Poellnitz, Robert v. Resolute Forest Products , 2016 TN WC 159 ( 2016 )

frr__ED
July 8, 2016
1N COURT OF
WORKIRS' COMPI SATION
CLAI MS
Time ll:37 AM
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
ROBERT POELLNITZ, Docket No.: 2016-01-0135
Employee,
v. State File No.: 64362-2014
RESOLUTE FOREST PRODUCTS,
Employer,
And Judge: Audrey A. Headrick
TRAVELERS,
Insurance Carrier.
EXPEDITED HEARING ORDER
(REVIEW OF THE FILE)
This claim came before the Court upon a Request for Expedited Hearing filed by
the employee, Robert Poellnitz, pursuant to Tennessee Code Annotated section 50-6-239
(20 15) for a determination of his entitlement to medical and temporary disability benefits
as to his cervical condition. Mr. Poellnitz requested that the Court decide this matter
upon a review of the file without an evidentiary hearing. Resolute, the employer, did not
object to a review-of-the-file determination. The Court issued its docketing notice on
June 8, 2016, and neither party responded. 1 The central legal issue is whether the
evidence is sufficient for the Court to determine that Mr. Poellnitz is likely to prevail at a
hearing on the merits regarding causation. This Court finds it needs no additional
information to determine whether Mr. Poellnitz is likely to prevail at a hearing on the
merits of the claim. 2 Based upon the record at this time, the Court finds Mr. Poellnitz is
1
Although neither side responded to the Docketing Notice, counsel for Resolute provided a missing document that
was not in the Court's electronic file due to a scanning error. (Ex. 16.) Counsel for Mr. Poellnitz did not object to
its admission.
2
Accordingly, pursuant to Tennessee Code Annotated section 50-6-239(d)(2) (20 15), Tennessee Compilation Rules
and Regulations 0800-02-21-.14(1 )(c) (20 15), and Rule 7.02 of the Practices and Procedures of the Court of
Workers' Compensation Claims (2015), the Court decides this matter upon a review ofthe written materials.
1
not likely to prevail at a Compensation Hearing and denies his request for temporary
disability and medi cal benefits.3
History of the Claim
Mr. Poellnitz is a fifty-two-year-old resident of Muscle Shoals, Colbe1t County
Alabama, who is employed by Resolute as a maintenance technician. 4 The parties
stipulate that Mr. Poellnitz sustained a compensable left-knee injury on August 15, 2014,
when he attempted to weld a piece of pipe, lost his balance, and fell. However, Resolute
disputes the compensability of Mr. Poellnitz's cervical condition.
Resolute provided Mr. Poellnitz with a panel of physicians for his knee on the date
of his injury. Later, Resolute provided him with a panel of orthopedic surgeons, and he
selected Dr. Chad Smalley. (Ex. 6.) The records reflect Dr. Smalley was also treating
Mr. Poellnitz contemporaneously for a left-shoulder condition unrelated to his work
injury. !d.
On July 29, 2015, Dr. Smalley ordered a functional capacity evaluation (FCE) to
determine permanent restrictions for Mr. Poellnitz's left-knee. !d. In a separate office
note for his left-shoulder condition, Dr. Smalley noted Mr. Poellnitz reported "some neck
pain and numbness/tingling into the hand" and indicated he would order an EMG if the
symptom(s) continued. !d. Mr. Poellnitz underwent the FCE on August 25, 2015, with
the evaluator concluding, "[n]o lifting or positional restrictions are recommended for
working due to meeting the job demands." (Ex. 12.)
Mr. Poellnitz later saw Dr. Bruce Thompson, his chiropractor, on August 13,
2015. (Ex. 15.) He reported the following history to Dr. Thompson:
[H]e was doing better until Wednesday, July 22, 2015, 5 when his left
shoulder blade, neck, left hand and little finger and ring finger began
hurting and became weak after performing FCE at work, also his right hip,
left hip and [sic] became aggravated.
!d. Mr. Poellnitz rated his neck pain as eight out of ten. !d. Dr. Thompson's records
reflect that Mr. Poellnitz routinely received chiropractic adjustments from April 4, 2005,
forward for back and neck pain. !d. Prior to his August 13, 2015 visit with Dr.
