Yow, James v. Lowe’s Investment Corporation

FILED
Jun 01, 2023
03:01 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
James Yow, ) Docket No.: 2022-08-1050
Employee, )
v. )
) State File No.: 33104-2020
Lowe’s Investment Corporation, )
Self-Insured Employer. )
) Judge Thomas Wyatt
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
James Yow requested an expedited hearing based on a review of the record, and
Lowe’s Investment Corporation did not object. The Court holds it has sufficient
information to proceed without an evidentiary hearing.
The primary issue is whether Lowe’s must provide a new panel of physicians
because Mr. Yow moved from Memphis to Pensacola, Florida. Lowe’s argued that it does
not because Mr. Yow’s current authorized physicians do not anticipate future treatment for
his work injuries. It further argued that Mr. Yow’s request for panels is not ripe for
decision.
For the reasons below, the Court orders Lowe’s to give Mr. Yow a new panel of
neurologists or honor the neurologist referral made by the physician in Pensacola. The
Court also awards Mr. Yow attorney’s fees for wrongful denial of his request for new
panels and refers Lowe’s to the Bureau’s Compliance Program for consideration of a
penalty for failure to provide the requested panel.
History of Claim
Mr. Yow suffered head and nasal injuries at work on May 27, 2020, and Lowe’s
authorized treatment with neurologist Dr. Wilbourne and nasal surgeon Dr. Staffel. Both
physicians completed Final Medical Reports stating that they did not anticipate Mr. Yow
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would need future treatment. Mr. Yow later moved from Memphis to Pensacola, and his
lawyer asked for new panels by email on August 5, 2022. The adjuster denied the request
based on the authorized physicians’ final reports.
Mr. Yow argued that the law entitles him to future medical benefits despite the
physicians’ statements. Lowe’s attorney responded that while the physicians’ opinions did
not conclusively resolve the future medical benefits issue, Lowe’s has a right to review
these requests on a case-by-case basis.
Lowe’s asked Mr. Yow if he needed treatment. On August 22, Mr. Yow confirmed
that he did. Four days earlier, Mr. Yow had sought care for his work injuries through an
emergency room in Pensacola.
The emergency room records said Mr. Yow had a seven-day history of vision
changes, including blurred vision and seeing bright colors after looking away from bright
objects. They also noted his complaints of intermittent dizziness, “feeling foggy,” and
sound sensitivity. The emergency providers recorded his history of having “suffered a
closed head injury 2 years ago while living outside of Memphis that resulted in a
concussion and nasal reconstruction.” They diagnosed atypical migraine headaches with
a history of a closed head injury and treated him with medication. They discharged him
with instructions to “follow-up with Dr. Lawrence King, neurologist . . . for patient follow-
up/further evaluation and management.” 1
Mr. Yow filed this case seeking the requested panels, payment for his treatment in
Pensacola, attorney’s fees for wrongful denial of benefits, and referral of Lowe’s for
consideration of penalties for its failure to provide him panels of physicians in Pensacola.
Lowe’s raised two defenses: (1) it is exempt from providing the requested panels
because the treating physicians in Memphis anticipated no future treatment; and (2) Mr.
Yow failed to prove he needs specific treatment for his work injuries; thus, his request for
panels is not ripe for decision.
Lowe’s sent questionnaires to Drs. Wilbourne and Staffel regarding Mr. Yow’s need
for treatment of his work injuries. The questionnaire to Dr. Wilbourne asked the following:
 Having evaluated and treated Mr. Yow, do you opine, to a reasonable degree
of medical certainty, that Mr. Yow’s headaches, neuralgia, and causalgia are
more likely than not, (i.e., greater than 50.1%), related to the work incident
on May 27, 2020?
 Considering that there has been no anatomical change in Mr. Yow’s
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Mr. Yow introduced some bills, but the record is unclear about the financial arrangements for the
emergency visit. Part of the treatment may have been paid by health insurance and part may remain unpaid.
