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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MEMPHIS

JAMES HAWES, ) Docket No. 2021-08-1017

Employee, )

v.

)

)

)

State File No. 2742-2021

McLANE CO., INC., )

Employer. ) Judge Allen Phillips

EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS

This case came before the Court for an Expedited Hearing on May 10, 2021. Mr. 

Hawes requested an order compelling McLane to provide him a panel of physicians for a 

back injury. He also requested attorney’s fees and a penalty for wrongful denial. McLane 

asserted that the injury did not arise out of the employment. For the following reasons, the 

Court holds Mr. Hawes is entitled to a panel of physicians. The Court reserves the issues

of attorney’s fees and penalties for later determination. 

History of Claim

On December 8, 2020, Mr. Hawes felt back pain when lifting a box. He immediately

reported the incident, and McLane completed a First Report of Work Injury.

Later that day, McLane arranged a telephone “triage call” with Emerge Diagnostic.

A report from that call documents the history of injury and Mr. Hawes’s symptoms. It also 

included a notation that Mr. Hawes was not referred to “in-person care,” but instead was 

referred for an “EFA test.” The report is not clear as to who spoke with Mr. Hawes or who 

completed the report. It concluded with: “no answer calling Dr. Badii.”

On December 11, McLane arranged a “Telemedicine Visit” with FMCA-PA, 

located in Hollis, New York according to a written report. In the report, Dr. Naiyer Imam 

said Mr. Hawes had normal range of motion of his back. The doctor then said, “[a] physical 

FILED

May 28, 2021

09:34 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
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examination was conducted using EFA guided technology.” In an “EFA Summary,” he 

stated that “both evaluations demonstrated chronic changes” and “inappropriate muscle 

usage.” Dr. Imam concluded: “The EFA findings concur with my examination. Based on 

the comparison of the baseline EFA and today’s EFA there was no acute pathology or 

change in condition. Therefore there does not appear to be a need for treatment on an 

industrial basis.”

Dr. Imam’s findings regarding the EFA were incorporated in an “Electrodiagnostic 

Functional Assessment Report” also dated December 11. That report was signed by Dr. 

MaryRose Reaston, PhD. and Dr. Clay Everline, MD. The report began with a “Brief 

explanation [sic] of Evaluation” that read as follows:

The Electrodiagnostic Functional Assessment (EFA) is designed to evaluate 

the functional capacity of the musculoskeletal system. The EFA is a modality 

that gives the diagnostician an opportunity to monitor the voluntary and 

involuntary responses of muscle groups in direct correlation with the 

patient’s range of motion . . . The EFA-STM Program allows for comparison 

of the baseline test with the second test to determine acute pathology or 

change in condition.

The report documented that Mr. Hawes underwent a “baseline test” (EFA) on 

August 21, 2020, when McLane hired him, and the second EFA on December 11. The 

report stated that, “comparisons were made to the baseline to determine changes, if any.” 

Based on the findings of the second EFA ̶the appearance of chronic changes and 

inappropriate muscle usage documented by Dr. Imam ̶Drs. Reaston and Everline agreed 

that the EFA demonstrated no acute pathology or change in condition from the baseline 

test. Thus, they concluded that Mr. Hawes needed no treatment “on an industrial basis.” 

They did note that, “[c]linical correlation and screening for any contraindications to 

suggested treatment modalities is recommended.”

At the hearing, Dr. Reaston detailed her qualifications, explaining she held 

Bachelors, Masters and Doctoral degrees in psychology. She also obtained a certificate in 

electromyography and clinical neurophysiology after completing a three-month course 

through Harvard Medical School. She and her husband founded Emerge Diagnostic, and 

they hold patents on several of the technologies used in EFA testing. The company has 

numerous clients who use the testing, many of which, like McLane, utilize the EFA 

protocol at the time an employee is hired to establish a “baseline” of neuromuscular 

function. That baseline testing might be used for comparison to a post-injury EFA to 

determine if an injury caused change in neuromuscular function, indicating the presence or 

absence of injury.

