De Rosa, Debra v. I & MJ Gross Co.

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Debra De Rosa, ) Docket No. 2020-06-0216
Employee, )
V. )
1 & MJ Gross Co., ) State File No. 76351-2019
Employer, )
And )
Nationwide Mutual Ins. Co., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER
Debra DeRosa injured her wrist while working for I & MJ Gross, which authorized
treatment. She asserted that the carrier never offered a panel of physicians or even
discussed with her that she had the right to choose from a list of three physicians. I & MJ
Gross denied both allegations. Ms. DeRosa requested additional treatment with a new
doctor.
After an expedited hearing on September 16, the Court finds that the carrier twice
fulfilled its statutory obligation to offer a panel. Additionally, I & MJ Gross authorized
over two months’ treatment with Dr. John Weaver, which treatment Ms. DeRosa accepted.
Because Dr. Weaver placed her at maximum medical improvement, released her without
restrictions, and anticipated no need for further treatment, the Court denies Ms. DeRosa’s
request for additional treatment.
History of Claim
Ms. DeRosa worked for I & MJ Gross in housekeeping. On August 22, 2019, she
fell while cleaning a light fixture, injuring several body parts, but the current, sole dispute
revolves around her right wrist only—whether I & MJ Gross offered a panel and her
entitlement to additional treatment for it.
Immediately after the fall, Ms. DeRosa sought emergency treatment. Providers
1
ordered x-rays, which showed a “tiny acute avulsion fracture...seen from the ulnar
styloid[.]” The discharge documents recommended follow up with Dr. Martha George, an
orthopedist. However, Ms. DeRosa never saw Dr. George but rather came under Dr. John
Weaver’s care.
The parties disagree regarding the circumstances that led to Dr. Weaver’s treatment.
Ms. DeRosa testified that, on August 26, she spoke with the carrier’s claims representative,
Laura Shoop, by phone. She told Ms. Shoop that the ER had referred her to Dr. George.
Ms. Shoop made an appointment with Dr. George, who practices with Tennessee
Orthopedics in its Lebanon office. When Ms. DeRosa learned that she would have to drive
to Lebanon from her home in Gallatin, Ms. DeRosa said, “I preferred to stay local, and
that’s how I ended up with Dr. Weaver.” She asserted that Ms. Shoop never mentioned
that she had the right to a panel or a choice of physician.
Ms. Shoop offered a different account. She testified that in their first conversation
on August 26, Ms. DeRosa “was in a lot of pain” and requested treatment with Dr. George.
Ms. Shoop said she told her she would provide a list of three physicians, one of whom was
Dr. George, and Ms. DeRosa could choose one. The next day, Ms. Shoop called Ms.
DeRosa to say that she set an appointment with Dr. George. Ms. Shoop testified that,
during the call, Ms. DeRosa said she did not want to drive to Lebanon to see Dr. George.
Rather, according to Ms. Shoop, Ms. DeRosa “wanted to see someone at the Tennessee
Orthopedics practice in Gallatin, and I secured her an appointment with the first available
doctor.” Ms. Shoop emailed the panel to Ms. DeRosa that day, with a message stating “see
attached panel per our discussion yesterday.” She emailed the panel again on September
21 in response to Ms. DeRosa emailing her to state that she had not received the panel.
Ms. Shoop testified that she also sent a hard copy by regular mail, but Ms. DeRosa never
returned the form.
On cross-examination, Ms. DeRosa acknowledged that the carrier had her correct
email address. She said her email works now, but she “had trouble with it in the past.” Ms.
DeRosa added, “When I spoke with her [Ms. Shoop] after the fact, she claimed she had a
different email address, and I had to give it to her at that time.” Ms. DeRosa maintained,
“T never saw the panel,” and stated that she did not receive a copy by mail.
As for Dr. Weaver’s treatment, Ms. DeRosa first saw him on August 28. He noted
he reviewed x-rays, examined her, and noted “clinically there is no right ulnar styloid
fracture[.]” In early September, he characterized the fracture as “questionable... [S]he
has excellent motion and excellent strength[.]”
After this visit, Ms. DeRosa emailed Ms. Shoop on September 19 to tell her that Dr.
Weaver offered no treatment and he “didn’t seem to care.” She continued, “My
understanding is I [sic] even though I’ve been to Dr. Weaver’s office twice, I should of
been given a list of three providers from the beginning to choose from which I never
2
received.” Ms. Shoop responded on September 21, “You never received the email I sent
you on 8/27, with the panel of 3 doctors attached? I am attaching again.” Ms. Shoop then
wrote:
I want to remind you that I get to choose which 3 doctors are put on the panel.
You had insisted on Dr. Martha George, and I went along with your wishes,
and she is one of the three doctors on the attached panel. Also, this was with
whom I set up your initial appointment. Once you learned she was not
located in the office closest to you, we went with the orthopaedic office that
you desired in Gallatin, and got you in with the doctor who had the earliest
availability.
Despite her concerns, Ms. DeRosa returned to Dr. Weaver for two more visits. In
October, Dr. Weaver reviewed an MRI and x-rays and noted “what appears to be more of
a chronic finding to the ulnar styloid not an acute fracture.” At the final visit in November,
he placed her at maximum medical improvement and released her to full-duty work. Dr.
Weaver later completed a final medical report that assigned a zero-percent impairment
rating and stated that no future treatment will be necessary.
Ms. DeRosa argued that, from the very first visit, Dr. Weaver “did not acknowledge
my injuries.” He never gave her a treatment plan and released her “out of anger.” After
her case was closed, she began treating on her own. Ms. DeRosa said she never “saw” the
panel or was told she was entitled to one, and that Dr. Weaver’s treatment “came about
from a referral from a hospital.”