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headaches, neuralgia, and causalgia conditions, do you anticipate that if Mr.
Yow will need future medical treatment, it will be for a personal reason and
in no manner related to his work-related injury? and
 Considering that there has been no anatomical change in Mr. Yow’s
headaches, neuralgia, and causalgia conditions, do you opine, to a reasonable
degree of medical certainty, that if Mr. Yow continues to need treatment in
his new residential community, it will be for a personal reason and in no
manner related to his work-related injury?
The questionnaire to Dr. Staffel asked the latter two questions above, except that his
questionnaire removed reference to the diagnoses described in the questions to Dr.
Wilbourne. Both physicians checked “Yes” to each question without explanation.
Mr. Yow objected to the admission of the physician questionnaires because Lowe’s
did not divulge the correspondence and other information it sent the physicians to solicit
their responses. The Court overruled the objections because they went to the weight given
the responses instead of their admissibility into evidence.
Findings of Fact and Conclusions of Law
In a workers’ compensation case, the employee bears the burden of proving all
elements of the claim, including that he requires treatment for his work injury. Scott v.
Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18,
2015). At an expedited hearing, the employee must show that he will likely prevail at a
hearing on the merits in proving his entitlement to the requested benefits, including medical
benefits. Tenn. Code Ann. § 50-6-239(d)(1) (2022).
Here, Mr. Yow seeks new panels for ongoing treatment of his work injuries in
Pensacola after moving there from Memphis. Lowe’s denied his request because his
current authorized physicians do not anticipate further work-related treatment of his
injuries. The Court holds Lowe’s must give Mr. Yow a new panel of neurologists or, it
does not, authorize treatment by the referral neurologist or any other neurologist that he
selects. The Court awards Mr. Yow his attorney’s fees and refers Lowe’s to the Bureau’s
Compliance Program for assessment of a civil penalty for failure to provide the requested
panel.
Historically, workers’ compensation laws are described as “grand bargains.” This
bargain is exemplified by the employer’s obligation to pay for treatment made reasonably
necessary by the work injury. Tenn. Code Ann. § 50-6-204(a)(1)(A). In return, the
employee must receive treatment from a physician selected from a panel compiled by the
employer. The employer’s panel must include physicians “in the injured employee’s
community” if possible. Id. at § 50-6-204(a)(3)(A)(i).
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Tennessee law addresses what happens when an injured employee moves to a new
residential community during treatment. Section 50-6-204(a)(3)(F) states, “In all cases
when an employee changes the employee’s community of residence after selection of a
physician [from a panel], the employer shall provide the employee, upon written request,
a new panel of reputable physicians . . . from which the injured employee shall select [a
treating physician.]” (Emphasis added).
Here, Mr. Yow proved that he will likely prevail at trial in showing his entitlement
to receive panels of physicians in Pensacola. He complied with the statute by requesting
the new panels in writing three times between August 5 and 22, 2022. Further, he will
likely prevail at trial in showing that he needs treatment for his work injury, as the providers
in Pensacola diagnosed atypical migraines after a history of a closed head injury, treated
him with medication, and referred him for follow-up with a neurologist. 2
Lowe’s argument that it is exempted from providing the requested panel because
the authorized physicians in Memphis did not anticipate future treatment is without merit.
The statutory obligation of an employer to provide a new panel when a relocated employee
makes a written request for this relief is mandatory and without exception. The statute
states that the employer shall provide the requested panel in all cases when an employee
changes the employee’s community of residence. The general assembly’s use of the term
“all cases” means that every employee who moves to a new community and makes a
written request for a new panel of treating physicians must receive the requested panel. 3
Lowe’s also argued that its denial of Mr. Yow’s request for a new panel is justified
under Smith v. Intex Enters., No. 2009-02557-WC-R3-WC, 2011 Tenn. LEXIS 194 (Tenn.
Workers’ Comp. Panel Mar. 7, 2011), where the Supreme Court Panel overturned an award
of medical benefits because the issue was not ripe for decision.
