# FILED December 4, 2000 Cecil Crowson, Jr. Appellate Court Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON

DEBRA MICH ELLE LAMBERT, ) FOR PUBLICATION ) Filed: June 2, 1997 Plaintiff-Appellee, ) ) Hon. Wyeth Chandler, v. ) Judge ) FAMOUS HOSPITALITY, INC. , ) Shelby Circuit a/k/a A.S. HOSPITALITY a/k/a ) M W M DEXTER, INC. and ) No. 02S01-9511-CV-00112 AMERICAN M OTORIST ) INSURANCE COMPANY, ) ) Defendants-Appellants. )

For Plaintiff-Appellee : For Defendants-Appellants : Joseph Michael Cook Carol Mills Hay den Memphis, TN Memphis, TN



## OPINION

JUDGMENT OF TRIAL COURT DROWOTA, J. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.2 In this workers’ com pensation action, the employer, Famou s Hospita lity, Inc., defendant-appellant, has appeale d from a judgment of the Cir cuit Court of Shelby County fi nding that the employee, Debr a Lambert, plaintiff-appellee, sustained a 60 perce nt perma nent imp airment to the whol e body d ue to a workrel ated shoulder injury. The tr ial court also directed the employer to pay v arious medical and litigation related expenses incurred by the employee, but did not require the employer to pay for future medical treatment by doctors that had been sel ected bythe employee and who had tr eated he r before trial. The Special W orkers’ Compensation Appeals Panel , upon refere nce for findi ngs of fact and conclusions of law pursuant to Tenn. Code Ann. § 50-6- 225(e)(5) , affirmed the trial court. Thereafter, the employer filed a motion for full Court review of the Panel’s decision pursuantto Tenn. Code A nn. §50-6-225(e)(5)(B).We granted the motion to determine whether

the employee should have been auth orized to seek future medical treatment, at the employer’s expense, from doctors selected by her who had treated her injuries. After carefully examining the record before us and considering the relevant authorities, we affirm the tr ial court’s judgment

except to the extent that the judgmentdoes not authorize future medic al treatment by the employee’ s treating physicians at the employ er’s expense.

The employee was 28 y ears old at the time of trial a nd possessed a high school diploma. Sh e has completed one year of college. Her prior work experience consisted of working as a gas station attendant, convenient store worker, cashier, and performi ng h eavy factory work. The emplo yee had worked for the employer

in t his case, a printing company, for approximately nine months as a machine operator when, on May 25, 1992, she injured her left shoulder as she was pul ling a d olly out from under some heavy boxes. The employee immediately reported the injury to her supervisor. Ac cording to the employee, the supervisor responded with laughter and said “you’ll be alright.”

Although the emp loyee promptly rep orted her injury to the employer, the3

employer

did not provide the employee with a list of three physicians as r equired by Tenn. Code Ann. § 50-6-204(a)(4) from which she could selec t for medical treatment. Accordin gly, the employee consulted the e mp loyer’s group medical insurance handbook

and selected Dr. Dan Halfor d, who treated her shoulder injury conservatively

and then referred her to Dr. E . B. Wilkins on of the M emphis O rthopedic Group. Dr. Wilkinson also treated the emp loyee’s should er injur y conservat ively. He then sent her to another physician, Dr. Mark Harriman, because
s he was not improving. At the time the employee began seeing Dr. Harriman, a n orthopedic surgeon, she was hav ing difficulty moving

her left shoulder and was unable to lift her left arm. Dr. Harriman performed corr ective s urgery on the employee’s left shoulder, and subsequently performed a second surgery to re move scar tissue. Dr . Harrima n dischar ged the em ploye e after sh e underwent several weeks of physical therapy. Although shecontinued to complain of severe pain and had considerable difficulty lifting, Dr. Harriman believed that there was nothing more he could do for her. H e concluded t hat the employee had sustained a 7 percent permanent anatomical impairment to the body as a whole . The employer paid all medical costs associated with the care and treatment of the employee render ed by Doctors Halford, Wilkinson, and Harr iman.

After h er re lease by Dr. Harri man, the employee was stil l having considerable problems with her left s houlder, arm and hand. On July 13, 1993, she soughttreatmentfrom Dr. Tewfik Rizk, who specializes in chronic shoulder disorders. Dr. Rizk recommended a series of tests, but the employe r refused to p ay for them. When the tests were complet e in March , 1994, at the employee’s ex pense, they showed that she had thoracic outlet s yndrome. Dr. Rizk described thoracic outlet syndrome

as a compression of the nerves and arteries from the neck leading to the shoulder. He testified that this condition was caused by the employee’s work-r

elated accidenton May 25, 1992. Dr. R izk then referred the employ ee to Dr. Jacob Rosensweig for consultation. Dr. Ros ensweig, a cardiov

ascular and t horac ic surgeon, confirmed the diagnosis of th oracic outlet syndrome an d performed4

cor re ctive surgery. Follow ing this surgery , the employee developed “r eflex sympathetic dystrophy,” a complication of surgery affecting the nervous sy stem. Dr. Rizk prescribed medicationand recommended nerve blocks w hich the employee was unable to afford. He assessed a 36 percent permanen t partial impairment to the whole body, and opined that one thir d of pati e nts with the employee’s diagnosis
never regain the use of their h and. Anoth er one third of patients have pain, numbne ss and a burning sensation “for years and years and years.” Dr. Ri zk als o opined that the employee might need further surgery and was limited to finding work requiringuse of only one arm. He stated that the em ployee was s till in need of medical care.

