HULL EAGER, STEPHANIE v. LOWE’S HOME CENTERS, INC.

FILED
Aug 16, 2021
04:18 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
)
STEPHANIE HULL EAGER, ) Docket No. 2020-08-0880
Employee, ) 2020-08-0881
)
v. ) State File No. 50917-2016
LOWE’S HOME CENTERS, INC, ) 27300-2018
Self-Insured Employer. )
) Judge Allen Phillips
EXPEDITED ORDER FOR MEDICAL BENEFITS
This case came before the Court on July 27, 2021 for an Expedited Hearing. Ms.
Hull Eager requested medical benefits for two separate injuries.1 Specifically, she wanted
Lowe’s to provide a panel of physiatrists for a shoulder injury and she wanted Lowe’s to
pay for an ankle surgery. For the following reasons, the Court orders Lowe’s to provide
the requested medical benefits and refers the case to the Compliance Program for
consideration of a penalty for failure to timely provide the benefits.
History of Claim
Shoulder injury
Ms. Hull Eager reported a shoulder injury on May 23, 2016, and Lowe’s authorized
medical treatment from orthopedic surgeon Dr. Ashley Park. From October 2016 through
November 14, 2017, Dr. Park consistently diagnosed neck and right shoulder blade pain.
He recommended physical therapy, medication, nerve blocks, and a nerve ablation
procedure. None of those treatments provided complete relief. Nevertheless, Dr. Park felt
Ms. Hull Eager was “medically stable” as of November 14, so he placed her at maximum
medical improvement with no impairment.
1
The Court consolidated the two requests for judicial economy. See Tenn. R. Civ. P. 42.01 (2020).
1
In January 2018, Ms. Hull Eager returned with the same complaints. Dr. Park
provided additional conservative treatment for the next two years to no avail. Then, on
January 27, 2020, he stated, “I would like to get a 2nd opinion from Dr. Michael Sorensen
of PM&R.”2
Ms. Hull Eager never saw Dr. Sorensen. Rather, as she explained at the hearing, the
parties learned that Dr. Sorensen no longer practiced in the area. She then asked for a panel
of physiatrists to replace him, but Lowe’s declined to provide one. To date, she has not
seen a physiatrist.
Dr. Park saw Ms. Hull Eager once more after making the referral. On July 28, 2020,
he summarized his treatment and noted that the physiatry evaluation “never took place.”
He placed Ms. Hull Eager at maximum medical improvement a second time, assessing a
permanent impairment rating, and placing significant restrictions on her physical activity.
Ankle injury
Ms. Hull Eager injured her left ankle on March 29, 2018, and Lowe’s authorized
treatment with Dr. Benjamin Grear, an orthopedic foot and ankle specialist. Dr. Grear
diagnosed a tendon strain that he primarily related to her work injury. He treated the
condition conservatively including prescribing a walking boot and later placing a brace.
By September 28, Dr. Grear discussed surgery, telling Ms. Hull Eager that, “if you
feel that it is bad enough, the next step is we’re talking about surgery.” He described that
surgery in his deposition as a “fairly involved” procedure where he would remove the
damaged tendon, replace it with one from her toe, and “break” the heel to create a new arch
in her foot.
Dr. Grear said Ms. Hull Eager wanted to avoid the surgery “because it was so
involved and it’s a big surgery.” Instead, she decided to continue wearing the brace.
Because Dr. Grear had nothing else to offer but surgery, he placed her at maximum medical
improvement as of January 22, 2019. Ms. Hull Eager felt she could tolerate standing “half
the day,” so Dr. Grear placed a restriction of no more than four hours of standing and use
of the brace “indefinitely.” Ms. Hull Eager tried to continue working at Lowe’s but left in
February 2019 when it could no longer accommodate her.
Ms. Hull Eager returned to Dr. Grear in December 2019 reporting the same
problems but saying that they had worsened over the past “couple months.” Dr. Grear
advised that she could continue wearing a walking boot or her brace. She saw him again in
February 2020.
2
In medical terminology, “PM&R” means “physical medicine and rehabilitation,” also known as physiatry.
www.hopkinsmedicine.org (last visited August 9, 2021).
2
Then, on April 14, 2020, Ms. Hull Eager returned to Dr. Grear and reported that, “2
or 3 days ago she was trying to get more active and she felt a pop” in her foot. In his
deposition, Dr. Grear testified that he did not believe the pop “changed anything,” stating
that both the need and recommendation for surgery were present before the “pop.” After
the April 14 visit, Ms. Hull Eager decided to proceed with surgery.
Lowe’s, through its third-party administrator, submitted the surgery
recommendation to its own Utilization Review provider in May 2020. The records included
the April 2020 visit to Dr. Grear. The Utilization Review physician certified the procedure
as “medically necessary” and noted, “there is no further non-operative treatment which
would be reasonable.” The provider detailed the basis for his decision by extensively
referencing the ODG Guidelines.3
At the hearing, Ms. Hull Eager testified she has continued pain in her right shoulder,
neck, and upper back. She sees her personal physician for those problems but still desires
to see a physiatrist, as Dr. Park recommended. She said that, upon learning Dr. Sorensen
was unavailable, she not only asked Lowe’s for another physician, but she also tried to
return to Dr. Park. However, Dr. Park said he had “nothing more” to offer.