Thompson, Mr. Poellnitz typically rated his neck pain as three out often. !d.
3
A complete listing ofthe technical record and-exhibits is attached to this Order as an appendix.
4
The Court notes that Employer's First Report of Work Injury or Illness and Notice of Denial identity "Bowater
Newsprint" as the employer. (Ex. I and 2.) However, all other filings identity the employer as "Resolute Forest
Products."
5
The FCE was actually on August 25, 2015.
2
On August 25, 2015, Mr. Poellnitz underwent an FCE at ATI Physical Therapy.
(Ex. 12.) There is no mention in the FCE report of Mr. Poellnitz reporting that he
sustained an injury during the course of his examination.
Mr. Poellnitz saw Dr. Timothy Ashley, his primary care physician, on August 31,
2015, complaining of upper back pain that radiated to his left upper arm. (Ex. 14.) Dr.
Ashley stated:
This is a chronic, but intermittent problem with an acute exacerbation. [Mr.
Poellnitz] states that the current episode of pain started 7 days ago.
Associated symptoms include numbness in the left hand. ARM PAIN-
0-STARTS IN BACK-DID FUNCTIONAL STUDY LAST WEEK
8/25/15-THEN 3 DAYS LATER NOTED NUMNBESS IN LEFT
ARM-CHIROPRACTOR-ADJUSTD [sic] WITH NO RELIEF-NOT
SLEEPING IN 3 DAYS.
Id. (Emphasis in original.) Dr. Ashley gave Mr. Poellnitz a trigger point injection and
ordered a cervical MRI. !d.
Mr. Poellnitz next saw Dr. Smalley on September 9, 2015. (Ex. 10.) Dr. Smalley
previously had separate office notes for Mr. Poellnitz's unrelated left-shoulder condition
and his work-related left-knee injury. Id. However, Dr. Smalley consolidated both
conditions in one office note for that visit. !d. Underneath the section regarding his left-
shoulder condition, one of Dr. Smalley's diagnoses was cervicalgia. !d. Dr. Smalley
referred Mr. Poellnitz for "follow up with a cervical spine specialist after the EMG for
evaluation of his cervical spine." Id. The record reflects Dr. Smalley referred Mr.
Poellnitz to see Dr. Jason Eck, who is in his practice. !d. Regarding the left-knee injury,
Dr. Smalley placed Mr. Poellnitz at maximum medical improvement (MMI) and released
him to return to work on September 28, 2015. !d.
Mr. Poellnitz did not see Dr. Eck. 6 Instead, he saw Dr. Scott Hodges, who is in
Dr. Smalley's practice, on September 22, 2015, with complaints of neck and bilateral arm
pain. !d. Dr. Hodges, an unauthorized physician, noted that Mr. Poellnitz gave the onset
date as four weeks prior and reported, "all the left shoulder pain and weakness began
while doing the Functional Capacity Evaluation for CL repair." !d. The quality of Mr.
Poellnitz's cervical MRI was too poor for Dr. Hodges to use for diagnosis purposes. !d.
However, he reviewed cervical x-rays and diagnosed Mr. Poellnitz with "acute nerve
injury to two muscles of the C8 myotome, consistent with acute radiculopathy" and an
incidental finding of moderate left carpal tunnel syndrome. !d. Dr. Hodges ordered a
new cervical MRI, took Mr. Poellnitz off work for one week, and opined, "[t]his appears
to be [a] workers' compensation related injury (lifting with FCE)." !d.
6
The record is silent regarding why Mr. Poellnitz did not see Dr. Eck.
3
Following his second cervical MRI, Mr. Poellnitz returned to see Dr. Hodges on
September 29, 2015. !d. After reviewing the MRI, Dr. Hodges diagnosed Mr. Poellnitz
with cervical spinal stenosis and prolapsed cervical intervertebral disc. !d. He noted,
"HNP/foraminal stenosis-severe C6-7 /C7-T1 secondary to workers' compensation
injury." !d. At that time, Dr. Hodges took Mr. Poellnitz off work through November 16,
2015, and ordered an anterior cervical discectomy and fusion, which he performed on
October 14, 2015. (Ex. 11.) The record does not reflect whether Dr. Hodges sought
authorization at any point from Resolute to treat Mr. Poellnitz's neck condition.
