1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT MEMPHIS

JAMES HAWES , ) Docket No. 20 2 1

- 0 8

- 1 0 17 Employee, )

v. ) ) ) State File No. 2742

- 2021

M cLANE CO. , INC. , ) E mployer

. ) Judge Allen Phillips

EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS

This case came before the Court for an Expedited H earing on May 1 0 , 202 1 . 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 penalt y for wrongful denial. McLane asserted that the injury did not arise out of the employment

. For the following reasons, t he Court holds Mr. Hawes is entitled to a panel of physicians . The Cou r t reserves the issue s of attorney’s fees and penalties for later determination

. History of Claim

On December 8

, 2020, M r

. Hawes felt back pain when lifting a box. He immediately reported the in cident

, and McLane completed a First Report of Work Injury

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

. A report from that call documents the history of injury and Mr. Hawes’s symptoms. It also included a nota t ion that Mr. Hawes was not refer red t o “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 . I t conclude d 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 th e report, Dr. Naiyer Imam said Mr. Hawe s 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

CLAIMS2

examination was conduc ted using EFA guided technology.” In an “EFA Summary,” h e 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 baselin e 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 a n “Electrodiagnostic Functional Assessment Repo rt ” also dated December 11. That report was signed by Dr. MaryRose Reaston, PhD. a nd Dr. Clay Everline, MD. The report beg an with a “Brief explanation [sic] of Evaluation” that read as follows:

The E lectrodiagn ostic F unctional A ssessment (EFA) is designed to e valuate 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 t o 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 Dece mber 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. Reas t on and Everline agreed that the EFA demonstrated no acute pathology or change in condition from the baseline
test . Thus, they c oncluded 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 throu gh 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 a t 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 determin e if an injury caused change in neuromuscular function, indicating the presence or absen ce 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”3

actually place the electrodes on the examinee but the test is orde red 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 emplo yees have not sustained an injury . Further, s he 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

. H e 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 do ctor. 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 t he course and scope of employment.”

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

. He stated he suffered ongoing back pain tha t prevented him from working. H is counsel forcefully argued that Emerge marketed the testing as a means for employers to avoid the ir statutory duty to provide medical benefits . He called EFA

, “advocacy d ressed up as science” and

c ounsel claimed his “

job is to k ill this in the crib ” and “ send a clear message that this is not how it’s done i n 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. Be caus e the EFA showed no injury, McLane argued it ha d 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, r eferring 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). Ins tead, 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 employ ee may select one for treatment. (Emphasis added). The emphasized word

, “shall

, ” is plain and unambiguou s; an employer is required by statute to provide a4

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 un ambiguous)

. 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. B ecause the EFA showed Mr. Hawes did no t sustain an injury

, McLane contended it was not required to pro vide a panel

. The Court disagrees. Mc Lane obtained the EFA by failing to comply with the statute when it refer r ed Mr. Hawes to a single physician , thus usurp ing his privil ege 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

. I nstead

, he must show he would likely prevail at a hearing on the merits

. Tennessee Code Annotated section 50

- 6

- 239(d)(1) (20 20). 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 h er 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 support ing 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 penalt y referral

Mr. Hawes ’ s a ttorney 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 se ction 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 penal ized for wrongful denial of the claim. Tennessee Code Annotated section 50

- 6

- 118 provides p enalties for certain action s or inaction s 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 statut ory requirements. Further, Tennessee5

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. Mc Lane shall provide Mr. Hawes a panel of physic ians 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 penal ty 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. Th e Court sets a Status Hearing on Monday, July 26 , 202 1 , at 10 : 3 0 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 i s 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 complian ce 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 com pliance 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 2 8 , 20 2 1

.

______________________________________ J UDGE A LLEN P HILLIPS Court of W orkers’ Compensation Claims6 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 A llow Expedited Hearing Testimony by Telephone 5. Order Granting Motion to Allow Tele phone Testimony

C ERTIFICATE OF SERVICE

I certify that a copy of this Order w as sent as indicated on May 2 8 , 20 2 1

.
Name Via Email Service Sent To:

Jo nath a n 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.govFor 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 f ile 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 B ureau 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

complete d 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 busine ss 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 Appe als 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 mu st 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 sta tement. 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’ Co mpensation 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 fil ed 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: _______________________________________________________

_ Ph one: ___________________ Email: __________________________________________________________ Attorney’s Na me:

_____________________________________________ _ BPR#: _______________________ Attorney’s E mail: _____________________________________________

_ Phone: _______________________ Attorney’s Ad dress:

_________________________________________________________________________ * 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 App ellee’s Address:

_____________________________________________ _ Phone:

_ ___________________ Email: _________________________________________________________ Attorney’s Na me:

_____________________________________________ B PR#: ________________________ Attorney’s E mail: _____________________________________________ Phone:

_______________________ Attorney’s Ad dress:

_________________________________________________________________________ * 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]