Nunley, George David v. Sequatchie Farmers Cooperative ( 2016 )


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  •                                                                                                            FILED
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    TENNESSEE BUREAU OF WORKERS' COMPENSATION
    IN THE COURT OF WORKERS' COMPENSATION CLAIMS
    AT CHATTANOOGA
    GEORGE DAVID NUNLEY,                                       )    Docket No.: 2016-01-0471
    Employee,                                          )
    v.                                                         )
    SEQUATCHIE FARMERS                                         )    State File Number: 70707-2015
    COOPERATIVE,                                               )
    )
    Employer,                                         )    Judge Thomas Wyatt
    And                                                        )
    SENTRY INSURANCE CO.,                                      )
    Carrier.                                          )
    EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS (REVIEW
    OF THE FILE ONLY)
    This matter came before the undersigned Workers' Compensation Judge upon a
    Request for Expedited Hearing filed by George David Nunley pursuant to Tennessee
    Code Annotated section 50-6-239 (2015). The sole issue raised by Mr. Nunley was
    whether he is entitled to receive a panel of physicians from which to select a surgeon
    when his authorized treating physician referred him to another physician in his practice
    group for additional surgery. On November 23, 2016, the Court conducted a Status
    Conference to assist it in considering the appropriateness of Mr. Nunley's request that it
    decide the Request for Expedited Hearing on review of the file only without an
    evidentiary hearing. 1 For the following reasons, the Court determines Mr. Nunley is not
    1
    The Court conducted the Status Conference to determine the position of the employer, Sequatchie Farmers
    Cooperative, as to whether the Court should decide Mr. Nunley's Request for Expedited Hearing without an
    evidentiary hearing. Sequatchie agreed that a decision on a review of the file was appropriate. (T.R. 3.) During the
    Status Conference, the Court asked the parties if they objected to any of the evidence submitted with the Court Clerk
    for consideration on this issue. Neither party objected to the submitted evidence. After reviewing the submitted
    evidence and obtaining the parties' input as to the nature of the issue raised for decision, the Court determined it did
    not need additional evidence to decide the issue before it.
    1
    entitled to the requested relief. 2
    History of Claim
    Mr. Nunley is a thirty-nine-year-old resident of Dunlap, Sequatchie County,
    Tennessee, who injured his lumbar spine lifting tires in the course and scope of his
    employment by Sequatchie Farmers Cooperative. (T.R. 1 at 1.) Sequatchie and its
    carrier accepted the compensability of the claim and proffered Mr. Nunley a panel from
    which he selected neurosurgeon Dr. Timothy Strait as the authorized treating physician.
    (Ex. 1.) Mr. Nunley subsequently underwent two back surgeries under Dr. Strait's care.
    (Ex. 3 at 1-4.)
    When Mr. Nunley continued with significant symptoms following the second
    surgery, Dr. Strait referred him to a physician within his practice group, Dr. Joseph
    Miller, for consideration of whether he needed to undergo spinal fusion surgery. (Ex. 3 at
    8.) Dr. Strait stated in his medical notes that he referred Mr. Nunley to Dr. Miller
    because fusion surgery "is a procedure that [Dr. Miller] performs."
    Id. Dr. Strait noted
    that he would contact the insurance carrier to arrange for Mr. Nunley to see Dr. Miller.
    !d.
    Ty Cobbs, adjuster for Sequatchie's carrier, stated by affidavit that he received a
    "direct referral from Dr. Strait to Dr. Miller." (Ex. 5 at 1.) Mr. Cobbs "accepted the
    referral and chose not to issue a new panel of physicians." !d. He scheduled Mr. Nunley
    to see Dr. Miller and Mr. Nunley attended the appointment. (Ex. 3 at 9-10.)
