Taylor, Debbie v, The Kroger Co. , 2023 TN WC 1 ( 2023 )

FILED
Jan 18, 2023
01:30 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
DEBBIE TAYLOR, ) Docket No. 2022-08-0265
Employee, )
v. )
THE KROGER CO., ) State File No. 85617-2015
Employer, )
And )
BRIDGEFIELD EMPLOYERS INS. CO., ) Judge Allen Phillips
Carrier. )
EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS
Decision on the record
Ms. Taylor requested that the Court order Kroger to pay for treatment by a headache
specialist and for penalties due to Kroger’s refusal to provide one. Kroger contended it had
furnished Ms. Taylor all medical treatment it owed her under law. For the following
reasons, the Court denies Ms. Taylor’s request at this time.
History of Claim
Ms. Taylor fell and struck her head on October 22, 2015.1 She went to an emergency
room that day, where she reported pain in her head but no loss of consciousness. A CT scan
of her head was normal, and she returned to work the next day.
A few weeks later, Kroger offered Ms. Taylor a panel of neurologists, from which
she chose Dr. Alan Nadel. Ms. Taylor saw Dr. Nadel in January and told him that her
headaches were unchanged since her fall. Dr. Nadel diagnosed “mild” post-traumatic
headaches, prescribed medication, and continued Ms. Taylor at full duty. He said he did
not “plan any other intervention.” However, Ms. Taylor returned in February still
experiencing headaches, and Dr. Nadel continued her medications. No other records from
Dr. Nadel appear in evidence.
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Ms. Taylor also injured her left elbow, but that injury is not at issue here.
1
Kroger provided Ms. Taylor with treatment from a second neurologist, Dr.
Mohammed Assaf, who first saw her in May 2016. Dr. Assaf noted Ms. Taylor suffered no
loss of consciousness from her fall, but her headaches persisted. He diagnosed post-
concussion syndrome and continued the medication prescribed by Dr. Nadel. Over the next
two-plus years, he maintained the same diagnosis and continued the medications. In all, he
saw Ms. Taylor twelve more times before placing her at maximum medical improvement
in November 2020 without permanent impairment or permanent restrictions.
Dr. Assaf recommended an evaluation by a neuropsychologist, and Kroger
authorized one from Dr. Christopher Bassin. In February 2020, Dr. Bassin recorded Ms.
Taylor’s continuing headaches and noted her additional complaints of forgetfulness,
confusion, and “problems with complex tasks.” Collectively, he called those complaints
“subjective cognitive difficulties,” but he noted Ms. Taylor gave varying dates of their
onset and duration. Those inconsistencies led Dr. Bassin to conclude that the other
complaints were “very unlikely” associated with the injury.
However, Dr. Bassin said his testing revealed “significant underlying stress or
anxiety” that “may well be associated” with Ms. Taylor’s injury. Ms. Taylor reported
“significant” sleep difficulties, and Dr. Bassin said those difficulties could be related to
anxiety; in turn, the anxiety could exacerbate the sleep problems. Thus, Dr. Bassin thought
the anxiety and sleep deprivation “could” be exacerbating Ms. Taylor’s headaches, and
“management of” those problems would possibly improve her level of function.
In May 2022, Ms. Taylor saw psychiatrist Dr. Melvin Golden. He reviewed
“extensive records,” reiterated Ms. Taylor’s traumatic headache complaints, and noted Dr.
Bassin’s discussion of an anxiety disorder. He found no psychiatric disorders but instead
diagnosed migraine headaches from a “traumatic brain injury” and said consideration
might be given to “consultation with a headache specialist.” But he added that he found it
“particularly noteworthy” that Ms. Taylor returned to work two days after the injury.
In August 2022, Kroger wrote Dr. Golden. Specifically, it pointed to Ms. Taylor’s
not having lost consciousness, her normal CT scan, and that both Drs. Nadel and Assaf
found no “neuropsychiatric or neurocognitive deficits.” Kroger also reminded that both
neurologists returned Ms. Taylor to full duty, and Dr. Assaf assessed no impairment.
Based on those facts, Kroger said it was concerned that the “current headache
complaints may not be primarily related” to the injury. Further, because Dr. Assaf is
“actively treating” Ms. Taylor, Kroger thought Dr. Goldin’s recommendation for a
headache specialist “may be redundant.”
