INTHE COURT OFWORKERS' COMPENSATION CLAIMS AT CHATTANOOGA

DenitaHoward, Employee,


### v. USXpress Enterprises,Inc. Employer, And LibertyMutualIns. Co. Insurance Carrier. ) DocketNo.: 2014-01-0002 ) ) StateFile Number: 51504-2014 ) ) JudgeThomasWyatt ) ) )

EXPEDITEDHEARINGORDERFORMEDICALBENEFITSAND DENYINGTEMPORARYDISABILITYBENEFITS

THIS CAUSE came before the undersigned Workers' Compensation Judge upon the Request for Expedited Hearing filed on June 25, 2015, by the employee, Denita Howard, pursuant to Tennessee Code Annotated section 50-6-239 (2015). Ms. Howard presents two issues for determination in this telephonic Expedited Hearing. She seeks an order requiring the employer, USXpress Enterprises, Inc. (USX), to pay for emergency treatment she received following the alleged work injury. She also seeks temporary partial disability benefits from January 7, 2015, until February 18, 2015. Forthe reasons set forth below, the Court finds Ms. Howard is entitled to the requested medical benefits, but she is not entitledto the requested temporary partial disability benefits.
History ofClaim

Ms. Howard is a twenty-eight year-old resident ofFayetteville, North Carolina. (T.R. 1at 1.) She worked as a trainee truck driver for USX for approximately two weeks (Ex

. 7) before she suffered injury when the tractor-trailer rig she operated overturned as she exited Interstate 10 near Acadia, Louisiana. (Ex. 10 at 1, 4.) Following the abovedescribed collision, Ms. Howard received emergency care at the American Legion Hospital in Jennings, Louisiana, for multiple contusions and a closed-head injury. (Ex. 11.)

Ms. Howard later received authorized care from Med One Care in Fayetteville,

1North Carolina. (Ex. 9.) A Nurse Practitioner there referred Ms. Howard to a neurologist. !d. USX authorizedneurological carebyDr. Venugopal Gadipudi.
Following a January 7, 2015 office visit, Dr. Gadipudi completed a Final Medical Reportwherein he released Ms. Howardto regular duty onJanuary 7, 2015; placed her at maximum medical improvement as ofDecember 18, 2014; and assigned no permanent impairment for her July 1, 2014 work injury. (Exs. 16, 17.) Ms. Howard received this information at her next scheduled appointment with Dr. Gadipudi on February 18, 2015. (Ex. 8 at 2.)

USX's carrier, Liberty Mutual, terminated Ms. Howard's temporary total disability benefits onJanuary 7, 2015, pursuantto Dr. Gadipudi's release ofMs. Howard to regular duty. (Ex. 18 at 1.) Liberty Mutual paid Jefferson Davis Emergency Group $314.92 by check dated June 19, 2015 (Exs. 14 at2; 15.)
Findings ofFact and Conclusions ofLaw

GeneralLegalPrinciples

The Workers' Compensation Law shall notbe remedially or liberally construed in favor of either party but shall be construed fairly, impartially and in accordance with basic principles of statutory construction favoring neither the employee nor employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers' compensation claim has the burden ofproofon all essential elements ofa claim. Tindall

v. Waring ParkAss'n, 725 S.W.2d 935, 937 (Tenn. 1987); 1 Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element ofhis or her claim by a preponderance ofthe evidence in order to obtain relief at an expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TNWrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). At an expedited hearing, an employee has the burden to come forward with sufficient evidence from which the trial court can determinethatthe employee is likely to prevail at a hearing onthe merits. !d.

MedicalBenefits

The only medical benefit Ms. Howard sought during the Expedited Hearing was

1 The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation ofpreJuly I, 2014 statutes, that itrelied on specific statutory language no longercontained in the Workers' Compensation Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd

. LEXIS 6, *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
2payment ofthe charges ofJefferson Davis Emergency Group, LLC. (Exs. 6, 11.) USX and its carrier presented evidence documenting payment ofthe charge in question. (Exs. 14 at 2; 15; 18 at 1.) Although the payment was less than the amount billed, the adjuster for USX's carrier stated in her affidavit that the payment made to Jefferson Davis Emergency Group LLC was payment in full. (Exs. 6, 14 at 2, 15, 18 at 1.) Ms. Howard testified at the Expedited Hearing that she had not received a collection letter regarding the subject charge since the December 15, 2014 letter

. (Ex. 6.) USX and its carrier agreed to appropriately respond ifMs. Howardreceives further billing in connectionwith the subject charge.

