TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Cameron Newton, ) Docket No. 2018-01-0040 ja bis
Employee, ) TENNESSIce COURT OF
Vv. ) WORKERS! COMPENSATION
OM Hixson, LLC, ) State File No. 98735-2017
Employer, )
and )
Trumbull Insurance Company, ) Judge Thomas Wyatt
Carrier. )
EXPEDITED HEARING ORDER FOR ADDITIONAL MEDICAL BENEFITS
AND REFERRAL TO THE BUREAU’S COMPLIANCE UNIT
(ON-THE-RECORD DECISION)
This claim came before the Court on January 4, 2019, on Mr. Newton’s Request
for Expedited Hearing seeking an on-the-record decision. OM Hixson, LLC (OMH) did
not request an in-person hearing, and the Court finds it needs no additional information to
decide the issue based on a review of the record.’ The issue is whether Mr. Newton is
entitled to a panel of psychotherapists. For the reasons below, the Court holds that he is.
History of the Claim
Mr. Newton sustained a psychological injury on December 21, 2017, when
confronted by a threatening guest at the motel where he worked. OMH accepted the
claim as compensable and provided a panel of physicians for authorized treatment. Mr.
Newton selected and saw a general practitioner, who recommended treatment by a
psychiatrist.
Mr. Newton previously requested an Expedited Hearing when OMH did not
provide a compliant panel because it allegedly could not locate psychiatrists willing to
"The Court gave OMH until December 7, 2018, to submit evidence and set January 3, 2019, as both
parties’ deadline for filing position statements and objections to evidence. OMH did not submit evidence,
but filed a position statement.
treat under workers’ compensation. After an in-person hearing, the Court ordered OMH
to provide a compliant psychiatric panel. OMH did so, and Mr. Newton selected
Knoxville psychiatrist Dr. John Robertson.
Mr. Newton saw Dr. Robertson on September 16, 2018. Dr. Robertson diagnosed
post-traumatic stress disorder and ordered: “Psychotherapy twice weekly with trauma
focus and EMDR therapy.” When OMH failed to provide a panel of psychotherapists
after two months, Mr. Newton requested an on-the-record Expedited Hearing seeking a
psychotherapist panel.”
OMH contended that Mr. Newton did not establish that Dr. Robertson was not
providing, or would not provide, the psychotherapy described in his order. It further
contended it does not owe Mr. Newton a panel of psychotherapists because the law limits
treatment of psychological injuries to that provided by psychiatrists or psychologists.
Findings of Fact and Conclusions of Law
Mr. Newton is entitled to a panel of psychotherapists if he shows he is likely to
prevail at a hearing on the merits in establishing his entitlement to the requested panel.
McCord vy. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*7-8, 9 (Mar. 27, 2015). Here, the unrebutted evidence shows that the authorized treating
psychiatrist ordered Mr. Newton to undergo psychotherapy. However, OMH contends
that Mr. Newton did not meet his burden of proof because he failed to establish that (1)
Dr. Robertson is unwilling to provide the prescribed psychotherapy, and (2) Dr.
Robertson’s psychotherapy order is not expressly limited to therapy by a psychiatrist or
psychologist.
Tennessee Code Annotated subsection 50-6-204(a)(1)(A) (2018) provides that the
employer “shall furnish, free of charge to the employee, such medical and surgical
treatment . . . including . . . psychological services as ordered by the attending
physician[.]” (Emphasis added.) In addition, Tennessee Code Annotated subsection 50-
6-102(h) limits treatment for work-related psychological injuries to that “rendered only
by psychologists and psychiatrists[.]”
OMH has denied the psychotherapy ordered by Dr. Robertson, the authorized
treating psychiatrist, for three and one-half months. Its reason is alleged ambiguities in
the doctor’s handwritten order. However, OMH submitted no evidence to support its
claim that Dr. Robertson’s order is fatally ambiguous. OMH likewise introduced no
evidence that it made any effort to clarify the alleged ambiguities.
* Mr. Newton filed a separate Request for Expedited Hearing seeking temporary disability benefits. He
withdrew it after OMH agreed to pay benefits from the date of injury.
2
The Court holds that Mr. Newton will likely prevail at a hearing on the merits that
Dr. Robertson ordered Mr. Newton to undergo psychotherapy from a provider other than
Dr. Robertson himself. Mr. Newton’s affidavit indicated that he understood the
psychotherapy order included a referral to a provider other than Dr. Robertson. This
understanding is logical, in that Mr. Newton lives more than 100 miles away from Dr.
