Beech, John v. G4S SECURE SOLUTIONS (USA), INC.

2020 TN WC 99

• Court: Tennessee Court of Workers' Compensation Claims
• Decided: September 28, 2020
• Docket: 2020-05-0177
• Status: Published

Opinion

FILED Sep 28, 2020 10:08 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

AT MURFREESBORO

JOHN BEECH ) Docket No.: 2020-05-0177 Employee, ) v. ) ) G4S SECURE SOLUTIONS (USA), ) State File No.: 72850-2019 INC., ) Employer, ) ) And ) ) NEW HAMPSHIRE INS. CO., ) Judge Dale Tipps Carrier. )

EXPEDITED HEARING ORDER GRANTING BENEFITS (DECISION ON THE RECORD)

This case came before the Court on September 22, 2020, for an Expedited Hearing on the record. The central legal issue is whether Mr. Beech is likely to establish at a hearing on the merits that he is entitled to additional medical benefits in the form of a psychiatric panel. For the reasons below, the Court holds Mr. Beech is entitled to the requested benefits.

Procedural History

The Petition for Benefit Determination and the sworn statement filed with the Request for Expedited Hearing show that Mr. Beech seeks a panel of psychiatrists/psychologists. He filed an Expedited Hearing request seeking a hearing on the record, and G4S filed a response opposing that request. The Court determined that a review of the written materials without an evidentiary hearing was appropriate and issued a Docketing Notice. It also identified the written materials it intended to consider and allowed the parties seven business days to file position statements and any objections to

1 the admissibility of those materials. Both parties filed a position statements, and G4S filed several evidentiary objections.1

History of Claim

While Mr. Beech was working for G4S on August 8, 2019, a patient assaulted him. He reported an injury, and G4S authorized treatment with a neurologist, Dr. Richard Rubinowicz.

Dr. Rubinowicz first saw Mr. Beech on September 9. He assigned light-duty restrictions and On September 18, Dr. Rubinowicz assessed Mr. Beech with post-concussion syndrome and said his anxiety and inability to funct

Dr. Rubinowicz followed up with a letter on September 24 explaining that he saw Mr. Beech for his headaches, stating:

I feel there is nothing I can do to help at this time and I have asked for him to be referred to a Neuropsych for his anxiety that he seems to be having more of a problem with. After speaking with Mr. Beech on 2 occasions, I feel that there is no neurological reason that he cannot return to work full duty.

G4S did not provide a panel of neuropsychologists or psychiatrists.

On July 6, 2020, G4S sent a questionnaire letter to Dr. Rubinowicz, along with Mr. psychiatric treatment records. The letter ongoing psychiatric treatment, can you say to a reasonable degree of medical certainty that Mr. Beech needs a psychiatric or neuropsychological referral primarily as a result of the alleged injury that occurred on

Findings of Fact and Conclusions of Law

Mr. Beech seeks an order for a panel of psychiatrists/psychologists. Tennessee Code Annotated section 50-6-204(h) psychological or psychiatric services available under subdivisions (a)(1) and (b)(1) shall be rendered only by

1 also reiterated several arguments from its Objection to Request for a Decision on the Record. As the Court addressed these arguments in its Docketing Notice, it will not do so here. 2 psychologists or psychiatrists and shall be limited to those ordered upon the referral of physicians authorized under subdivision (a)(4). any treatment recommended by a panel physician shall be presumed to be medically necessary. Tenn. Code Ann. § 50-6- 204(a)(3)(H).

In this expedited hearing, Mr. Beech need not prove every element of his claim by a preponderance of the evidence to receive relief. Instead, he must provide sufficient evidence from which this Court might determine he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). The Court finds he carried this burden and orders G4S to provide the requested panel.

G4S contends that Mr. Beech is not entitled to the panel because: 1) the recommended referral is not medically necessary and; 2) the condition for which the panel was recommended is not work-related. The Court finds neither argument persuasive.

Regarding the first argument, G4S relies on Dr. Rubinowicz where he stated that there was no neurological reason why Mr. Beech could not return to

longer medically necessary.

on an inference that either Dr Rubinowicz made the psychiatric referral or that the resolution of those symptoms obviated the need for psychiatric evaluation. However, letter and treatment records do not support this interpretation. As the letter plainly states, Dr. Rubinowicz saw Mr. Beech for treatment of a head injury that was causing headaches. It goes on to say that t evaluation . . . referral and the release to full duty are unrelated issues.