On the basis ofthe evidence introduced at the Expedited Hearing, the Court fmds that Ms. Howard will likely prevail at a hearing on the merits on the issue of the compensability ofthe bill she incurred from Jefferson Davis Emergency Group, LLC. The Court additionally finds that USX and its carrier paid the subject charge. However, should Ms. Howard receive further bills for this charge, the Court will require that, upon Ms. Howard'spresentation ofthe bill, USX and/or its carrier shall investigate the bill and pay any valid chargeremainingunpaid. Tenn. Code Ann.§ 50-6-204 (2015).
TemporaryPartialDisabilityBenefits

In Wilkins v. Kellogg Co., 48 S.W.3d 148, 151 (Tenn. 2001), the Supreme Court defined temporary partial disability as, "the time during which the injured employee is able to resume work before reaching maximum medical improvement." (Emphasis added.) Although the above-cited authority pre-dates the July 1, 2014 reforms to the Tennessee Workers' Compensation Law, it remains good law today. See Tennessee Code Annotated section 50-6-207(2)(C) (2015), which provides that, 

### if an employerpaid temporarypartial disability benefits after the date on which a workers' compensation judge determined the injured employee attained maximum medical improvement, the employer is entitled to a credit against the employee's permanent disability award for the amount oftemporary partial disability benefits paid after the date of maximum medical improvement. (Emphasis added.)

Ms. Howard seeks additional temporary partial disability benefits betweenJanuary 7, 2015, the date USX stopped paying temporary benefits, until February 18, 2015, the date she learnedDr. Gadipudi earlierplaced her at maximum medical improvement. Ms. Howard's position is contrary to Tennessee law, which provides that the date of maximum medical improvement terminates an employee's right to temporary disability benefits.

Ms. Howard can succeed in her claim for additional temporary disability benefits only if she can establish Dr. Gadipudi's opinion is wrong or that he set the date of maximum medical improvement on a date later than January 7, 2015. Ms. Howard submitted no information that challenges the correctness of the date on which Dr.

3Gadipudi set maximum medical improvement or indicates he set maximum medical improvementon a date otherthan December 18, 2014.

The Court knows of no authority supporting the award oftemporary disability benefits after the date of maximum medical improvement simply because nobody communicated the date of maximum medical improvement to the employee. Accordingly, the fact nobody communicated Dr. Gadipudi's assessment of maximum medical improvement to Ms. Howard until February 18, 2015, is inconsequential to her entitlement to temporary partial disability benefits. In view ofthe above, the Court finds that Ms. Howard is unlikely to prevail at a hearing on the merits on the issue of her entitlementto additional temporarypartial disability benefits.

USX requests reimbursement oftemporary partial disability benefits paid after Dr. Gadipudi placed Ms. Howard at maximum medical improvement on December 18, 2014. Tennessee Code Annotated section 50-6-207(2)(C) (2015) provides, "[t]he employer shall be given credit against an award of permanent disability for any amount oftemporary partial disability paidto the employee afterthe date on which the workers' compensation judge determines maximum medical improvement." (Emphasis added.) Section 50-6-207(2)(C) (2015) specifically provides that the employer's remedy for a payment of temporary partial disability benefits after the date of maximum medical improvement is a credit against the employee's permanent disability award. Accordingly, the Court defers USX's reimbursement claim until it determines Ms. Howard'srightto permanent disability benefits.

ITIS, THEREFORE, ORDERED as follows:

1. USX and/or its workers' compensation carrier, Liberty Mutual Ins. Co., shall pay the July 1, 2014 charge of Jefferson Davis Emergency Group, LLC if not previouslypaid.

2. IfMs. Howard receives future billings or collection notices in connection with the July 1, 2014 charge ofJefferson Davis Emergency Group, LLC, she shall provide the same to USX and/or its workers' compensation carrier, Liberty Mutual Insurance Company, and, upon receipt, USX and/or its carrier shall investigate the bill and pay any outstanding balance due or, ifthe bill is fully paid, seek to stop further billings orcollectionnotices to Ms. Howard.

3. Ms. Howard's claim for additional temporary partial disability benefits is denied
on thebasis ofcompensability.

4. This matter is set for an Initial (Scheduling) Hearing on December 16, 2015, at 9:30 a.m. EasternTime.

4ENTEREDthis the 16thday ofOctober, 2015.

# fh~**f!w/,~** JudgeThomasWyatt CourtofWorkers' Compensation Claims

Initial (Scheduling)Hearing:

A Scheduling Hearing has been set with Judge Thomas Wyatt, Court of Workers' Compensation Claims. You must call 615-741-3061 or toll-free at 855- 747-1721 to participatein theInitialHearing.

Please Note: You must call in on the scheduled date/time to participate. Failure to call in may result in a determination of the issues without yourfurther participation. All conferences are setusing CentralTime (CT).

RighttoAppeal:

Tennessee Law allows any party who disagrees with this ExpeditedHearing Order to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, youmust:

1. Completethe enclosed form entitled: "ExpeditedHearingNotice ofAppeal."

2. File the completed form with the Court Clerk within seven business days ofthe date the Workers' CompensationJudge enteredthe ExpeditedHearing Order.