On December 7, 2015, Mr. Poellnitz selected Dr. Timothy Strait from a panel
provided by Resolute to address medical causation of his cervical condition. (Ex. 7.) He
saw Dr. Strait on January 4, 2016. (Ex. 13.) Dr. Strait noted Mr. Poellnitz was there for
"neurosurgical consultation today primarily for an Independent Medical Evaluation." !d.
Mr. Poellnitz gave a history of having a work-related left-knee injury that required
surgery and subsequently undergoing an FCE. !d. He stated that, "in the process of
performing [the FCE], [he] experienced pain radiating down his left arm in a radicular
fashion." !d. Mr. Poellnitz told Dr. Strait, "[h]e had never experienced this type of pain
before, although he did report neck pain in the past which frequently led to chiropractic
visits." !d. After examining Mr. Poellnitz, Dr. Strait opined:
[Mr. Poellnitz] clearly has a neurologic deficit within the distribution of the
left C8 nerve root. I find it interesting that he underwent a two level
decompression involving C6-7 and C7-T1 on the left for what is clearly a
singular C8 left nerve root compression syndrome. Nevertheless, the onset
of this nerve root compression syndrome originated from the events during
the performance of the F.C.E. Therefore, this would come under the
auspices of workers' compensation.
!d.
However, in correspondence dated January 19, 2016, from Dr. Strait to Michael
Duggar at Travelers, he changed his previous medical opinion. (Ex. 16.) He stated:
After reviewing the chronology of [Mr. Poellnitz'] symptoms, it is Clear
that his left arm pain did not result from an injury occurring during his
performance of the F.C.E. Therefore, I will rescind my previous opinion
since it was based entirely on the patient's input.
In summary, the medical records clearly indicate that his left arm pain was
not the result of him participating in the F .C.E., which occurred on August
25,2015.
!d. Dr. Strait provided no further explanation regarding the information or records upon
which he relied. Less than a week later, Resolute issued a Notice of Denial of Claim for
4
Compensation only as to the claimed cervical injury "per the opinion of the authorized
treating physician." (Ex. 2.)
In the interim, Dr. Hodges continued seeing Mr. Poellnitz and kept him off work
through February 18, 2016. At that visit, Dr. Hodges took him off work until his next
follow-up visit. The record does not contain any of Dr. Hodges' office notes beyond
February 18, 2016.
On March 21, 2016, Dr. Hodges testified by affidavit regarding the cause of Mr.
Poellnitz's cervical condition. (Ex. 8.) He stated he had reviewed the FCE performed on
August 25, 2015, the IME report of Dr. Strait, and the records of Dr. Smalley, Dr.
Ashley, and Dr. Thompson. Dr. Hodges opined:
[I]t is my opinion, within a reasonable degree of medical certainty, and
considering all causes, that Mr. Poellnitz's cervical injuries, which he
suffered while lifting weights at a functional capacity evaluation for his
work-related left lower extremity injury, arose primarily out of and in the
course and scope of his employment with Resolute Forest Products, and
that the employment contributed to more than fifty percent (50%) in
causing [Mr. Poellnitz's] cervical injuries and the need for surgery on
October 14, 2015.
[T]hat the cervical injuries and the aggravation of any pre-existing cervical
conditions, which Mr. Poellnitz suffered while lifting at a work-related
functional capacity evaluation on August 25, 2015, contributed to more
than fifty percent (50%) in causing Mr. Poellnitz's disablement and the
need for his surgery on October 14, 2015 at Memorial Hospital and the
need for his follow up outpatient care in my offices, for the injuries,
medical conditions and complications, as described in the Memorial records
and in my office notes.
Id. Dr. Jolley also opined that Mr. Poellnitz is not at MMI and is temporarily totally
disabled. ld.
