TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT JACKSON

BETTY TIPTON

, ) Docket No. 2018

- 07

- 0202

Employee, )

v. )

DYNAMETAL TECHNOLOGIES

, ) State File No. 86668

- 2016

Employer

, And ACCIDENT FUND INS. COMPANY,

Carrier. ) ) ) ) Judge Joshua Davis Baker

COMPENSATION HEARING ORDER

The Court held a compensation hearing on October 20, 2022, to consider Ms. Vaulx’s request for a new panel of physicians

. 1 Dynametal opposed the request

, arguing that it has provided all medical care required by this Court’s earlier ruling

. The Court agrees and denies her request for a panel of physicians

.

History of Claim

Ms. Vaulx, who went by her maiden name Tipton then , hurt her back while working for Dynametal. After a compensation hearing, the Court awarded permanent disability benefits as well as continuing medical care with Dr. James Brophy, the au thorized treating physician. 2 The Court relied on the opinion of a non

- treating physician to award benefits rather than Dr. Brophy

, who had assigned Ms. Vaulx no permanent impairment.

1 Ms. Vaulx filed a request for expedited hearing to determine this post

- judgment medical dispute. At the

he aring, the parties agreed that this should have been a request for compensation hearing and agreed to have the case determined under the standard of proof applicable to that proceeding.

2 Ms. Vaulx testified she did not select Dr. Brophy from a panel. Because the Court in its previous order

determined that she did

, and the order was not appealed, this issue is not subject to review

. 

### FILED Oct 31, 2022 12:41 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS2

Ms. Vaulx saw Dr. Brophy only once before going to her primary care physician for treatment and paying those expenses out of pocket. She did not request further treatment from Dr. Brophy before treating with her personal physician.

At about the same ti me she saw her pri mary care p hy sician , Ms. Vaulx f iled a request for a new doctor. She claimed she needs a new doctor because Dr. Brophy does not believe she needs additional treatment. It was evident from her testimony that she disagrees with Dr. Brophy’s opinion about her treatment n eeds

. Also, she and her husband both testified she still suffers from her injury and that the associated pain interferes with her ability to conduct her da ily activities.

Ms. Vaulx filed a letter from Dr. Emmanuel Obi concerning treatment:

Dynametal argued that it offered Ms. Vaulx treatment with Dr. Brophy as required by the Court’s order

, but she d e clined . Further, Dynametal maintained Ms. Vaulx can

return to Dr. Brophy and is not entitled to a new panel of physicians.

Findings of Fact and Conclusions of Law

The only issue in this compensation hearing is whether Dynametal must provide Ms. Vaulx a new panel of doctors

. Scott v. Integrity Staffing Sol utions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 ( Aug. 18, 2015). Ms. Vaulx must prove her entitlement to a new panel of doctors by a preponderance of the evidence. Tenn. Code Ann. § 50

- 6

- 239(c)(6) (20 22 ) (“[T]he employee shall bear the burden of proving each and every element of the claim by a preponderance of the evidence.”). She did not carry this burden.

T he Workers’ Compensation Law requires an injured employee “to accept the medical benefits” provided by the employer

, which includ es a panel of “three or more independent reputable physicians . . . from which the employee shall select one to be the treating physician.” Tenn. Code Ann. § 50

- 6

- 204(3)(A)(i)

. Once selected, that physician is the authorized treating physician unt il the physician declines to continue treating the employee

. Limberakis v. Pro

- Tech Sec

. , Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 53,

at *8

- 10 (Sept. 12, 2017) . The employer may also voluntarily provide a new panel of physicians.3

N either situation occurred in Ms. Vaulx’s case. Ms

. Vaulx offered no evid en c e that Dr. Brophy has decl ined to see her. And, Dynametal refused to provide a new panel.