G4S next argues that because Mr. Beech was already receiving psychiatric referral were not work-related. The first flaw with this contention is that G4S presented no medical proof to support it. See L TN Wrk. Comp. App. Bd. LEXIS 8, at *16-18 (Feb. 14, 2018)(parties and their lawyers cannot rely solely on their own medical interpretations of the evidence to successfully support their arguments). G4S points to response, but a careful reading of the questionnaire does not support that you say to a reasonable degree of medical certainty that Mr. Beech needs a psychiatric or neuropsychological referral primarily as a result of the alleged in necessarily mean that the work injury was not the primary cause but merely establishes that he cannot say so to a reasonable degree of medical certainty. This distinction is important because Mr. Beech does not have to prove causation at this time. He only must show that he is likely to prevail

3 on the issue of whether his authorized physician made a valid referral.

its insistence on the need to depose Dr. Rubinowcz) is predicated on the idea that a referring doctor must establish causation before the referral is authorized. G4S has not provided any authority for this contention, which the Court finds antithetical to the statutory mandate that any treatment recommended by a panel physician shall be presumed to be medically necessary.2 Further, the Court questions the reliability of causation opinions from doctors whose referrals suggest less expertise in the relevant area of medicine. Instead, the statutory time limits for providing a panel suggest that a more logical and consistent approach would be for an employer to honor an up the question of causation with that specialist.

evaluation. Instead of providing a panel, G4S Dr. treatment recommendation. duty, but also they were unsuccessful. For these reasons, Mr. Beech appears likely to prevail at trial in establishing that he is entitled to the psychiatric or neuropsychological panel.

Regulations 0800-02-01-.06(2). Therefore, the Court refers this case to the Compliance Program for investigation and possible assessment of a civil penalty. Upon its issuance, a copy of this Order will be sent to the Compliance Program. See Tenn. Comp. R. & Regs. 0800-02-24-.03.

IT IS, THEREFORE, ORDERED as follows:

1. G4S shall provide Mr. Beech with medical treatment made reasonably necessary by his August 8, 2019 injury, including a psychiatric or neuropsychological panel.

2. This case is set for a Status Hearing on December 8, 2020, at 9:00 a.m. Please call toll-free at 855-874-0473 to participate. Failure to call or appear might result in a determination of the issues without your further participation. All conferences are set using Central Time.

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 entry of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The

it deposed Dr. Rubinowicz. 4 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 might result in a penalty assessment for non-compliance. For questions regarding compliance, please contact the

ENTERED September 28, 2020.

_____________________________________ Judge Dale Tipps Court of Compensation Claims

APPENDIX

Exhibits:

1. records contained in Exhibit A. 2. September 4, 2019 Panel selection of Dr. Rubinowicz 3. Exhibits to G4S September 2, 2020 Response and Objection to Request for a Decision on the Record. 4.

Technical record:

1. Petition for Benefit Determination 2. Dispute Certification Notice 3. Request for Expedited Hearing 4.

5. Docketing Notice of September 9, 2020 6. Statement in Preparation for On-The-Record Determination 7. Record

5 Evidentiary Objections:

1. Mr. Beech to say that he was referred for additional treatment. 2.

3. Paragraph 8 of Mr. Remainder sustained. 4. Pages 1- 5. Pages 15- for these records may be found on Page 14. 6. Page 21 7. Pages 25-28, 30, 32-

CERTIFICATE OF SERVICE

I certify that a copy of the Expedited Hearing Order was sent as indicated on September 28, 2020.

Name Certified Via Service sent to: Mail Email Christopher D. Markel X cmarkel@markelfirm.com Tiffany B. Sherrill X tbsherrill@mijs.com Compliance Program X WCCompliance.Program@tn.gov

_____________________________________ Penny Shrum, Clerk of Court

WC.CourtClerk@tn.gov

6 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. Tennessee Bureau of Workers’ Compensation 220 French Landing Drive, I-B Nashville, TN 37243-1002 800-332-2667

AFFIDAVIT OF INDIGENCY

I, ________________________________________, having been duly sworn according to law, make oath that because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be waived. The following facts support my poverty.

1. Full Name: 2. Address:

3. Telephone Number: 4. Date of Birth:

5. Names and Ages of All Dependents:

______________________________________ Relationship:

6. I am employed by:

My employer’s address is:

My employer’s phone number is:

7. My present monthly household income, after federal income and social security taxes are deducted, is:

$ ___________________

8. I receive or expect to receive money from the following sources:

AFDC $ ________ per month beginning SSI $ ________ per month beginning Retirement $ ________ per month beginning Disability $ ________ per month beginning Unemployment $ ________ per month beginning Worker’s Comp.$ ________ per month beginning Other $ ________ per month beginning

LB-1108 (REV 11/15) RDA 11082 9. My expenses are:

Rent/House Payment $ ________ per month Medical/Dental $ ___________ per month

Groceries $ ________ per month Telephone $ per month Electricity $ ________ per month School Supplies $ per month Water $ ________ per month Clothing $ per month Gas $ ________ per month Child Care $ per month Transportation $ ________ per month Child Support $ per month Car $_________ per month Other $ _______ per month (describe: )

10. Assets:

Automobile $ (FMV) Checking/Savings Acct. $ House $ (FMV) Other $ Describe:

11. My debts are:

Amount Owed To Whom

I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete and that I am financially unable to pay the costs of this appeal.

_

APPELLANT

Sworn and subscribed before me, a notary public, this

_______ day of , 20_______.

NOTARY PUBLIC

My Commission Expires:

LB-1108 (REV 11/15) RDA 11082