    Dr. Miller recommended the fusion surgery, but Mr. Nunley requested a second
    opinion before defmitively deciding whether to undergo the surgery. (Ex. 3 at 10.) Dr.
    Miller recommended Dr. Richard Pearce for the second opinion.
    Id. Sequatchie's carrier proffered
    a panel that included Dr. Pearce, and Mr. Nunley selected him for the second
    opinion. 3 (Ex. 4 at 2.)
    Mr. Nunley subsequently decided he wanted Dr. Pearce to become his treating
    physician (Ex. 4 at 2) and filed a Petition for Benefit Determination seeking to
    accomplish the above goal. (T.R. 1l During the November 23 Status Conference, Mr.
    Nunley's attorney contended he believed the spirit of the law entitled his client to a panel
    2
    A complete listing of the technical record and the exhibits admitted into evidence is attached as an appendix to this
    Order.
    3
    The submitted evidence indicates Sequatchie's carrier sent information for Dr. Pearce to consider in deciding
    whether he will agree to provide a second opinion. (Ex. 5 at 2.) As of the latest information indicated in the
    submitted evidence, Dr. Pearce has not made a decision whether to provide the second opinion.
    4
    1t appears Mr. Nunley wants the Court to consider the panel Sequatchie's carrier gave him to select a physician to
    provide a second opinion as a panel for a physician to comply with Dr. Strait's referral to another surgeon.
    2
    from which to select the surgeon who would operate on him should he opt to undergo the
    recommended surgery.
    Sequatchie's attorney countered that the referral statute in the Workers'
    Compensation Law does not entitle an employee to a panel when the authorized treating
    physician makes a referral to a specific physician. She asserted her clients followed the
    law in accepting the referral from Dr. Strait to Dr. Miller and, as such, Dr. Miller now
    properly fulfills the role of Mr. Nunley's authorized treating physician. Finally,
    Sequatchie argued that it followed the law in providing Mr. Nunley a panel from which to
    select a physician to give a second opinion on whether he should undergo the surgery
    recommended by Dr. Miller. Accordingly, it asserts Mr. Nunley's argument that
    Sequatchie intended to allow him to select a treating surgeon from the panel is without
    basis.
    Findings of Fact and Conclusions of Law
    Here, the parties asked the Court to interpret the statutory scheme regarding the
    selection of treating physicians and second-opinion physicians in the context of
    recommendations for surgery. There is no fact in dispute.
    The subject of referrals by authorized treating physicians is addressed in
    Tennessee Code Annotated section 50-6-204(3)(A)(ii) (2015), which provides that the
    employer, and not the employee, has the right to substitute a timely-submitted panel of
    physicians as an alternative to accepting the authorized treating physician's referral to a
    specific physician. A review of the Tennessee Workers' Compensation Law fails to
    reveal any statutory provision that provides the employee a corresponding right to require
    an employer to provide a panel when the employee does not want to see the referral
    physician specified by the authorized treating physician.
    Mr. Nunley rests his argument for a panel here on the premise that it is unfair for
    the employer to escape a treating physician's direct referral by proffering a panel when
    the employee cannot likewise do so. In other words, what is good for the goose is good
    for the gander. Mr. Nunley's position, however, ignores the plain language of the
    Workers' Compensation Law.
    Mr. Nunley's reliance on the Supreme Court's decision in Employers Ins. of
    Wausau v. Carter, 
    522 S.W.2d 174
    (Tenn. 1975), is misplaced. The Supreme Court in
    Carter described an employer's provision of medical benefits without allowing an
    employee to select the treating physician from a panel as a "usurpation of the privilege of
    the employee to choose the ultimate treating physician," but it did so in the instance of
    the employer's failure to provide a panel at the outset of the employee's treatment.
    