Dr. Reaston explained that EFA testing is superior to traditional electromyography,

in that it tests a wider spectrum of neuromuscular functions. She said “medical personnel” 
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actually place the electrodes on the examinee but the test is ordered by a medical doctor. 

She said the error rate of baseline and post-injury testing is “+/- 5%.”

On cross-examination, Dr. Reaston admitted that Drs. Imam and Everline are not 

located in Tennessee and both are affiliated with Emerge. She admitted to marketing

Emerge by emphasizing to employers that EFA reveals a significant percentage of 

employees have not sustained an injury. Further, she appears in court at no additional 

charge to defend EFA test results. 

For his part, Mr. Hawes explained that he was directed to participate in the EFA 

test. He did not know the identity of the technician who actually placed electrodes on his 

body. The EFA performed when McLane hired him was similarly conducted, and it too 

was performed in the absence of a medical doctor. Mr. Hawes said no one told him of the 

EFA results until after he learned his claim was denied. McLane denied the claim as 

documented in a Notice of Denial (Form C-23) on January 14, 2021, stating as the basis, 

“no injury arose out of or occurred in the course and scope of employment.”

Based on this evidence, Mr. Hawes asked for a panel of physicians. He stated he 

suffered ongoing back pain that prevented him from working. His counsel forcefully 

argued that Emerge marketed the testing as a means for employers to avoid their statutory 

duty to provide medical benefits. He called EFA, “advocacy dressed up as science” and 

counsel claimed his “job is to kill this in the crib” and “send a clear message that this is not 

how it’s done in Tennessee.” However, counsel conceded that the science of EFA testing 

was ultimately not the issue, but rather whether McLane was obligated to provide a panel.

McLane contended that the issue was not one of policy, but instead argued the focus 

should be whether Mr. Hawes’s injury arose out of his employment. Because the EFA 

showed no injury, McLane argued it had a valid defense and was not required to provide a 

panel.

Findings of Fact and Conclusions of Law

Panel of physicians

Under Tennessee Code Annotated section 50-6-204(a)(1)(A), an employer must 

furnish medical treatment made reasonably necessary by an injury. However, referring an

employee to a single physician does not comply with the statute. Ducros v. Metro Roofing 

and Metal Supply Co., Inc., 2017 TN Wrk Comp App Bd LEXIS 62, at *10 (Oct. 17, 2017),

citing Employers Ins. of Wausau v. Carter, 522 S.W.2d 174, 176 (Tenn. 1975). Instead, 

section 204(a)(3)(A)(i) requires that when an “employee has suffered an injury and 

expressed a need for medical care, the employer shall designate” a panel of physicians

from which the employee may select one for treatment. (Emphasis added). The emphasized 

word, “shall,” is plain and unambiguous; an employer is required by statute to provide a 
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panel. See, Thomas v. Zipp Express, 2017 TN Wrk. Comp. App. Bd. LEXIS 22, at *11 n.4 

(Mar. 15, 2017) (the word “shall” is plain and unambiguous).

Here, Mr. Hawes claimed an injury, he timely reported it, and McLane did not 

contest the underlying incident. However, rather than providing a panel of physicians, 

McLane provided a telehealth evaluation with a physician of its choosing who supervised 

the performance of the EFA. Because the EFA showed Mr. Hawes did not sustain an injury,

McLane contended it was not required to provide a panel. The Court disagrees. McLane 

obtained the EFA by failing to comply with the statute when it referred Mr. Hawes to a 

single physician, thus usurping his privilege to choose one from a panel. Failure to abide 

by the law cannot form the basis of a defense.

Further, Tennessee law is clear that an employee need not prove every element of 

his claim by a preponderance of the evidence at an expedited hearing. Instead, he must 

show he would likely prevail at a hearing on the merits. Tennessee Code Annotated section 

50-6-239(d)(1) (2020). In McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. 

