FILED Oct 18, 2023 10:03 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT GRAY
TIMOTHY HOSS, ) Docket Number: 2018-02-0051 Employee, ) v. ) ASR METALS, ) State File Number: 87088-2014 Employer, ) And ) TECHNOLOGY INSURANCE ) Judge Brian K. Addington COMPANY, ) Carrier. )
COMPENSATION ORDER
The Court held a Compensation Hearing on October 12, 2023, in which Mr. Hoss requested authorization for additional treatment for his 2014 back injury per the settlement agreement. For the following reasons, the Court holds Mr. Hoss is entitled to the requested benefits.
Claim History
Mr. Hoss injured his back, right knee, and left shoulder when he was involved in a work-related motor vehicle accident. The Court approved the parties’ proposed settlement with lifetime medical benefits in March 2020.
ASR authorized Dr. Jim Brasfield to treat Mr. Hoss’s back injury. On December 13, 2021, Dr. Brasfield ordered an EMG to treat pain in both legs. Mr. Hoss testified that ASR denied Dr. Brasfield’s referral to perform the EMG in his office. ASR then offered a panel of neurologists. Mr. Hoss testified that he selected a doctor in Knoxville, but the adjuster told him that she did not want him driving that far to an appointment and asked him to select Dr. Michael Dew instead. 1
1 The physician panel documents that Mr. Hoss selected Dr. Dew on February 13, 2023.
1 Mr. Hoss agreed to see Dr. Dew, and the EMG of his right leg was performed in May 2023. On August 23, he reported left foot weakness to Dr. Dew, who ordered an MRI of the back to rule out neuropathy.
At the hearing, counsel for ASR submitted an email as a late-filed exhibit without objection. The email from Technology Insurance’s scheduling service confirmed the company is setting up the MRI. 2
Mr. Hoss testified that ASR’s adjuster has repeatedly denied or delayed his treatment. She will not return his phone calls, and he is frustrated with the process of obtaining the medical benefits to which he is entitled. He also requested mileage reimbursement for his doctor visits but offered no proof.
ASR asserted that Mr. Hoss is entitled to medical benefits under their agreement, but it has no control over physician’s offices or how they schedule appointments.
Findings of Fact and Conclusions of Law
At a compensation hearing, Mr. Hoss must show by a preponderance of the evidence that he is entitled to the requested benefits. Tenn. Code Ann. § 50-6-239(c)(6) (2023). The Court holds that he satisfied this burden.
The Workers’ Compensation Law provides that, “the employer or the employer’s agent shall furnish, free of charge to the employee, such medical and surgical treatment . . . made reasonably necessary by accident [.]” Tenn. Code Ann. § 50-6-204(a)(1)(A). Here, the parties agreed that Mr. Hoss is entitled to lifetime medical treatment for his 2014 back injury and Dr. Dew is the authorized physician.
An insurance company has four days to approve an MRI or send the request for utilization review. Tenn. Comp. R. & Reg. 0800-02-06-.06(1)-(2) (February, 2022). Here, the adjuster failed to timely authorize the MRI. Further, Mr. Hoss testified without contravention that the adjuster will not return his calls. Therefore, the Court holds that ASR shall promptly arrange the MRI Dr. Dew ordered.
Mr. Hoss requested mileage reimbursement, but he did not submit an accounting of the mileage he seeks. Section 50-6-204(I)(4)(A) states that, “upon request, the employee shall be reimbursed for reasonable travel expenses.” The Court cannot award Mr. Hoss mileage because he did not prove the underlying facts necessary to award this benefit. He may submit a request for mileage reimbursement to ASR and, if appropriately documented, the Court encourages ASR to reimburse Mr. Hoss’s mileage according to the Workers’ Compensation Law.
2 The email was sent on October 11, 2023, one day before the Compensation Hearing.
2 Finally, the Bureau’s Compliance Program is authorized to assess penalties under the Workers’ Compensation Law as well as the General Rules of the Workers’ Compensation Program. The Court refers this case to the Compliance Program for possible penalty assessments regarding its handling of Mr. Hoss’s claim. Specifically, the Program should consider whether Technology Insurance Company repeatedly and generally failed to timely provide medical benefits and failed to timely approve the MRI that Dr. Dew, the authorized treating physician, ordered on August 23. See Tenn. Code Ann. § 50-6- 118(a)(8). IT IS THEREFORE, ORDERED as follows:
1. ASR shall pay future medical benefits reasonably necessary for Mr. Hoss’s work injuries under Tennessee Code Annotated section 50-6-204(a)(1)(A).