Mr. Poellnitz asked the Court to order medical benefits and temporary disability
benefits. He requested that Resolute pay for medical treatment he obtained from Dr~
Hodges based upon Dr. Smalley's referral to a cervical spine specialist. 7 Mr. Poellnitz
argued Resolute received notice of Dr. Smalley's referral because the records reflect it
received copies of the records of both Dr. Smalley and Dr. Hodges. He also requested
the Court order temporary total disability benefits at the agreed upon compensation rate
of $932.80 from September 2015 forward.
7
As previously indicated, the record reflects that Dr. Smalley actually referred Mr. Poellnitz to Dr. Eck in his
practice although Mr. Poellnitz saw Dr. Jolley in his practice instead.
5
Resolute asked the Court to deny Mr. Poellnitz's request. It contended Resolute
did not receive the notice required under Tennessee Code Annotated section 50-6-
204(a)(3)(A)(ii) (2015) as to Dr. Smalley's referral of Mr. Poellnitz to Dr. Hodges.
Instead, Resolute's alleged it did not receive notice of Mr. Poellnitz's alleged cervical
injury until approximately a month after the alleged injury occurred and several weeks
after Dr. Smalley's referral to Dr. Hodges. It argued Dr. Strait's opinion, as an
authorized treating physician, has the presumption of correctness set forth in Tennessee
Code Annotated section 50-6-102(14 )(E) (20 15) regarding causation. Resolute further
argued that Dr. Hodges is not an authorized treating physician under Tennessee Code
Annotated section 50-6-204(a)(3)(A)(ii) (2015).
Alternatively, if the Court does deem Dr. Hodges to be an authorized treating
physician, Resolute argued the presumption of correctness is rebutted by a preponderance
of the evidence based upon the medical records. It contended the FCE performed on
August 26, 2015, did not substantiate Mr. Poellnitz's allegation that he injured his neck
during the testing. Resolute also pointed out that Mr. Poellnitz complained to Dr.
Smalley on July 29, 2015, of neck pain and numbness and tingling down into his hand,
which was prior to the FCE. It further argued that Mr. Poellnitz complained to Dr.
Thompson about neck and arm symptoms on August 13, 2015, which was twelve days
before the FCE.
Findings of Fact and Conclusions of Law
General Legal Principles
Mr. Poellnitz has the burden of proof on all essential elements of his workers'
compensation claim. Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN
Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015).
However, he need not prove every element of his claim by a preponderance of the
evidence in order to recover temporary disability benefits and/or medical benefits.
McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). Instead,
he must come forward with sufficient evidence from which the trial court can determine
that he is likely to prevail at a hearing on the merits. ld. This lesser evidentiary standard
does not relieve Mr. Poellnitz of the burden of producing evidence of an injury by
accident that arose primarily out of and in the course and scope of employment at an
expedited hearing, "but allows some relief to be granted if that evidence does not rise to
the level of a 'preponderance of the evidence."' Buchanan v. Car lex Glass Co., No.
2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Tenn. Workers' Comp.
App. Bd. Sept. 29, 2015).
Medical Benefits
In the present matter, the Court will first address whether Resolute received
timely notice of the referral by Dr. Smalley, the panel-selected physician, for Mr.
6
Poellnitz to see a cervical spine specialist. Dr. Smalley made the referral on September 9,
2015. (Ex. 10.) Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii) (2015) requires
that when a panel physician makes such a referral, "the treating physician shall . . .
immediately notify the employer." it goes on to state, "[t]he employer shall be deemed to
have accepted the referral, unless the employer, within three (3) business days, provides
the employee a panel of three (3) or more independent reputable physicians, surgeons,
chiropractors or specialty practice groups." Tenn. Code Ann. § 50-6-204(a)(3)(A)(ii)
(20 15). If the employer provides a panel pursuant to this section, "the employee may
choose a specialist . . . to provide treatment only from the panel provided by the
employer." !d. In all cases where the treating physician has referred the employee to a
specialist, "the specialist ... to which the employee has been referred, or selected by the
employee from a panel provided by the employer, shall become the treating physician
until treatment by the specialist ... concludes and the employee has been referred back to
the treating physician selected ... from the initial panel." Tenn. Code Ann. § 50-6-
204(a)(3)(E) (2015).