The employee in Smith injured the same body part twice while working for different
employers. She kept medical benefits open in a settlement on the earlier injury but closed
them when she settled the second case. The case on appeal involved the employee’s
attempt to receive treatment under the first settlement.
The trial court awarded medical benefits. The Panel reversed, holding the only
medical report in the record did not identify a specific treatment that the physician
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The only closed head history considered by the providers in Pensacola was the one Mr. Yow received in
Memphis two years previously, which resulted in a concussion and nasal reconstruction. Mr. Yow received
this injury on the job at Lowe’s.
3
Though not relevant under section 50-6-204(a)(3)(F), the Court gives no weight to the questionnaires
signed by the Memphis physicians. The physicians gave these opinions without seeing Mr. Yow. Further,
the questions in the questionnaire were prefaced by stating that Mr. Yow had experienced no anatomical
change since the Memphis physicians last saw him. This record contains no evidence to support the
statement regarding Mr. Yow’s anatomical condition at the time the physicians signed the questionnaires.
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recommended for the injury. The Panel explained, “A claim is not ripe for adjudication if
it rests upon contingent future events that may or may not occur as anticipated, or indeed
may not occur at all.” Id. at *9.
Smith does not justify Lowe’s inaction here. While the Memphis physicians may
not have anticipated future treatment, the providers in Pensacola, who have most recently
seen Mr. Yow, did. They treated Mr. Yow with medication and referred him to a
neurologist for follow-up care. For that reason, the facts here are distinct from those in
Smith, and Lowe’s reliance on that decision to deny Mr. Yow’s written request for a new
panel was wrongful.
Thus, Lowe’s must give Mr. Yow a new panel of neurologists in Pensacola or, if it
does not, pay for treatment with Dr. King, the neurologist recommended by the emergency
physician, or any neurologist that Mr. Yow selects. “An employer who does not timely
provide a panel of physicians risks being required to pay for treatment an injured worker
receives on his own.” Ducros v. Metro Roofing and Metal Supply Co., 2017 TN Wrk.
Comp. App. Bd. LEXIS 62, at *10 (Oct. 17, 2017). Lowe’s shall promptly comply with
the decision within the time for compliance below. 4
Mr. Yow also seeks attorney’s fees under Tennessee Code Annotated section 50-6-
226(d)(1)(B), which allows a court to award fees and costs when the employer
“[w]rongfully denies a claim or wrongfully fails to timely initiate any of the benefits to
which the employee . . . is entitled under this chapter[.]” The statute states that
“‘wrongfully’ means erroneous, incorrect, or otherwise inconsistent with the law and
facts.”
Here, Lowe’s wrongfully denied Mr. Yow his mandatory right to receive a panel
for future treatment of his work injuries in his new residential community. The statute
clearly states that the employee is entitled to the new panel “in all cases” when he makes a
“written request” for the panel. Id. at § 50-6-204(a)(3)(F).
Lowe’s received Mr. Yow’s written request for a new panel three times. Instead of
complying with the statute, it wrongfully and incorrectly threw up barriers to Mr. Yow
receiving his lawful panel. Lowe’s wrongful decision to deny Mr. Yow his requested
panel necessitated his emergency treatment and frustrated his receipt of follow-up
neurological care recommended by the physician in Pensacola. This forced Mr. Yow to
hire an attorney to prosecute this expedited hearing so that he could receive what the law
clearly entitles him.
In considering Mr. Yow’s claim for attorney’s fees, the Court is mindful that the
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Mr. Yow also seeks an order requiring Lowe’s to pay for the treatment he received in Pensacola. At this
time, the Court denies this relief for insufficiency of evidence.
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Appeals Board has held that these claims generally are better addressed at a compensation
hearing, where the parties have had the opportunity to fully develop proof. Thompson v.