2. The Court taxes the $150.00 filing fee to ASR, to be paid to the Court Clerk under Tennessee Compilation Rules and Regulations 0800-02-21-.06 within five business days of this order becoming final, and for which execution might issue if necessary.
3. ASR shall file an SD-2 with the Court Clerk within ten days of entry of this order.
4. Unless appealed, this order shall become final thirty days after issuance.
ENTERED October 18, 2023.
/s/ Brian K. Addington ______________________________________ BRIAN K. ADDINGTON, JUDGE Court of Workers’ Compensation Claims
3 Appendix
Exhibits:
1. Medical Records-Dr. Jim Brasfield 2. Medical Records-Dr. Michael Dew 3. Employee’s Choice of Physician 4. Email Correspondence
Technical Record:
1. Petition for Benefit Determination 2. Request to Resume Mediation 3. Dispute Certification Notice 4. Hearing Request 5. Status Hearing Order 6. Pre-Compensation Hearing Statement
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Order was sent on October 18, 2023.
Name Certified Fax Email Service sent to: Mail Timothy Hoss, X X hossxx63@aol.com Employee 23489 Green Spring Road Abingdon, VA 24211 Matthew Morris, X mmorris@wimberlylawson.com Employer’s Attorney WC Compliance X wccompliance.program@tn.gov Program
______________________________________ PENNY SHRUM, COURT CLERK wc.courtclerk@tn.gov
4 NOTICE OF APPEAL Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries-at-work/ wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________ Employee
v.
___________________________________________________________________________ Employer
Notice is given that ____________________________________________________________________ [List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file- stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________ □ Compensation Order filed on__________________ □ Other Order filed on_____________________ issued by Judge _________________________________________________________________________.
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FILED Oct 18, 2023 10:03 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT GRAY
TIMOTHY HOSS, ) Docket Number: 2018-02-0051 Employee, ) v. ) ASR METALS, ) State File Number: 87088-2014 Employer, ) And ) TECHNOLOGY INSURANCE ) Judge Brian K. Addington COMPANY, ) Carrier. )
COMPENSATION ORDER
The Court held a Compensation Hearing on October 12, 2023, in which Mr. Hoss requested authorization for additional treatment for his 2014 back injury per the settlement agreement. For the following reasons, the Court holds Mr. Hoss is entitled to the requested benefits.
Claim History
Mr. Hoss injured his back, right knee, and left shoulder when he was involved in a work-related motor vehicle accident. The Court approved the parties’ proposed settlement with lifetime medical benefits in March 2020.
ASR authorized Dr. Jim Brasfield to treat Mr. Hoss’s back injury. On December 13, 2021, Dr. Brasfield ordered an EMG to treat pain in both legs. Mr. Hoss testified that ASR denied Dr. Brasfield’s referral to perform the EMG in his office. ASR then offered a panel of neurologists. Mr. Hoss testified that he selected a doctor in Knoxville, but the adjuster told him that she did not want him driving that far to an appointment and asked him to select Dr. Michael Dew instead. 1
1 The physician panel documents that Mr. Hoss selected Dr. Dew on February 13, 2023.
1 Mr. Hoss agreed to see Dr. Dew, and the EMG of his right leg was performed in May 2023. On August 23, he reported left foot weakness to Dr. Dew, who ordered an MRI of the back to rule out neuropathy.
At the hearing, counsel for ASR submitted an email as a late-filed exhibit without objection. The email from Technology Insurance’s scheduling service confirmed the company is setting up the MRI. 2
Mr. Hoss testified that ASR’s adjuster has repeatedly denied or delayed his treatment. She will not return his phone calls, and he is frustrated with the process of obtaining the medical benefits to which he is entitled. He also requested mileage reimbursement for his doctor visits but offered no proof.
ASR asserted that Mr. Hoss is entitled to medical benefits under their agreement, but it has no control over physician’s offices or how they schedule appointments.
Findings of Fact and Conclusions of Law
At a compensation hearing, Mr. Hoss must show by a preponderance of the evidence that he is entitled to the requested benefits. Tenn. Code Ann. § 50-6-239(c)(6) (2023). The Court holds that he satisfied this burden.