Against that backdrop, Kroger then asked Dr. Goldin two questions. First, Kroger
asked Dr. Goldin if he believed Ms. Taylor’s “current headache complaints” primarily
related to her injury. Dr. Golden checked “No” and explained by noting: “1) no loss of
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consciousness or altered state of consciousness; 2) the opinions of respected, board-
certified neurologists.”
Second, Kroger asked Dr. Goldin if he still believed Ms. Taylor should see a
headache specialist “despite the fact that she is already treating with Dr. Assaf, a board-
certified neurologist for her headaches.” The “yes/no” blanks are distorted on Kroger’s
filing, but Dr. Goldin wrote the following: “If patient and the two neurologists are
comfortable with their opinions, I do not see the need for another neurologist’s evaluation,
particularly as she has resumed work.”
The summarized evidence is the record on which the Court must decide Ms.
Taylor’s request for a headache specialist ̶ a request she described as one for both additional
treatment and an impairment rating. She also requested “penalties and fees.”2
In support of her request, Ms. Taylor relied on Dr. Goldin’s recommendation in his
notes for a specialist consultation. She argued that Drs. Nadel and Assaf saw her for six-
plus years and did nothing but prescribe medications that have not helped. Further, Dr.
Nadel did not offer an opinion regarding impairment, as the law requires a treating
physician to do. See Tenn. Code Ann. § 50-6-204(k)(4) (2022). She also claimed Dr. Assaf
did not clarify whether his rating was based on the AMA Guides, as the law requires. Id.at (k)(2)(A). Finally, Ms. Taylor argued that the Court should order Kroger to provide
another physician because the record does not show that either Dr. Nadel or Dr. Assaf is a
headache specialist.
Kroger countered that Dr. Nadel diagnosed a mild post-traumatic headache and
released Ms. Taylor without restrictions. Further, Dr. Assaf found no objective problems,
and Ms. Taylor only required conservative treatment for four years. Finally, Kroger
asserted it provided the consults from Dr. Bassin and Dr. Goldin.
As to Dr. Goldin, Kroger pointed to his statement that “consideration” might be
given to a headache specialist and that he mentioned a particular clinic. However, Kroger
said that the named clinic had several neurologists, so it arranged a return to Dr. Assaf.
Though he did not change his diagnosis or the medications, Ms. Taylor maintained her
desire to see another physician, and that is when Kroger corresponded with Dr. Goldin. His
responses to Kroger’s questions formed the basis for the denial.
Kroger contended that an employee cannot “demand a new physician simply
because she is unhappy with her current one,” and Dr. Assaf has not refused to treat her.
2
Ms. Taylor requested a decision on the record Expedited Hearing but also provided four “agreed upon”
dates for a hearing. She also said she would testify live. To clarify her request, the Court held a Status
Hearing, and Ms. Taylor said she preferred an on-the-record decision. Kroger did not object. The Court
entered a Docketing Notice listing the record it would consider and gave the parties time to object to or
supplement that record. The Court also allowed the parties until January 10 to file briefs.
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Kroger called this request part of “a pattern of requesting new care when [Ms. Taylor]
becomes displeased with her current provider,” just as she did with Dr. Nadel. Here, Ms.
Taylor wants a third neurosurgeon because Dr. Assaf “declined to assign any impairment
for her subjective headache complaints.”
Findings of Fact and Conclusions of Law
At this Expedited Hearing, Ms. Taylor must show she would likely prevail at a
hearing on the merits regarding her request for a headache specialist. Tenn. Code Ann. §
50-6-239(d)(1). The Court finds she likely would not for several reasons.
First, Kroger has paid for all injury-related treatment from Dr. Nadel, Dr. Assaf, as
well as two other specialist evaluations as required by law. See Tenn. Code Ann. § 50-6-
204(a)(1)(A).
Second, the record contains no evidence that Dr. Assaf refused to provide further
treatment to Ms. Taylor. If a treating physician remains willing and able to treat an
employee, then the employer is not obligated to offer a new panel even if the employee is
dissatisfied with the physician. Baker v. Electrolux, 2017 TN Wrk. Comp. App. Bd. LEXIS
65, at *8-9 (Oct. 20, 2017). Notably, as Kroger pointed out, the record contains no proof
of Ms. Taylor’s dissatisfaction with Dr. Assaf’s treatment, which lasted for over two years,
until he placed her at maximum medical improvement. Moreover, neither Dr. Nadel’s nor
Dr. Assaf’s records state the need for another specialist’s evaluation.