In response, I & MJ Gross argued that it sent the panel several times. While Ms.
DeRosa never returned the panel form, she accepted the treatment I & MJ Gross offered.
Dr. Weaver placed her at maximum medical improvement and saw no need for additional
treatment. I & MJ Gross asserted it provided all the medical benefits to which she is
entitled.
Findings of Fact and Conclusions of Law
Ms. DeRosa must show that she is likely to prevail at a hearing on the merits
regarding whether I & MJ Gross offered a panel as well as whether she is entitled to
additional treatment. See Tenn. Code Ann. § 50-6-239(d)(1) (2019); McCord v. Advantage
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
To prevail, she must show that I & MJ Gross did not satisfy its obligation under the
Workers’ Compensation Law to provide treatment. The medical benefits provision of the
statute reads that an injured employee “shall accept the medical benefits afforded under
this section; provided that . . . the employer shall designate a group of three (3) or more
independent reputable physicians . . . from which the injured employee shall select one (1)
3
to be the treating physician.” Tenn. Code Ann. § 50-6-204(a)(3)(A)(i).
The Court first considers whether I & MJ Gross offered a panel as the statute
requires. The parties offered vastly different accounts, so the Court must make a credibility
determination to decide this factual issue.
Here, Ms. DeRosa repeatedly stated that she never “saw” the panel, nor was it
discussed on August 26 or 27. She acknowledged that Ms. Shoop had the correct email
address, but she said she “had trouble with it in the past.” She then testified that “after the
fact,” Ms. Shoop told her she had the incorrect email address, and Ms. DeRosa gave her
the correct one.
This does not square with Ms. Shoop’s testimony, or with the emails the parties
exchanged. The August 27 and September 21 emails from Ms. Shoop to Ms. DeRosa bear
the same email address as the one Ms. DeRosa wrote on her petition for benefit
determination. The August 27 email plainly states that they discussed the panel the
previous day, in accordance with Ms. Shoop’s testimony. Moreover, the Court simply does
not believe that Ms. DeRosa never received the panel, when Ms. Shoop credibly testified
that she used two different means of transmission, email and regular mail, to send it.
Therefore, the Court finds that I & MJ Gross discussed its obligation to offer a panel of
physicians with Ms. DeRosa and sent the form; thus, it satisfied the statutory requirement.
Next, the Court considers whether Ms. DeRosa accepted the employer’s treatment,
as the statute requires. Ms. Shoop attempted to accommodate Ms. DeRosa’s wishes, twice,
when she put Dr. George on the panel and then, at Ms. DeRosa’s request, set an
appointment with Tennessee Orthopedics with the first available orthopedist, Dr. Weaver,
at the Gallatin Branch.
In Ms. DeRosa’s testimony, she candidly admitted that she did not want to drive to
Lebanon. Rather, she twice attended appointments with Dr. Weaver before expressing
dissatisfaction. Then she continued seeing him until he placed her at maximum medical
improvement, released her from treatment, and anticipated no need for future treatment for
the work injury. Contrary to her assertions, Dr. Weaver’s notes document that he based
his opinions after examining her and ordering x-rays and an MRI. The Court finds that
Ms. DeRosa accepted Dr. Weaver’s treatment, and in his expert opinion she does not need
additional treatment for the work injury.
Therefore, Ms. DeRosa has not presented sufficient evidence from which this Court
can conclude she is likely to prevail at a hearing on the merits that I & MJ Gross failed to
offer her a panel and is entitled to additional treatment.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. DeRosa’s request for additional treatment is denied at this time.
2. This case is set for a scheduling hearing on October 26, 2020, at 9:15 a.m. Central.
You must call 615-532-9552 or toll-free at 866-943-0025 to participate. Failure to
call might result in a determination of the issues without your participation.
ENTERED September 21, 2020.
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Ms. DeRosa’s Affidavit
2. Employee’s Choice of Physician form and email verifying Carrier sent it
3. Employer’s submission of medical records
4. Employee’s submission of medical records
5. Emails between Ms. DeRosa and Ms. Shoop
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Show-Cause Order, June 1, 2020
4. Show-Cause Order, June 30, 2020
5. Request for Expedited Hearing
6. Order Setting Expedited Hearing
7. Employer’s Response to Employee’s Request for Expedited Hearing
8. Employer’s Motion for a Continuance and/or in the Alternative, Request for
Reasonable Extension
9. Employee’s Opposition to Motion
10. Order Continuing Expedited Hearing
11. Order Setting Expedited Hearing
12. Employer’s Pre-Hearing Brief
13. Employee’s Brief
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
September 21, 2020.
Name Certified | Regular | Email | Sent to
Mail mail
Debra De Rosa, self- X X 300 Kirk Lane
represented Gallatin, TN 37066
employee Debra6254@gmail.com
Lynn Lawyer, Xx Lawyel2(@nationwide.com
employer/carrier’s Burruc1@nationwide.com
attorney
/ j
j j
4 MH Awa
bvunu J
Penny Shruni, Clerk of Court
Court of Workers’ Compensation Claims
WC.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:
1. Complete the enclosed form entitled: “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
conceming 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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
we.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
Employer
Notice is given that
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
D Expedited Hearing Order filed on UO) Motion Order filed on
O Compensation Order filed on 0 Other Order filed on
issued by Judge
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Parties
Appellant(s) (Requesting Party): ['Employer!” Employee
Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: Docket No.: Date of !nj.:
Appellee(s) (Opposing Party): [| Employer |~ Employee
Appellee’s Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the day of , 20
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082