In support of her position, Ms. Vaulx offered the letter from Dr. Obi. His letter does not sway the Court’s opinion for several reasons. First, while the letter details treatment he provided, it does not state that Dynametal declined to provide this treatment through Dr. Brophy. Second, the letter does not prove that the treatment outlined in the letter is reasonable and necessary for treatment of her work injury. Finally, the letter, although agreed upon by the parties as admissible in this hearing, does not meet required standards for a judge’s consideration at a compensation hearing

, as it is neither deposition testimony

nor included in a fo rm C

- 3 2. Tenn. Code Ann. § 50

- 6

- 235 (allowing admission of a doctor’s testimony on this form in stead of a deposition.).

In sum, Ms. Vaulx has not carr ied her burden of proving her entitlement to a new panel of physicians

.

IT IS, THEREFORE, ORDERED as follows:

1. Ms. Vaulx’s request for a new panel of doctors is denied.

2. The Court assesses the $150.00 filing fee against Dynametal , for which execution might issue as necessary. Dynametal shall pay the filing fee to the Clerk within five business days of this order becoming final.

3. Unless appealed, this order shall become final thirty days after issuance.

ENTERED October 31 , 2022

.

____________________________________ Judge Joshua Davis Baker

Court of Workers’ Compensation Claims4 A PPENDIX

Exhibits :

1. Ms. Vaulx’s Rule 72 Declaration

2. Medical Records filed October 3, 2022

3. Dr. Emmanuel Obi letter

4. Compensation order dated February 15, 2019

Technical record :

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Order to Show Cause

4. Request for Expedited Hearing

5. Employer’s Motion for an Evidentiary Hearing5 CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on October 31 , 2022

.

Name Certified

Mail First

Class

Mail Via

Email Service sent to:

Betty Tipton Vaulx, Employee X 1080 Wallace Rd. Apt, 5 Jackson, TN 38305 stevenvaulx@gmail.com Gordon Aulgur

, Employer’s Attorney X gordon.aulgur@accidentfund.com

_____________________________________ Penny Shrum, Clerk Court of Workers' Compensation Claims WC.CourtClerk@tn.govFor self

- represented litigants: Help from an Ombudsman is available at 800

- 332

- 2667. Compensation Order Right to Appeal :

If you disagree with this Compensation Order, you may appeal to the Workers’ Compensation Appeals Board. To do so, you must:

1. Complete the enclosed form entitled “Notice of Appeal” and f ile it with the Clerk of the Court of Workers’ Compensation Claims wi thin thirty calendar days of the date the

C ompensation O rder was filed. When filing the Notice of Appeal, you must serve a copy upon the opposing party (or attorney

, if represented).

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar days after filing 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 al ternative, you may file an Affidavit of Indigency (form available on the Bureau’s website or any Bureau office) seeking a waiver of the filing fee. You must file the fully

- completed Affidavit of Indigency within ten calendar days of filing the Notice of A ppeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will result in dismissal of your appeal.

3. You are responsible for ensuring a complete record is presented on appeal. The Court Clerk will prepare the technical record and exhi bits for submission to the Appeals Board, and you

will receive notice once it has been submitted. If no court reporter was present at the hearing,

y ou may request from the C ourt C lerk the audio recording of the hearing for a $25.00 fee.

A licensed court reporter must prepare a transcript

, and you must file it with the C ourt C lerk within fifteen calendar days of filing the Notice of Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both parties within fifteen calend ar days of filing the Notice of Appeal. The statement of the evidence must convey a complete and

accurate account of the testimony presented at the hearing. The Workers’ Compensation Judge must approve the statement of the evidence before the record is s ubmitted to the Appeals Board. If the Appeals Board must 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. After the Worke rs’ Compensation Judge approves the record and the C ourt C lerk transmits it to the Appeals Board, a docketing notice will be sent to the parties. You ha ve fifteen calendar days after the date of that notice to file a brief to the Appeals Board. See the R ules governing the Workers’ Compensation Appeals Board on the Bureau’s website

If neither party timely files an appeal with the Appeals Board, the trial court’s Order will become final by operation of law thirty calendar days after entry. Tenn. Code Ann. § 50

- 6

- 239(c)(7).