Cook. Lisa v. Newton Nissan of Gallatin/Newton Ford, LLC

2022 TN WC 81
CourtTennessee Court of Workers' Compensation Claims
DecidedNovember 21, 2022
Docket2021-05-0644
StatusPublished

This text of 2022 TN WC 81 (Cook. Lisa v. Newton Nissan of Gallatin/Newton Ford, LLC) is published on Counsel Stack Legal Research, covering Tennessee Court of Workers' Compensation Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook. Lisa v. Newton Nissan of Gallatin/Newton Ford, LLC, 2022 TN WC 81 (Tenn. Super. Ct. 2022).

Opinion

FILED Nov 21, 2022 01:40 PM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT MURFREESBORO

LISA COOK, ) Docket No. 2021-05-0644 Employee, ) v. ) ) NEWTON NISSAN OF GALLATIN/ ) State File No. 57259-2020 NEWTON FORD, LLC, ) Employer, ) ) And ) ) SECURITY NAT. INS. CO., ) Judge Dale Tipps Carrier. )

EXPEDITED HEARING ORDER GRANTING BENEFITS

The Court held an Expedited Hearing on November 10, 2022, on whether Ms. Cook is entitled to additional medical treatment, specifically treatment at the Vanderbilt Pain Management Center, or a panel to replace the pain management panel already provided by Newton. The Court finds that the panel was invalid and, therefore, she is likely to prevail at a hearing on the merits that she is entitled to a new panel.

History of Claim

Ms. Cook, an automobile salesperson, was injured at work on August 4, 2020, when the tailgate of a vehicle fell on her left wrist. Although she reported the injury to her supervisors, they did not offer her any medical treatment. As a result, she went to the local emergency room after she left work. The emergency room doctor recommended that Ms. Cook follow up with an orthopedist, and she made an appointment with Brian Peterson Orthopedics, where she saw a physician’s assistant several times.

On referral from Peterson Orthopedics, Ms. Cook began seeing Dr. Kyle Joyner, who determined she was not a surgical candidate.1 However, he assessed causalgia and referred her to Dr. Jeffrey Hazlewood, a physiatrist, “to determine if there may be a component of CRPS2 or radial sensory neuropathy requiring further treatment.”

Dr. Hazlewood diagnosed deQuervain’s tenosynovitis and provided conservative treatment for three visits. On June 7, he said he had no explanation for her ongoing pain and wrote, “I have done everything I can do.” Dr. Hazlewood suggested that she contact Dr. Joyner to see whether he would be willing to see her again and possibly operate on her deQuervain’s condition. He added, “If Dr. Joyner tells her he will see her back, I will be glad to refer her back to him as I have no further options of treatment.” He then said he would see her in three months for follow-up.

Ms. Cook returned to Dr. Joyner, and he referred her to Dr. Michael Bowman for a nerve block. On her first visit, Dr. Bowman concluded that she met the Budapest criteria for CRPS. When the nerve block provided limited relief, he prescribed medication and occupational therapy. The last time Dr. Bowman saw Ms. Cook, she reported no improvement from her continuing left-wrist pain. He changed her prescription but felt that she had exhausted conservative measures. He suggested that if she did not improve during the eight weeks before her next appointment, he could either refer her to Vanderbilt or order a functional capacity evaluation.

Ms. Cook called Dr. Bowman’s office shortly before her return visit and opted for the referral. He referred her to “Vanderbilt Complex Regional Pain Syndrome Center” on January 4, 2022, for “Pain Medicine. Evaluate and treat.” His clinical reasons for the referral were, “Second Opinion. Complex Regional Pain.” Newton provided a panel of pain-management physicians two days after the referral.

Drs. Bowman and Hazlewood both gave somewhat lengthy depositions in this case.3 Dr. Bowman disagreed with Dr. Hazlewood’s diagnosis of deQuervain’s tenosynovitis. He also testified that, when he last saw Ms. Cook, her objective symptoms had improved to the point that he was unsure whether she had CRPS.

Dr. Hazlewood admitted that he referred Ms. Cook back to Dr. Joyner, although he said he would be willing to see her again. He repeated the tendonitis diagnosis and said she did not have CRPS.

Ms. Cook testified during the hearing that she suffers significant pain in her left

1 Newton authorized Ms. Cook’s treatment with Dr. Joiner and, at some point, paid for her previous unauthorized treatment. 2 Complex regional pain syndrome. 3 Most of the deposition testimony is irrelevant to the only issue before the court – whether Ms. Cook is entitled to a direct referral or a new panel. Therefore, the Court will not summarize the depositions in detail at this time. wrist every day. This pain has been constant and unrelenting since the day of the accident, and it interferes with her work and daily activities. Ms. Cook also confirmed that, except for the pain-management panel, Newton never offered her a panel of physicians.

At the conclusion of the hearing, Ms. Cook requested treatment at the Vanderbilt Pain Management Center. She objected to the panel from Newton because it included Dr. Hazlewood, who had already referred her back to the orthopedists, and two doctors in the Knoxville area, which is far from her home in Lascassas. She contended the panel is not valid and, if the Court will not order treatment at Vanderbilt, she is entitled to a panel of physicians that complies with the locality requirements of Tennessee Code Annotated section 50-6-204(a)(3)(A)(i).

Newton argued that Ms. Cook must select from the existing panel. It contends Dr. Bowman’s direct referral was invalid because he referred Ms. Cook to the Vanderbilt Complex Regional Pain Syndrome Center, which is not the correct name of the clinic. Newton also maintains that it provided the panel within two days of the referral and it meets the statutory requirements for a pain-management panel.4

Findings of Fact and Conclusions of Law

For the Court to grant Ms. Cook’s request, she must prove she is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2022); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

Newton first argued that Dr. Bowman’s referral to Vanderbilt Complex Regional Pain Syndrome Center was invalid because that is not the correct name of the practice. This argument borders on the absurd, since the referral also included the address and telephone number of the Vanderbilt Pain Management Center. It would have taken little or no effort to either contact the clinic or Dr. Bowman for clarification.

Newton also contended that the entire referral was invalid because it was for a second opinion, which is prohibited by Tennessee Code Annotated section 50-6-204(j)(3). This argument is similarly unpersuasive, as the section in question clearly contemplates an employee’s right to a second opinion related to their pain-management treatment, not their referral by an authorized doctor to a pain-management provider.

Which brings the Court to the crux of this case – Newton’s contention that Ms. Cook is entitled only to the existing pain management panel. Both parties briefed this issue as one governed by Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii). However,

4 Newton also asked the Court for a finding that Ms. Cook has reached maximum medical improvement and contended that she does not have CRPS. Since this is not relevant to the issue of whether Ms. Cook is entitled to treatment at Vanderbilt or to another panel, the Court will not address this request. because the referring physician, Dr. Bowman, was not selected from a panel, this section is inapplicable. Ducros v. Metro Roofing and Metal Supply Co., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 62, at *9 (Oct. 17, 2017). Thus, the specific question before the Court is: what is the effect, if any, of a direct referral from a non-panel authorized physician?

The current statute gives no answer to this question, and the Court has identified no explicit authority for ordering an employer to honor a direct referral to a specific provider in this situation.

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Related

§ 50-6-204
Tennessee § 50-6-204(j)(1)
§ 50-6-239
Tennessee § 50-6-239(d)(1)

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2022 TN WC 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-lisa-v-newton-nissan-of-gallatinnewton-ford-llc-tennworkcompcl-2022.