Third, Kroger is not required to offer another physician for a second opinion, or
arguably in this case, a third neurologist opinion regarding the diagnosis. Instead,
Tennessee Code Annotated section 50-6-204(a)(3)(C) only allows for a second opinion
regarding surgery and diagnosis from a physician in the same specialty. See Petty v.
Convention Prod. Rigging, 2016 TN Wrk. Comp. App. Bd. LEXIS 95, at *21 (Dec. 29,
2016) (in the absence of a recommendation for surgery, an employee is not entitled to a
second opinion regarding diagnosis).
Fourth, Dr. Goldin explained his initial recommendation for a headache physician
when he said “[i]f patient and the two neurologists are comfortable with their opinions, I
do not see the need for another neurologist’s evaluation, particularly as she has resumed
work.” Of course, the “patient,” Ms. Taylor, is not comfortable with the opinions of Drs.
Nadel and Assaf, which is why she requested this hearing. However, parties cannot rely
solely on their own medical interpretations of the evidence to successfully support a
position. Lurz v. Int’l Paper Co., 2018 TN Wrk. Comp. App. Bd. LEXIS 8, at *16 (Feb.
14, 2018). Rather, only medical expert opinions are controlling, and the law does not allow
another opinion under these facts.
Because of these findings, the Court need not decide Ms. Taylor’s request for
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penalties.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Taylor’s request for another specialist is denied at this time.
2. The Court sets a Status Hearing on Thursday, March 23, 2023, at 9:30 a.m.
Central Time. The parties must call 731-422-5263 or toll-free 855-543-5038 to
participate in the hearing.
ENTERED January 18, 2023.
_____________________________________
JUDGE ALLEN PHILLIPS
Court of Workers’ Compensation Claims
Exhibits:
1. Wage Statement (April 14, 2021)
2. First Report of Work Injury (April 14, 2021)
3. Declaration of Debbie Taylor (November 14, 2022)
4. St. Francis Hospital (October 22, 2015)
5. Dr. Jeffrey Cole (November 23, 2015)
6. Dr. Matt Nash (December 1, 2015-December 22, 2015)
7. Dr. Jeffrey Cole (December 22, 2015)
8. Dr. Alan Nadel (January 11, 2016-January 16, 2016)
9. Dr. Mohammad Assaf (May 12, 2016)
10. Dr. Mohammad Assaf (August 23, 2016)
11. Dr. Mohammad Assaf (October 25, 2016)
12. Dr. Mohammad Assaf (February 28, 2017)
13. Dr. Mohammad Assaf (April 25, 2017)
14. Dr. Mohammad Assaf (May 23, 2017)
15. Dr. Mohammad Assaf (July 24, 2017)
16. Dr. Mohammad Assaf (November 27, 2017)
17. Dr. Mohammad Assaf (August 30, 2018)
18. Dr. Christopher Bassin (February 25, 2020-February 26, 2020)
19. Dr. Mohammad Assaf (November 19, 2020)
20. Dr. Melvin Goldin (May 24, 2022)
21. Employee’s C-42 form (submitted by Employer)
22. October 4, 2021 email from Employee’s counsel and attached C-42 form,
signed September 30, 2021 (submitted by Employer)
23. Employer’s August 4, 2022 letter and medical questionnaire to Dr. Goldin
(submitted by Employer)
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24. Dr. Goldin’s August 8, 2022 response to Employer’s August 4, 2022 letter
(submitted by Employer)
25. Dr. Assaf’s June 7, 2022 medical record (submitted by Employer)
Technical Record:
1. Petition for Benefit Determination (March 9, 2021)
2. Additional Issues of Employer (April 22, 2021)
3. Dispute Certification Notice (April 29, 2021)
4. Request for Expedited Hearing (October 14, 2022)
5. Order on Request for Expedited Hearing (October 18, 2022)
6. Docketing Notice for On-the Record Expedited Hearing
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on January 18, 2023.
Name Via Service sent to:
Email
Andre’ C. Wharton, X andrecwharton@thewhartonlawfirm.com
Employee’s Attorney lafranklin@thewhartonlawfirm.com
Heather Douglas and Jenna Macnair, X hdouglas@manierherod.com
Employer’s Attorneys jmacnair@manierherod.com
ecollins@manierherod.com
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
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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 *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
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