Robertson’s office. Jn any event, OMH could have contacted Dr. Robertson to clarify
any perceived ambiguity, but it did not do so.
OMH?’s contention that it had no obligation to act upon Dr. Robertson’s order
because he did not specify treatment by a psychiatrist or psychologist is without merit.
Instead, OMH had a duty to make a reasonable effort to compile a panel of psychiatrists
or psychologists from which Mr. Newton could select a provider for the prescribed
psychotherapy. Thus, the Court orders that OMH promptly provide Mr. Newton a panel
of psychotherapists in compliance with the Workers’ Compensation Law, and that it
schedule an appointment with the selected provider as soon as possible.
The Court is troubled by the pattern of delay by OMH and/or its carrier in
providing Mr. Newton the benefits to which he is entitled. Mr. Newton was previously
forced to request an Expedited Hearing and participate in an in-person hearing due to
OMH’s delay in providing a psychiatric panel. OMH’s defense was that it could not
locate three psychiatrists willing to treat Mr. Newton under workers’ compensation;
however, it located three psychiatrists willing to treat under workers’ compensation after
the Court ordered it to do so. Finally, OMH did not pay temporary disability benefits
until almost a year after Mr. Newton’s injury, and then only after he requested an
Expedited Hearing.
Here, OMH’s delay in providing a psychotherapy panel forced Mr. Newton to
again seek relief from the Court. This delay was lengthened by OMH’s request for
additional time to submit responsive evidence, which the Court granted, but OMH did not
use,
Tennessee Code Annotated section 50-6-118(a)(11) provides that “[t]he bureau of
workers’ compensation shall . . . establish and collect penalties for . . . [the] [flailure of
any employer to timely provide medical treatment made reasonably necessary by the
accident and recommended by the authorized treating physician[.]” Here, OMH failed to
timely provide treatment recommended by the authorized physician, and the Court refers
the case to the Bureau’s Compliance Unit for consideration of a penalty.
IT IS THEREFORE ORDERED THAT:
l.
OMH and/or its carrier shall promptly provide a panel of psychiatrists or
psychologists for psychotherapy. After Mr. Newton’s selection, OMH and/or its
carrier shall immediately schedule an appointment.
This matter is referred to the Compliance Unit of the Bureau of Workers’
Compensation for assessment of a penalty in the amount it deems appropriate to
address OMH’s delay in providing the services prescribed by Dr. Robertson.
. This matter is set for a Status Hearing at 10:00 a.m. Eastern Standard Time on
March 1, 2019. The parties must call (615) 741-3061 or toll-free at (855) 747-
1721 to participate in the Status Hearing. Failure of a party to call may result in a
determination of the issues without that party’s further participation.
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)
(2018). The 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 may result in a penalty assessment for non-compliance.
For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email at WCCompliance.Program@tn.gov or by calling
(615) 253-1471 or (615) 532-1309.
ENTERED January F, 2019.
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
ADDENDUM
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Expedited Hearing Order for Medical Benefits
4. Request for Expedited Hearing (On-the Record Decision)-Medical Benefits
Exhibits:
—_
.
Affidavit of Cameron Newton
Typed statement of Cameron Newton
Written psychotherapy order of Dr. John Robertson
Wd
Certificate of Service
I certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on January, 2019:
Name Certified | Fax | Email | Service sent to:
Mail ee
Christopher Markel, X =| emarkel(@markelfirm.com
Employee’s Attorney
L. Blair Cannon, X = | blair.cannon@thehartford.com
employer’s attorney,
Employer’s Attorney
Compliance Unit X | Wecompliance.program@tn.gov
Bo py Showin H| pemumurny)
Penny Shrum, Court Clerk
WC.CourtClerk@tn.gov
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:
|. Complete the enclosed form entitled: “Expedited Hearing 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.
& s
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www.tn.gov/labor-wfd/wcomp.shtml
wc.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
(List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals
Board. (List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
L) Temporary disability benefits
L) Medical benefits for current injury
L] Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer (Employee
Address:
Party’s Phone: Email:
Attorney’s Name: BPR#:
Attorney's Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: LJEmployer LJEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
lL, , certify that | have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of ,20_
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
l, , having been duly sworn according to law, make oath that
because of my poverty, | 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:
Relationship:
Relationship:
Relationship:
6. |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. | 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 $ permonth 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: j
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
{ hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | 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