3. Serve a copy ofthe ExpeditedHearingNotice ofAppeal uponthe opposingparty.

4. The appealing party is responsible for payment ofa filing fee in the amount of $75.00. Within ten calendar days after the filing ofa notice ofappeal, payment mustbe received by check, money order, or credit cardpayment. Payments canbe made in person at any Bureau office or by United States mail, hand-delivery, or other delivery service. Inthe alternative, the appealing party may file an Affidavit ofIndigency, on a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit oflndigency may be filed contemporaneously with the Notice ofAppeal ormustbe filed withinten calendar days thereafter. The Appeals Board will consider the Affidavit ofIndigency and issue an Order granting or denying the request for a waiver of the filing fee as soon thereafter as is practicable. Failure to timely pay the filing fee or file the Affidavit of

5Indigency in accordance with this section shall result in dismissal of the appeal.

5. The parties, having the responsibility of ensuring a complete record on appeal, may request, from the Court Clerk, the audio recording ofthe hearing for the purpose ofhaving a transcript prepared by a licensed court reporter and filing it with the Court Clerk within ten calendar days of the filing of the Expedited Hearing Notice ofAppeal. Alternatively, the parties may file ajoint statement of the evidence within ten calendar days of the filing of the Expedited Hearing Notice of Appeal. The statement ofthe evidence must convey a complete and accurate account of what transpired in the Court of Workers' Compensation Claims and must be approved by the workers' compensation judge before the record is submittedto the Clerkofthe Appeals Board.

6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file such position statement with the Court Clerkwithin three business days ofthe expiration ofthe time to file a transcript or statement of the evidence, specifying the issues presented for review and including any argument in support thereof. A party opposing the appeal shall file a response, if any, with the Court Clerkwithinthree business days ofthe filing ofthe appellant's position statement. All position statements pertaining to an appeal of an interlocutory order should include: (1) a statement summarizing the facts ofthe
case from the evidence admitted during the expedited hearing; (2) a statement summarizing the disposition ofthe case as a result ofthe expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an argument, citing appropriate statutes, case law, or other authority.

6CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Expedited Hearing Order DenyingAdditional Medical and Temporary DisabilityBenefitswas sentto the following recipients bythe following methods ofservice onthis the 16th day ofOctober, 2015.

Name Certified Mail DenitaHoward, SelfRepresented Employee Charles Gilbreath, Employer's Attorney Via Via Service sentto: Fax Email X denita.howard@gmailcom

X cgilbreath@noogalaw.com

, ClerkofCourt orkers' Compensation Claims WC.CourtClerk@tn.gov

7APPENDIX

Exhibits: 1. FirstReport ofInjury; 2. Signed Choice ofPhysician Form (C-42) designating U.S. HealthWorks Medical Group as authorizedtreatingphysician; 3. Medical bill ofValleyRadiology (for identification only); 4. Letter from Jeremy D. Moses/Liberty Mutual Ins. Co. to Med One Care, with handwritten notations; 5. Utilization Review correspondence; 6. Collection letter dated December 15, 2014, from Trover Solutions, Inc. to Ms. Howard concerning charge ofJeffersonDavis Emergency Group, LLC; 7. Records ofwagespaidMs. HowardbyUSX; 8. Appointment card documenting Ms. Howard's February 18, 2015 appointment withDr. Venugopal Galipudi at CarolinaNeurology; 9. Status Report documentingNovember 18, 2014 visitto Med One Care; 10. State ofLouisianaUniformMotorVehicle Traffic CrashReport; 11.Medical Record documenting July 1, 2014 emergency visit at Jennings American LegionHospital, Jennings, Louisiana; 12.February 12, 2014 letter from the Division of Workers' Compensation to Ms. Howard; 13.FinalMedical Report ofNursePractitionerS. McDonald datedJanuary 6, 2015; 14.Medical Cost Summary List documenting workers' compensation payments in the claim ofDenitaHoward; 15.Liberty Mutual check documenting payment to Jefferson Davis Emergency Medical Group; 16.FinalMedicalReport ofDr. Gadipudi datedJanuary 7, 2015; 17.January 6, 2015 letter from Dr. Gadipudi; and 18.Affidavit ofAmandaDeGeeter.

Technical record:i 1. Petition for BenefitDetermination, filed March 19, 2015; 2. Show Cause Order, filed July 16, 2015; 3. Requestfor Expedited Hearing filed June 25, 2015; 4. Defendants' Objection to the Setting of Ms. Howard's Expedited Hearing and Request for Relief Therefrom; Request for In-Person Hearing, filed August 17, 2015; 5. Ms. Howard'sPosition Statement, filed August 28, 2015; and 6. Order Scheduling TelephonicExpeditedHearing, filed September 16,2015.

i The Court did not consider attachments to Technical Record filings unless admitted into evidence during the Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as allegations unless establishedby the evidence.

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