    Carter, supra, at 176
    . For this reason, the Carter opinion is inapplicable here since
    Sequatchie and its carrier complied with its obligation to provide Mr. Nunley a panel
    3
    from which he selected Dr. Strait as his initial authorized treating physician. 5
    Mr. Nunley's argument that Sequatchie intended the panel from which he selected
    Dr. Pearce as a panel for selection of a referral surgeon is without merit. Dr. Miller's
    initial treatment note discussed the fact Mr. Nunley asked for a second opinion on the
    issue of whether he should undergo the fusion surgery recommended by Dr. Miller. The
    note itself indicates that Dr. Miller recommended Dr. Pearce, but only for the second
    opinion, and not to perform the surgery. Tennessee Code Annotated section 50-6-
    204(3)(C) (2015) provides that an employee may require the employer to pay for a
    second opinion on recommended surgery, but clearly states that an employee's utilization
    of the statutory procedure "shall not alter the previous selection of the treating physician
    or chiropractor."
    There is no evidence in the file to indicate that Sequatchie proffered the panel
    from which Mr. Nunley selected Dr. Pearce for any reason other than to comply with its
    obligation to provide Mr. Nunley a second opinion on surgery under section 50-6-
    204(3)(C). As stated previously, Sequatchie was within its statutory right to accept Dr.
    Miller as referral physician without offering Mr. Nunley a panel and the record indicates
    no evidence indicating Sequatchie waived this right in proferring the panel from which
    Mr. Nunley selected Dr. Pearce. In view of the above-stated factors, the Court finds Mr.
    Nunley's selection of Dr. Pearce shall be for a second opinion on surgery only.
    Lastly, Mr. Nunley argued that Dr. Strait's referral to Dr. Miller meant Dr. Strait
    would no longer treat him and, as such, Mr. Nunley contends Tennessee Code Annotated
    section 50-6-204(a)(3)(G) (2015) entitles him to a panel from which to select a new
    authorized treating physician. The Court holds this argument fails for two reasons. First,
    while Dr. Strait's referral note is silent on whether he will resume Mr. Nunley's treatment
    if and when Dr. Miller refers him back, it does not indicate Dr. Strait has declined to
    further treat Mr. Nunley.
    Also, section 204(a)(3)(G) is inapplicable because it applies only where a provider
    included on the employer's initial panel "declines to accept the employee as a patient."
    (Emphasis added.) The plain language of this subparagraph indicates it applies to
    circumstances occurring before a physician begins treating an employee and not after a
    period of treatment has already occurred. Here, Dr. Stait accepted Mr. Nunley as his
    patient and, in fact, performed two surgeries before referring him to Dr. Miller for
    consideration of a surgical procedure that Dr. Stait did not perform. Accordingly, this
    provision offers Mr. Nunley no basis for obtaining the relief he requested.
    5
    The Workers' Compensation Appeals Board has confirmed the viability of the above-referenced holding in Carter
    under the new law, but only in the context of holding an employer cannot dictate treatment by a single provider at
    the outset of the claim. See Lamm v. E. Miller Construction, Inc., No. 2015-01-0429, 2016 TN Wrk. Comp. App.
    Bd. LEXIS 83, at *17-18 (Tenn. Workers' Comp. App. Bd. Nov. 8, 2016).
    4
    The statutory scheme employed here by the general assembly indicates that it did
    not intend section 204(a)(3)(G) to apply to a referral situation. Instead, Tennessee Code
    Annotated section 50-6-204(a)(3)(E) (2015) provides for a seamless continuity of
    treatment in the referral context by establishing the referral physician as the authorized
    treating physician until the referral physician refers the employee back to the initial
    authorized treating physician. Here, that has not happened. 6
    In view of the above, the Court finds Mr. Nunley will not likely prevail in
    establishing at trial his entitlement to the requested relief. Accordingly, the Court denies
    the relief he sought.
    IT IS, THEREFORE, ORDERED as follows:
    1. Mr. Nunley's request for a panel from which to select a referral physician is
    denied.
    2. This matter is set for a Status Hearing on February 3, 2017, at 10:00 a.m.
    Eastern Time.
    ENTERED this the 6th day of December, 2016.
    Judg4~
    Court of Workers' Compensation Claims
    Status Rearing:
    A Status Hearing has been set with Judge Thomas Wyatt, Court of Workers'
    Compensation Claims. You must call toll-free at 855-747-1721 or 615-741-3061 to
    participate in the Status 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.
    6
    Nothing in this order precludes Mr. Nunley from requesting a new panel of treating physicians should Dr. Strait
    decline to treat him if and when Dr. Miller refers him back to Dr. Strait.
    5
    Right to Appeal:
    Tennessee Law allows any party who disagrees with this 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 file 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 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
    6
    Clerk within five business days of the 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.
    APPENDIX
    Exhibits:
    1. Agreement Between Employer/Employee Choice of Physician (C-42) for
    authorized treating physician;
    2.   Agreement Between Employer/Employee Choice of Physician (C-42) for second
    opinion;
    3.   Medical Records of Erlanger Health System-Neurosurgery Group/Drs. Timothy
    Strait and Joseph Miller;
    4.   Affidavit of George David Nunley; and
    5.   Affidavit of Ty Cobbs.
    Technical record: 7
    1.   Petition for Benefit Determination;
    2.   Dispute Certification Notice;
    3.   Employee's Brief Supporting Petition for Benefit Determination;
    4.   Request for Expedited Hearing;
    5.   Employer's Notice Regarding Motion for Expedited Hearing; and
    6.   Employer's Brief in Opposition to Motion for Expedited Hearing (without exhibits
    originally attached to the brief, which the Court made part of the record as
    evidentiary exhibits).
    7
    The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
    Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
    allegations unless established by the evidence.
    7
    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 6th day of
    December, 2016.
    Name                     Via Email                  Service sent to:
    Lew Belvin,                                X            lew.belvin@mcmahonlawfirm.com
    Attorney
    Lee Anne Murray,                           X            leeamurray@feeneymurray.com
    Attorney
    1   m, Clerk of Court
    orkers' Compensation Claims
    8
    

Document Info

Docket Number: 2016-01-0471

Judges: Thomas Wyatt

Filed Date: 12/6/2016

Precedential Status: Precedential

Modified Date: 1/9/2021