Neither Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii) (2015) nor the
Tennessee Compilation Rules and Regulations sets forth a particular method of
notification that the treating physician must follow in order to comply with the notice
requirement for a referral. In the September 9, 2015 office note, Dr. Smalley
consolidated Mr. Poellnitz's unrelated left-shoulder condition and work-related left-knee
injury. (Ex. 10.) However, Dr. Smalley documented his referral for Mr. Poellnitz to a
cervical spine specialist with his left-shoulder examination and not in conjunction with
Mr. Poellnitz's left-knee injury. Although Resolute may have received notice of the
referral by receipt of the September 9, 20 15 office note, the Court finds that Dr. Hodges
did not "become the treating physician" under Tennessee Code Annotated section 50-6-
204(a)(3)(A)(ii) (2015) since the referral appeared to be related to Mr. Poellnitz's non-
work-related left-shoulder condition.
The Court also finds that Dr. Strait is not entitled to a statutory presumption of
correctness regarding causation under Tennessee Code Annotated section 50-6-
102(14)(E) (2015). As Dr. Strait's December 7, 2015 office note indicates, he saw Mr.
Poellnitz for a one-time "Independent Medical Evaluation." (Ex. 7.) The Court is
unaware of any statutory law or case law indicating that a physician selected from a panel
to perform an IME is entitled to the statutory presumption of correctness.
Since the Court finds that neither Dr. Hodges nor Dr. Strait is entitled to the
statutory presumption of correctness regarding causation, the Court next considers
whether Mr. Poellnitz satisfied the necessary requirements to qualify for medical
benefits. The Workers' Compensation Appeals Board provided direction regarding the
requirements an employee with pre-existing conditions must satisfy in order to qualify for
medical benefits at an interlocutory hearing:
7
In sum, to qualify for medical benefits at an interlocutory hearing, an
injured worker who alleges an aggravation of a pre-existing condition must
offer evidence that the aggravation arose primarily out of and in the course
and scope of employment. See Tenn. Code Ann. § 50-6-102(13)(A)
(2014). Moreover, the employee must come forward with sufficient
evidence from which the trial court can determine that the employee would
likely establish, to a reasonable degree of medical certainty, that the work
accident contributed more than fifty percent in causing the aggravation,
considering all causes. See Tenn. Code Ann. § 50-6-102(13)(B)-(C).
Finally, an aggravation or exacerbation need not be permanent for an
injured worker to qualify for medical treatment reasonably necessitated by
the aggravation.
Miller v. Lowe's Home Centers, Inc., No. 2015-05-0158,2015 TN Wrk. Comp. App. Bd.
LEXIS 40, at *18 (Tenn. Workers' Comp. App. Bd. Oct. 21, 2015). (T.R. 6 at Ex. 2.)
With those findings in mind, the Court considered the opinions of Dr. Hodges and
Dr. Strait in deciding whether Mr. Poellnitz is likely to prevail at a hearing on the merits
regarding his cervical condition. After evaluating Mr. Poellnitz, Dr. Strait initially
opined that, "the onset of this nerve root compression syndrome originated from the
events during the performance of the F.C.E." (Ex. 13.) Less than two weeks later, Dr.
Strait changed his medical opinion in response to a letter from Travelers. (Ex. 16.) Dr.
Strait opined, "the medical records clearly indicate that his left arm pain was not the
result of him participating in the F.C.E., which occurred on August '25, 2015." !d.
Travelers did not proffer into evidence any documentation sent to Dr. Strait by for
consideration, so it is unclear as to which records he relied upon in rescinding his prior
optmon.
Conversely, in Dr. Hodges' stated in an affidavit, he had reviewed Mr. Poellnitz's
FCE, Dr. Strait's IME, and the records of Dr. Smalley, Dr. Ashley, and Dr. Thompson.