Comcast Corp., 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *28 (Jan. 30, 2018). However,
the Board in Thompson upheld an award of attorney’s fees after an expedited hearing
because the issue there—the employer’s failure to authorize the treating physician’s pain
management referral—was sufficiently clear to allow the parties to fully prepare their
positions at the expedited hearing. Id. at *29-31.
The Court holds this case involves an issue of sufficient clarity to allow full
preparation by the parties at the expedited hearing. In fact, the issue here concerns nothing
more than the failure of Lowe’s to comply with a clear statutory obligation. For that reason,
the Court awards Mr. Yow attorney’s fees under section 50-6-226(d)(1)(B). Attorney
Patrick shall promptly file a petition for fees including itemization of the time he spent in
pursuing Mr. Yow’s request for a new panel, the hourly rate he seeks, and other
documentation related to the attorney fee request.
Finally, Mr. Yow requested a penalty referral. Tennessee Code Annotated section
50-6-118 empowers the Bureau of Workers’ Compensation to assess and collect penalties
for several reasons, including the “[f]ailure of an employer to timely provide a panel of
physicians that meets the statutory requirements of this chapter.”
As described above, Lowe’s denied three written requests for a panel of physicians
located in Mr. Yow’s new residential community. In doing so, it violated Tennessee Code
Annotated section 50-6-204(a)(3)(F). Thus, the Court refers Lowe’s to the Bureau’s
Compliance Program for consideration of the assessment of a penalty under section 50-6-
118.
IT IS, THEREFORE, ORDERED as follows:
1. Lowe’s shall give Mr. Yow a panel of neurologists practicing in the Pensacola area.
If it fails to do so, Mr. Yow may begin treating with Dr. King or any other
neurologist he selects, and Lowe’s shall pay the costs of treatment.
2. Lowe’s shall pay attorney’s fees for Attorney Patrick’s time and costs expended in
pursuing the panels requested by Mr. Yow. Attorney Patrick shall promptly petition
the Court for the fees and expenses he requests.
3. 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 the
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 WCComplianceProgram@tn.gov no later than
the seventh business day after entry of this order. Failure to submit the necessary
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confirmation within the period of compliance might result in a penalty assessment
for non-compliance.
4. This case is referred to the Bureau’s Compliance Program for consideration of the
assessment of a penalty against Lowe’s under Tennessee Code Annotated section
50-6-118.
5. This case is set for a Status Hearing on October 6, 2023, at 1:00 a.m. Central
Time/2:00 a.m. Eastern Time. The parties must call (615) 741-3061 or toll-free
at (855) 747-1721 to participate. Failure to call might result in a determination of
the issues without the party’s participation.
ENTERED June 1, 2023.
______________________________________
JUDGE THOMAS WYATT
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits:
1. Emails between counsel
2. Records of Ascension Sacred Heart—Pensacola Hospital
3. Billing information
4. Affidavit of James Yow
5. Medical Questionnaire of Dr. Staffel
6. Medical Questionnaire of Dr. Wilbourne
7. Final Medical Report of Dr. Staffel
8. Final Medical Report of Dr. Wilbourne
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice, including documents stating the additional issues
of the parties
3. Request for Expedited Hearing with a decision on the record
4. Notice of filing of request for a decision on the record
5. Employee’s position statement
6. Employer’s Notice of Filing of Medical Questionnaires
7. Employer’s Brief
8. Docketing Notice of April 21, 2023 hearing
9. Employee’s Objection to Employer’s Filed Medical Questionnaires
10. Employer’s Pre-Hearing Brief
11. Employee’s Brief for Decision on the Record
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CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on June 1, 2023.
Name Certified First Via Service sent to:
Mail Class Email
Mail
Charles Patrick, X cpatrick@forthepeople.com
Employee’s Attorney cc: ccritter@forthepeople.com
Allison Tomey, X aptomey@mijs.com
Employer’s Attorney cc: abhaley@mijs.com
Compliance Program X WCCompliance.Program@tn.gov
______________________________________
Penny Shrum, Court Clerk
WC.CourtClerk@tn.gov
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