App. Bd. LEXIS 6, at *9 (Mar. 27, 2015), the Appeals Board explained that “a contrary 

rule would require many injured workers to seek out, obtain, and pay for a medical 

evaluation or treatment before his or her employer would have any obligation to provide 

medical benefits. The delays inherent in such an approach, not to mention the cost barrier 

for many workers, would be inconsistent with a fair, expeditious, and efficient workers' 

compensation system.”

In McCord, the Appeals Board noted that, “whether the alleged work accident 

resulted in a compensable injury [had] yet to be determined.” Nevertheless, the Board 

found the employee came forward with sufficient evidence supporting an order for a panel

when the employee established that she reported an injury and the employer offered 

nothing to rebut the occurrence. Id. at *18. The same is true here, and the Court orders 

McLane to provide Mr. Hawes a panel.

Attorney’s fees and penalty referral

Mr. Hawes’s attorney requested fees for wrongful denial under Tennessee Code 

Annotated section 50-6-226(d)(1)(B). The Court cannot award those fees because the date 

of injury is December 8, 2020, a date to which section 226(d)(1)(B) did not apply. 

Specifically, under the applicable version of section 226(d)(2), the Court might award 

attorney’s fees only for injuries that occurred between July 1, 2016 and June 20, 2020.

Counsel also requested McLane be penalized for wrongful denial of the claim. 

Tennessee Code Annotated section 50-6-118 provides penalties for certain actions or 

inactions of parties. It does not specifically provide for “wrongful denial” of a claim. 

However, under section 118(a)(12), an employer may be sanctioned for failure to timely 

provide a panel of physicians meeting the statutory requirements. Further, Tennessee 
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Compilation Rules and Regulations 0800-02-01-.06(1) (May, 2018) provides: “Following 

receipt of notice of a workplace injury and the employee expressing a need for medical 

care, an employer shall, as soon as practicable but no later than three (3) business days after 

receipt of such request, provide the employee a panel of physicians as prescribed in T.C.A. 

§ 50-6-204.” The Court finds McLane failed to do so and refers it to the Compliance 

Program for consideration of a penalty. 

IT IS, THEREFORE, ORDERED AS FOLLOWS:

1. McLane shall provide Mr. Hawes a panel of physicians under Tennessee Code 

Annotated section 50-6-204(a)(3)(A)(i).

2. The Court refers McLane to the Compliance Program for its consideration of a 

penalty under Tennessee Code Annotated section 50-6-118(12) and Tennessee 

Compilation Rules and Regulations 0800-02-01-.06(1) (May, 2018) for failure to 

timely provide a panel of physicians under law.

3. The Court denies Mr. Hawes’s request for attorney’s fees for wrongful denial at this 

time.

4. The Court sets a Status Hearing on Monday, July 26, 2021, at 10:30 a.m. Central 

Time. The parties must call 731-422-5263 or toll-free at 855-543-5038 to 

participate in the Hearing. Failure to call might result in a determination of any

issues without the party’s participation.

5. 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). 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 by email at WCCompliance.Program@tn.gov.

ENTERED May 28, 2021.

______________________________________

JUDGE ALLEN PHILLIPS

Court of Workers’ Compensation Claims
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APPENDIX

Exhibits

1. Collective Medical Records

2. First Report of Work Injury with attachments

3. Notice of Denial (C-23)

4. Dr. Reaston’s CV

5. Research Article regarding muscle activity patterns

Technical record

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

4. Employer’s Motion to Allow Expedited Hearing Testimony by Telephone

5. Order Granting Motion to Allow Telephone Testimony

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on May 28, 2021.

Name Via Email Service Sent To:

Jonathan May, 

Employee’s Attorney

X jmay@forthepeople.com

cwoods@forthepeople.com

Kyle I. Cannon, 

Employer’s Attorney

X kcannon@gwtclaw.com

Compliance Program X WCCompliance.Program@tn.gov

______________________________________

Penny Shrum, Court Clerk

Wc.courtcler@tn.gov
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

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:

1. Complete the enclosed form entitled: “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 fullycompleted 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.
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 

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 filestamped 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 2 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 *

CERTIFICATE OF SERVICE 

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]