Evans, Antron v. Family Dollar Stores, Inc.

2022 TN WC 66
CourtTennessee Court of Workers' Compensation Claims
DecidedSeptember 2, 2022
Docket2022-08-0195
StatusPublished

This text of 2022 TN WC 66 (Evans, Antron v. Family Dollar Stores, Inc.) 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
Evans, Antron v. Family Dollar Stores, Inc., 2022 TN WC 66 (Tenn. Super. Ct. 2022).

Opinion

FILED Sep 02, 2022 01:22 PM(CT)

TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

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

AT MEMPHIS ANTRON EVANS, ) Employee, ) Docket No. 2022-08-0195 V. ) ) FAMILY DOLLAR STORES, INC., ) State File No. 800764-2022 Employer, ) And, ) SAFETY NATL. CAS. CORP., ) Judge Allen Phillips Carrier. ) )

EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS, GRANTING ATTORNEYS FEES AND REFERRAL FOR POTENTIAL PENALTIES

Mr. Evans requested a panel of psychiatrists, attorney’s fees incurred because of Family Dollar’s failure to timely initiate medical benefits, and payment of a medical bill. Family Dollar contended he was not entitled to the panel because his authorized physician did not make a psychiatric referral, and it disputed that it owed the bill. As to attorney’s fees, Family Dollar contended it did not wrongfully deny the claim.

After considering the issues at an Expedited Hearing on August 30, 2022, the Court denies Mr. Evans’s requests for a panel of psychiatrists and payment of the bill. However, it grants his request for attorney’s fees and also refers Family Dollar to the Compliance Program for consideration of penalties.

History of Claim On October 15, 2021, two armed assailants robbed the store where Mr. Evans worked, and one of them hit Mr. Evans’s head with a gun. Mr. Evans said it bloodied his head and rendered him temporarily unconscious. The assailants then forced him to try to open the store’s safe and cash register while threatening to shoot him.

Afterwards, Mr. Evans called the police and his store manager. An ambulance

l came, and the first responders tended to his head wound. The next day, Mr. Evans went to an emergency room where the provider diagnosed headaches and recommended follow-up with a primary care physician. The provider noted “no psychiatric complaints” but gave Mr. Evans “patient education information” for victims of assault which included a statement that victims often suffer “strong emotions” and may find counseling helpful.

Later that month, Mr. Evans obtained counsel, who contacted Family Dollar’s insurance carrier to obtain medical treatment for Mr. Evans. Counsel learned the carrier had not opened a claim, and over the next few months, she continued to request that Family Dollar do so. However, nothing happened until five months after the injury, when Family Dollar completed a First Report of Work Injury. A week after that, it provided a panel of neurologists.

Mr. Evans chose Dr. Mohammad Assaf, whom he saw only once, on May 17, 2022, although he awaits another appointment. On May 17, Dr. Assaf diagnosed headaches and post-concussion syndrome and said Mr. Evans could work without restriction. Dr. Assaf noted no psychiatric complaints, specifically finding no depression, anxiousness, decrease in concentration, or sleeplessness due to something other than his headaches. His record concluded with this language: “Patient Referred Out and Summary of Care Provided: No.”

Mr. Evans continues to work at Family Dollar and is now an assistant manager. He testified that he wanted psychiatric evaluation because of flashbacks of the robbery and dreams of being at gunpoint. He is scared when he goes to the safe and when he closes the store at night, as that was when the robbery happened. He said he had never had psychiatric problems or treatment previously.

In support of his claim, Mr. Evans cited Lewis v. Molly Maid, 2016 TN Wrk. Comp. App. Bd. LEXIS 19, at *9 (April 20, 2016), for the proposition that to receive a panel, an employee does not have to establish compensability, but must only show the occurrence of an incident and resulting symptoms. Here, he claimed he notified Dollar General of a psychiatric problem in October, and Family Dollar should have provided a panel because he suffered an injury and expressed a need for medical treatment. He also said his “injury” fits the statutory definition of a mental injury and added that the literature given him at the emergency room regarding counseling was also sufficient “to trigger Employer’s liability to provide a psychiatry panel.”

Mr. Evans recognized the requirements of Tennessee Code Annotated section 50- 6-204(h) (2021) which reads: “All psychological or psychiatric services . . . shall be rendered only by psychologists or psychiatrists and shall be limited to those ordered upon the referral of [a panel physician].” However, he said his interpretation of the statute required that he “unpack” it “by separating the compound sentence.” Specifically, he said the first clause “means just as it reads,” an employee can receive psychologic or psychiatric treatment only from providers in those specialties. But Mr. Evans reads the second clause to mean that an employer is not “required to heed to the psychological or psychiatric recommendations of a medical provider that was not selected through [a] panel.” In other words, the second clause means only that an employer is not required to follow an unauthorized psychiatrist’s recommendations.

Mr. Evans anticipated Family Dollar would argue that the second clause requires an employer to provide psychiatric treatment only if a panel physician makes a referral for it. However, he contended that such reading means “no matter the psychological complaints expressed,” an injured worker “would be up the creek without a paddle” unless a panel physician referred him to a psychiatrist. Mr. Evans did not believe the Legislature intended that result.

Mr. Evans also requested payment of the emergency room bill from October, claiming it was clearly related to treatment required by the incident.

As to attorney’s fees, Mr. Evans pointed to his first contact with Family Dollar in October, his continued contact through January, and his filing of a Petition for Benefit Determination in February. Despite those efforts, Family Dollar did nothing until March, and Mr. Evans said that “sweeping delay” was “precisely the scenario” contemplated by Tennessee Code Annotated section 50-6-226(d)(1)(B) when it provides for attorney’s fees for failure to timely initiate benefits.

For its part, Family Dollar argued just as Mr. Evans surmised: it contended the second clause of section 204(h) should be interpreted just as written, meaning an employer must provide psychiatric treatment only if a panel physician makes a referral. In support, Family Dollar relied on Beech v. G4S Secure Solutions (USA), Inc., TN Wrk. Comp. App. Bd. LEXIS 71 (Dec. 16, 2020), where the employee also was struck in the head during an assault and the employer also provided a panel of neurologists. The selected neurologist noted the employee complained of anxiety, cognitive dysfunction, and sleeplessness and referred the employee to a neuropsychologist. The employer did not authorize the referral or provide a psychiatric panel, so the employee requested an expedited hearing.

At the hearing, the employer contended that the employee had not shown the psychological referral was medically necessary or related to the incident. The trial court rejected the employer’s argument, holding that the employee did not have to show medical necessity but only that he would likely prevail as to whether a panel physician made a psychological referral. The Appeals Board affirmed, writing that:

... Employer misconstrues the burden of proof and misstates the relevant issue. The issue is not whether Employee has come forward with sufficient evidence to

3 convince the trial court that the referral was medically necessary or that his alleged psychological injury is causally related to the work incident. That was not Employee's burden to prove at that stage of the case.

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Related

§ 50-6-239
Tennessee § 50-6-239(d)(1)

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2022 TN WC 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-antron-v-family-dollar-stores-inc-tennworkcompcl-2022.