At trial, the court found that the employee had sustained a 60 percent permanent vocational disabi lity to the body as a whole. Also, the cour t directed the employer

to pay most of the employee’s expenses as sociated with her trea

tment under Dr. Rizk and Dr. Rosensweig. However, the court did not require the employer to pay for future treatment by eit her of these p hysicians. Althou gh the trial judge required the employer to provide the employee with a list of physicians from which the employee could choose future tre atment, neither Dr. Rizk nor Dr. Rosensweig
was on this list. The court’ s order stated in part that “if for any reason the serv ices of any such doctor [onthe list] shou ld prove un satisfa ctory, [th e employe e] shall h ave the right to pet itio n the court for further revi ew of her future medical care an d management.” The Special Workers’ Compensation Appeals Panel affirmed the trial court’s ruling. We have carefully considered and agree with the resolu ti on of all issues made by the trial court and Special Panel, except for the one dealing with the employee’s continued treatment by Doctors Rizk and Rosensweig.

The only meritorious is sue before us is whether the employ ee is entitled to reimbursement

for post- trial medical expenses for continued treatment by Doctors Rizk and Rosensweig. The per tinent statute, Tenn. Code Ann

. § 50-6-204(a)(4), states that “[t]he injured empl oyee shall accept the medical b enefits afforded5

hereunder; provided, that the employer shall designate a group of three (3) or more reputable physicians or surgeons not associated together in practice

. . . from which the injured employee shall have the pr i vilege of selecting the operating surgeon or the attending physician . . . .” Tenn. Code Ann. § 50-6-204(a)(4). This statute plainly givesan employer the right to designate three physicians from w hich the employee is entitled to make a f inal selection. However, once an employee has “justifiably engaged a doctor on his own initiativ e, a belated attempt by the employer to offer a doctor c hosen by

the empl oyer will not

cut off the right of

the employee to continue with the employee’s doctor.” Goodman v. Oliver Springs Mining Co., Inc. , 595 S.W.2d 805, 808 (Tenn. 1980 ) ( quoting 2 Larson, Workers’ Compensation Law , Section 61.12(d)(3) (1992) ).

In this case, the employer did notprovide the employee w ith the list of doctors as required by Ten n. Code Ann . § 50-6-204(a)(4) until the trial. (And as note d above, one of the physicians on the list was Dr.Harriman, who had alread y released the employee because he could do nothi ng more for her.) Having largely lost control of the employee’s medical care by failing to provide the list of physicians
as required by Tenn. Code An n. § 50-6-204(a)(4), the employ er may not now

seek to regain control by i

ts belated attempt at compliance. This conclusion is supported byour decision in Goo dman v. Oliver Springs Mining Co, Inc. , 595 S.W.2d 805 (Tenn. 1980). In that c ase, we held an employer liable for continuing medic al expenses incurred by the employ ee after trial due

to the employer’s failure to comply with Tenn. Code Ann. § 50-6-20 4(a)(4). We explained that [t]he defendants have asserted no basis fortheirdesire that the plaintiff change phy sicians other than their contention that it is their statu tory pr ivilege. In fact, a change in physicians would only cause the defendants to sufferunnecessary expense and cause the plaintiff to sufferadditional hardship. Therefore, the only justification that we can perce ive for the defendant’s conduct is their unwillingn e ss to pay the plaintiff’s continuing medical expens es. Goodman , 595 S.W.2d at 808-80 9. The same can be said of the ca se at bar. Accordin gly, we hold that the employee justifiably sought

treatme nt from D octors Rizk6

and Rosensweig in light of the employer’ s failure to comply wi th Tenn. Code Ann. § 50-6-204(a)(4). Requiring her to c hange doctors after leng thy a nd inten sive treatmentby these physicians - most notably Dr. Rizk - would place an unnecessary bur den upon h er that we are not prepar ed to impose. We thus conclude that the employer

is liable for the post-tr

ial medical expenses of the employee resulting from her continued treatment by Doct ors Rizk and Rosenswei g.7 For the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part, and the case remanded for any further proceedings which may be necessary. Costs on appeal are taxed to the defendants-app ellants.

_______ ___________

_______________

_ Frank F. Drowota, II I Justice
Concur: Birch, C.J., Holder, Anderson, JJ., Reid, J., Not Particip

ating