As to her ankle, she is ready to undergo the surgery. She described how the ankle
injury ultimately led to her ceasing work in February 2019 and that her ankle condition still
prevents her from working. Ms. Hull Eager argued that both Drs. Park and Grear’s
treatment recommendations are presumed correct under Tennessee Code Annotated
section 50-6-204(a)(3)(H) (2020).
Ms. Hull Eager said she felt the pop in her foot when merely moving about her home
and noted that Dr. Grear confirmed the pop did not change his opinion that the surgery was
required because of the work injury. She asserted that he had recommended the surgery
long before April 2020.
Lowe’s argued that Ms. Hull Eager stated in her Petition for Benefit Determination
that she was referred to “pain management,” which had not been approved. However,
Lowe’s pointed out that Dr. Park did not refer Ms. Hull Eager to pain management but
stated “he wanted [her] to receive a second opinion from a PM&R physician.” Thus,
Lowe’s declined to provide a panel of pain management physicians. Lowe’s also argued it
had no obligation to authorize a second opinion because Dr. Park placed Ms. Hull Eager at
maximum medical improvement, even though she had not received the second opinion.
As to the ankle surgery, Lowe’s admitted that the injury was compensable and that
Dr. Grear was the authorized physician. However, it said that from January 2019 through
3
The medical records submitted at the hearing included those from two independent evaluations, one on
behalf of each party. Because the Court did not rely on those opinions here, it will not summarize them.
3
February 2020, Ms. Hull Eager “handled her condition fairly well with the use of a brace
and other conservative treatment.” Then the pop in April 2020 prompted her to agree to
surgery.
In support, Lowe’s cited Anderson v Westfield Grp., 259 S.W.3d 690 (Tenn. 2008)
for the proposition that an independent intervening event breaks the chain of causation
between an injury and the need for medical treatment. Lowe’s argued that the “crucial fact
in the Anderson matter was the fact that there was evidence in the record that supported a
conclusion that the employee’s own negligence caused his new injury.” Lowe’s argued that
Ms. Hull Eager “never specifically stated what she was doing when she felt the pop,” but
it was only after it that she wanted surgery. Because the pop was an intervening cause,
Lowe’s contended it “in good faith” denied the surgery, even though Dr. Grear and
Utilization Review said it was medically necessary.
Findings of Fact and Conclusions of Law
At this Expedited Hearing, Ms. Hull Eager must show she would likely prevail at a
hearing on the merits regarding all of her claims. Tenn. Code Ann. § 50-6-239(d)(1).
Panel of physiatrists
Under Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii), a treating
physician may refer the employee to a specialist. If a referral is made, an employer is
deemed to have accepted it unless, within three business days, the employer provides a
panel of physicians.
Here, Dr. Park made a referral to Dr. Sorensen, and Lowe’s did not offer a panel
within three days. Instead, Ms. Hull Eager testified without contravention that Dr. Sorensen
was unavailable, she asked for a panel of physicians to replace him, and Lowe’s refused to
provide one. Lowe’s offered no reasonable justification as to why it did not offer a panel
or approve another physician.
Specifically, the Court finds no merit in Lowe’s argument that Dr. Park did not
mention the second opinion again or that he placed Ms. Hull Eager at maximum medical
improvement before obtaining the opinion. What Dr. Park said six months after his referral
is not controlling; what he said when he made the referral is. In short, the relevant issue is
whether Ms. Hull Eager presented sufficient evidence that a treating physician made a
referral to a specialist. See Beech v. G4S Secure Solutions (USA), Inc., 2020 TN Wrk.
Comp. App. Bd. LEXIS 71, at *9 (Dec. 16, 2020). The Court finds she did and orders
Lowe’s to provide a panel of physiatrists.4
4
The Court notes Lowe’s argued Dr. Park did not make a referral to pain management. However, the
Dispute Certification Notice specifically listed “medical benefits” as an issue, and Ms. Hull Eager
4
Ankle surgery
Under Tennessee Code Annotated section 50-6-204(a)(3)(H), treatment
recommended by an authorized physician is presumed medically necessary. As the Appeals
Board explained in Morgan v Macy’s, 2016 TN Wrk. Comp. App. Bd. LEXIS 39, at *17-
18 (Aug. 31, 2016), that presumption may be rebutted under two potential standards. First,
if the authorized physician recommended treatment but did not explicitly follow the ODG
Guidelines, then the employer need only rebut the presumption by a preponderance of the
evidence. But, if the authorized physician explicitly follows the Guidelines, then the
employer must rebut the presumption by clear and convincing evidence.
Here, Dr. Grear did not explicitly reference the ODG Guidelines when he
recommended surgery. Thus, Lowe’s need only rebut the presumption of necessity by a
preponderance of the evidence. The Court finds Lowe’s did not.