The Workers’ Compensation Law provides that, “the employer or the employer’s agent shall furnish, free of charge to the employee, such medical and surgical treatment . . . made reasonably necessary by accident [.]” Tenn. Code Ann. § 50-6-204(a)(1)(A). Here, the parties agreed that Mr. Hoss is entitled to lifetime medical treatment for his 2014 back injury and Dr. Dew is the authorized physician.
An insurance company has four days to approve an MRI or send the request for utilization review. Tenn. Comp. R. & Reg. 0800-02-06-.06(1)-(2) (February, 2022). Here, the adjuster failed to timely authorize the MRI. Further, Mr. Hoss testified without contravention that the adjuster will not return his calls. Therefore, the Court holds that ASR shall promptly arrange the MRI Dr. Dew ordered.
Mr. Hoss requested mileage reimbursement, but he did not submit an accounting of the mileage he seeks. Section 50-6-204(I)(4)(A) states that, “upon request, the employee shall be reimbursed for reasonable travel expenses.” The Court cannot award Mr. Hoss mileage because he did not prove the underlying facts necessary to award this benefit. He may submit a request for mileage reimbursement to ASR and, if appropriately documented, the Court encourages ASR to reimburse Mr. Hoss’s mileage according to the Workers’ Compensation Law.
2 The email was sent on October 11, 2023, one day before the Compensation Hearing.
2 Finally, the Bureau’s Compliance Program is authorized to assess penalties under the Workers’ Compensation Law as well as the General Rules of the Workers’ Compensation Program. The Court refers this case to the Compliance Program for possible penalty assessments regarding its handling of Mr. Hoss’s claim. Specifically, the Program should consider whether Technology Insurance Company repeatedly and generally failed to timely provide medical benefits and failed to timely approve the MRI that Dr. Dew, the authorized treating physician, ordered on August 23. See Tenn. Code Ann. § 50-6- 118(a)(8). IT IS THEREFORE, ORDERED as follows:
1. ASR shall pay future medical benefits reasonably necessary for Mr. Hoss’s work injuries under Tennessee Code Annotated section 50-6-204(a)(1)(A).
2. The Court taxes the $150.00 filing fee to ASR, to be paid to the Court Clerk under Tennessee Compilation Rules and Regulations 0800-02-21-.06 within five business days of this order becoming final, and for which execution might issue if necessary.
3. ASR shall file an SD-2 with the Court Clerk within ten days of entry of this order.
4. Unless appealed, this order shall become final thirty days after issuance.
ENTERED October 18, 2023.
/s/ Brian K. Addington ______________________________________ BRIAN K. ADDINGTON, JUDGE Court of Workers’ Compensation Claims
3 Appendix
Exhibits:
1. Medical Records-Dr. Jim Brasfield 2. Medical Records-Dr. Michael Dew 3. Employee’s Choice of Physician 4. Email Correspondence
Technical Record:
1. Petition for Benefit Determination 2. Request to Resume Mediation 3. Dispute Certification Notice 4. Hearing Request 5. Status Hearing Order 6. Pre-Compensation Hearing Statement
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Order was sent on October 18, 2023.
Name Certified Fax Email Service sent to: Mail Timothy Hoss, X X hossxx63@aol.com Employee 23489 Green Spring Road Abingdon, VA 24211 Matthew Morris, X mmorris@wimberlylawson.com Employer’s Attorney WC Compliance X wccompliance.program@tn.gov Program
______________________________________ PENNY SHRUM, COURT CLERK wc.courtclerk@tn.gov
4 NOTICE OF APPEAL Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries-at-work/ wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________ Employee
v.
___________________________________________________________________________ Employer
Notice is given that ____________________________________________________________________ [List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file- stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________ □ Compensation Order filed on__________________ □ Other Order filed on_____________________ issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal Provide a short and plain statement of the issues on appeal or basis for relief on appeal: ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________
Parties Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee Address: ________________________________________________________ Phone: ___________________ Email: __________________________________________________________ Attorney’s Name: ______________________________________________ BPR#: _______________________ Attorney’s Email: ______________________________________________ Phone: _______________________ Attorney’s Address: _________________________________________________________________________ * Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee Appellee’s Address: ______________________________________________ Phone: ____________________ Email: _________________________________________________________ Attorney’s Name: _____________________________________________ BPR#: ________________________ Attorney’s Email: _____________________________________________ Phone: _______________________ Attorney’s Address: _________________________________________________________________________ * Attach an additional sheet for each additional Appellee *
I, _____________________________________________________________, certify that I have forwarded a true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this case on this the __________ day of ___________________________________, 20 ____.
______________________________________________ [Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082