indicated on January 16, 2020.
CERTIFICATE OF SERVICE
Name Certified | Email | Service sent to:
Mail
Scott N. Davis, x sdavis@noogalaw.com
Employee’s Attorney
Celeste M. Watson, Xx celeste@cmwatsonlaw.com
Employer’s Attorney
Eames oan
>| pof naar \)
PENNY SHRWM, COURT CLERK |
we.courtclerk@tn.gov
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:
l.
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.
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.
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. Ifa 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.
If you wish to file a position statement, you must file it with the court clerk within fen
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.
4
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
Www. to.pov/labor-wid/wromp.shtmt
we.courtclerk@th.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Com pensation Claims at
to the Warkers’ Campensation Appeals
Board. [List the date(s) the order(s) was filed in the court clerk's office]
Judge
Statement of the Issues
Provide a short and plain statement of the Issues on appeal or basis for relief on appeal:
Additionai Information
Type of Case [Check the most appropriate item]
CJ) Temporary disability benefits
CL) Medical benefits for current injury
() Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: DEmployer DEmployee
Address:
Party’s Phone: Email:
Attorney’s Name: BPR#:
Attorney's Address: Phone:
Attomey’s City, State & Zip cade:
Attorney’sEmails ess
* Attach an additional sheet for each additional Appellant *
18-1099 rev. 10/18 Page 1 of 2 RDA 11082
Emplayee Name: SFa: - DOL:
Appellees)
Appellee (Opposing Party). = tl Hearing: (Employer (Employee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney's Name; BPR#:
Attorney's Address: Phone:
Attorney's City, State & Zip cade:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mall, postage prepaid, to all parties
and/or thelr attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of ,20_
[Signature of appellant or attorney for appellant]
LB-1099_ rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers' Compensation
!,
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
, having been duly swom according to law, make oath that
because of my poverty, | 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:
3. Telephone Number:
5. Names and Ages of All Dependents:
2. Address:
4. Date of Birth:
Relationship,
Relationship:
Relationship:
Relationship:
6. |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. | receive or axpect to receive money from the foltowing sources:
AFDC $
SSsl $
Retirement $
Disability §
Unemployment $
Worker's Comp.$
Other $
LB-1108 (REV 11/15)
per month
per month
per month
per month
per month
per month
per month
beginning
beginning.
beginning
beginning
beginning
beginning
beginning
RDA 11082
9. My expenses are:
Rent/House Payment $ permonth 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 3 per month
Other $ per month (describe: _ }
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ (FMV)
Other $ Describe:
11. My debts are:
Amaunt Owed To Whom
thereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of
, 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15)