Rather, Lowe’s own Utilization Review actually confirmed the medical necessity
of the surgery. The reviewing physician certified the surgery as medically necessary, and
he did so by explicitly following the ODG Guidelines. That determination was made after
a review of records that included the office note of April 14, 2020, documenting the pop.
Lowe’s relied upon the pop as the cornerstone of its defense, but the Court finds the
argument without merit. First, Dr. Grear testified that he believed the pop had not “changed
anything,” and the need for surgery existed before the pop. In short, Ms. Hull Eager’s
“diagnosis for surgery [was] still the same” after the pop.
Second, Lowe’s cited authority that an employee’s negligent act might break the
chain of causation, but at the same time it conceded Ms. Hull Eager “never specifically
stated what she was doing when she felt the pop.” Though Tennessee law holds an
employee’s negligence might constitute an intervening cause, some act exhibiting a lack
of reasonable care must exist for a finding of negligence. See Anderson, 259 S.W.3d at
698. Lowe’s failed to prove a lack of reasonable care on Ms. Hull Eager’s part. Thus, the
Court finds the April 14, 2020 pop was not an intervening event and did not break the chain
of causation.
It follows then that Ms. Hull Eager established she would likely prevail at a hearing
on the merits regarding her request for ankle surgery, and the Court orders Lowe’s to pay
for it.
specifically asked for a panel of physicians and treatment ordered by the physician in her Petition for Benefit
Determination. In Phillips v. Carolina Construction Solutions, 2016 TN Wrk. Comp. App. Bd. LEXIS 10,
at *19 (Feb. 26, 2016), the Court is to determine what issues have been certified in the Dispute Certification
Notice by considering the document as a whole. Here, the mediator checked medical benefits as an issue.
Further, the parties briefed and argued the merits of the referral to Dr. Sorensen at the Expedited Hearing.
5
Penalty referral
Tennessee Code Annotated section 50-6-118(a)(11) provides that an employer
might be penalized for failing to timely provide medical treatment recommended by the
authorized treating physician. Here, the Court finds Lowe’s did not timely provide a
physiatrist evaluation recommended by Dr. Park and did not timely provide the surgery
recommended by Dr. Grear. Lowe’s authorized both physicians to treat Ms. Hull Eager.
Thus, the Court refers Lowe’s to the Compliance Program for consideration of a penalty.
Finally, Ms. Hull Eager argued for attorney’s fees for wrongful denial under
Tennessee Code Annotated section 50-6-226(d)(1)(B) in her brief. The Court will consider
that request upon proper motion supported by counsel’s affidavit for fees and with proper
notice to Lowe’s.
IT IS, THEREFORE, ORDERED as follows:
1. Lowe’s shall provide Ms. Hull Eager a panel of physiatrists as recommended by Dr.
Parks and authorize and pay for the surgery recommended by Dr. Grear.
2. The Court refers Lowe’s to the Compliance Program for consideration of a penalty
under Tennessee Code Annotated section 50-6-118(a)(11) for failure to timely
provide medical treatment recommended by the authorized treating physicians.
3. The Court sets a Status Hearing for Monday, October 25, 2021, at 10:00 a.m.
Central Time. The parties must call 731-422-5263 or toll-free 855-543-5038 to
participate in the Hearing.
4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The
Insurer or Self-Insured Employer must submit confirmation of compliance with this
Order to the Bureau by email to WCCompliance.Program@tn.gov no later than the
seventh business day after entry of this Order. Failure to submit the necessary
confirmation within the period of compliance may result in a penalty assessment for
non-compliance. For questions regarding compliance, please contact the Workers’
Compensation Compliance Unit by email at WCCompliance.Program@tn.gov.
ENTERED August 16, 2021.
_____________________________________
JUDGE ALLEN PHILLIPS
Court of Workers’ Compensation Claims
6
APPENDIX
Exhibits:
1. Deposition of Dr. Benjamin Grear
2. Collective Medical Records
Technical record:
1. Petition for Benefit Determination—DOI: 5/23/16
2. Dispute Certification Notice—DOI: 5/23/16
3. Request for Expedited Hearing—DOI: 5/23/16
4. Petition for Benefit Determination—DOI: 3/29/18
5. Dispute Certification Notice—DOI: 3/29/18
6. Request for Expedited Hearing—DOI: 3/29/18
7. Motion for Consolidation
8. Order of Consolidation
9. Motion to Continue Expedited Hearing
10. Order Granting Motion to Continue
11. Employee’s Expedited Hearing Brief
12. Employer’s Expedited Hearing Brief
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on August 16, 2021.
Name Email Service sent to:
Monica R. Rejaei, X mrejaei@nstlaw.com
Employee’s Attorney
Dennis Sadler and Kimberly Perry, X Dennis.sadler@leitnerfirm.com
Employer’s Attorneys kimberly.perry@leitnerfirm.com
Compliance Program X WCCompliance.Program@tn.gov
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
7
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
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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
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):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ 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 *
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Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
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 I 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