(Ex. 8.) Additionally, Dr. Hodges treated Mr. Poellnitz on numerous occasions and
performed his cervical surgery. He opined:
[T]hat the cervical injuries and the aggravation of any pre-existing cervical
conditions, which Mr. Poellnitz suffered while lifting at a work-related
functional capacity evaluation on August 25, 2015, contributed to more
than fifty percent (50%) in causing Mr. Poellnitz's disablement and the
need for his surgery on October 14, 2015 at Memorial Hospital and the
need for his follow up outpatient care in my offices, for the injuries,
medical conditions and complications, as described in the Memorial records
and in my office notes.
!d.
8
After considering the opinions of Dr. Strait and Dr. Hodges, the Court gives the
greater weight to the opinion of Dr. Strait and finds that Mr. Poellnitz offered insufficient
evidence to establish "that the aggravation arose primarily out of and in the course and
scope of employment." Tenn. Code Ann. § 50-6-102(14)(A) (2015). The Court also ·
finds he is not likely to establish "that the work accident contributed more than fifty
percent in causing the aggravation, considering all causes." See Tenn. Code Ann. § 50-6-
102(14)(B)-(C) (2015). Specifically, the Court finds it troubling that on August 13,2015,
Mr. Poellnitz reported to Dr. Thompson, his chiropractor, that he sustained an injury on
"July 22, 2015 when his left shoulder blade, neck, left hand and little finger and ring
finger began hurting and became weak after performing FCE at work, also his right hip,
left hip and [sic] became aggravated." Although Mr. Poellnitz saw Dr. Thompson on
August 13, 2015, he did not undergo the FCE for his work-related knee injury until
August 25, 2015. The record is silent as to why Mr. Poellnitz reported sustaining a neck
injury during a FCE twelve days before it actually occurred. In light of this
circumstance, the Court denies Mr. Poellnitz's request for medical benefits related to his
cervical condition, and the issue regarding temporary disability benefits is rendered moot.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Poellnitz's request for medical and temporary disability benefits relating to his
cervical condition is denied.
2. This matter is set for an Initial Hearing on September 1, 2016, at 10:00 a.m., ET.
ENTERED this the 8th day of July, 2016.
9
Status Hearing:
A Status Hearing has been set on September 1, 2016, at 10:00 a.m. Eastern Time,
with Judge Audrey A. Headrick, Court of Workers' Compensation Claims. You
must call 423-634-0164 or toll free at 855-383-0001 to participate in the Initial
Hearing.
Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.
Ri ght to Appea l:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing' Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or iLle the Affidavit of
Indigency in accordance with this section shall result in dismissal of the
appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal,
may request, from the Court Clerk, the audio recording of the hearing for the
purpose of having a transcript prepared by a licensed court reporter and filing it
with the Court Clerk within ten calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
10
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within five business days ofthe filing of the appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order 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.
11
APPENDIX
Exhibits:
1. Employer's First Report of Work Injury or Illness
2. Notice of Denial of Claim for Compensation
3. Wage Statement
4. Job description
5. Panel form selecting Dr. Elizabeth Daubner
6. Panel form selecting Dr. Chad Smalley
7. Panel form selecting Dr. Timothy Strait
8. Affidavit of Scott D. Hodges, D.O.
9. Medical records of Dr. Elizabeth Daubner
10. Medical records of Dr. Chad Smalley
11. Operative records of Dr. Scott Hodges
12. Records of ATI Physical Therapy
13. January 4, 2016 office note of Dr. Timothy A. Strait
14. Medical records of Dr. Timothy Ashley
15. Chiropractic records ofDr. Bruce D. Thompson
16. Correspondence from Dr. Strait to Travelers dated January 19, 2016
Technical record:
1. Petition for Benefit Determination
2. Brief Supporting Petition for Benefit Determination
3. Dispute Certification Notice
4. Request for Expedited Hearing
5. Resolute Forest's position statement and amendment
6. Docketing Notice for Review of the File Determination
12
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 8th day of
July, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
G. Brent Burks, Attorney X brentburks@mcmahanlawfirm.com
tim@mcmahanlawfinn.com
Bridget J. Willhite, Attorney X bridget@han·odlawfum.com
melissa@harrodlawfirm.com
Pe ny Shr. n, Clerk of Court
Court of orkers' Compensation Claims
WC.CourtClerk@tn.gov
13