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

BRADLEY PAINTER , ) Docket N umber: 2023

- 02

- 8127

Employee, )

v. ) AMERICAN MECHANICAL CONTRACTORS INCORPORATED ,

Employer, ) ) ) State File Number: 60711

- 2023

and BUILDERS MUTUAL INSURANCE COMPANY , Carrier. ) ) ) ) Judge Brian K. Addington

EXPEDITED HEARING ORDER DECISION ON THE RECORD

American Mechanical filed a P etition for Benefit Determination and a Motion to Stay Enforcement of Medical Director Order authorizing a right

- shoulder surgery

. The court stayed enforcement of that order to allow American Mechanical to take the deposition of Mr. Painter’s authorized treating physician

.
After the deposition

, the parties agreed to a decision on the record

. For the reasons below, the Court finds Mr. Painter is entitled to the right shoulder surgery.

Claim History

Mr. Painter alleged an injur y to his right shoulder on July 27, 2023

, while working for American Mechanical

. The a uthorized treating physician, Dr. Jeffrey France

, ordered shoulder surgery on September 22. American Mechanical submitted the order for utilization review, and the reviewing physician did not certify the surgery. Dr. France appealed the denial to the Bureau’s Medical Director, who approved the surgery on November 13. 

### FILED Mar 18, 2024 10:32 AM(CT)
TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS2

On November 20

, American Mechanical filed the petition and the Motion to Stay because it “dispute [d] causation and compensability of employee’s right shoulder symptoms based on the MRI findings and contradicting physical examination performed by Dr. France

. ”

American Mechanical later depos ed Dr. France

, during which he primarily related Mr. Painter’s injury and need for right shoulder surgery to his work at American Mechanical

.
Findings of Fact and Conclusions of Law

Mr. Painter must prove he is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50

- 6

- 239(d)(1) (2023); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at * 7

- 8, 9 (Mar. 27, 2015).

The issue is whether Mr. Painter is entitled to the surgery ordered for his right shoulder. American Mechanical must furnish Mr. Painter reasonable and necessary medical benefits from his work injury. Tenn. Code. Ann. § 50

- 6

- 204(a)(1)(A). Dr. France ’s right shoulder surgery recommendation is considered medically necessary under

s ection 50

- 6

- 204(a)(3)(H)

, and American Mechanical has the burden of rebutting this presumption.

American Mechanical relied on the u tilization r eview report, in which the docto r recommended physical therapy and injections instead of the surgery. However, Dr. France appealed the decision

, and the Bureau’s medical director approved the surgery

. After the C ourt stayed the medical director’s decision, the parties deposed Dr. Franc e’s

, and he primarily related Mr. Painter’s right

- shoulder condition and the need for surgery to his work

.
Dr. France confirmed that the injury and need for surgery is primarily related to Mr. Painter’s work, so American Mechanical

, by standing on the utilization review report alone

, did not overcome the presumption that the surgery is medically necessary. Also,

c onsidering the facts and the law, Tennessee law generally concludes that the physician having greater contact with an inj ured employee has a more accurate opinion. Bass v. Home Depot U.S.A., Inc

. , 2017 TN Wrk. Comp. App. Bd. LEXIS 36, at * 14 (May 26, 2017). Therefore, t he Court finds Dr. France’s opinion along with the medical director ’ s opinion more persua sive than the uti lization review physician ’s

.
Thus, the Court holds Mr. Painter is likely to prevail at a hearing on the merits i n proving his entitlement to the surgery Dr. France recommended

.
IT IS, THEREFORE ORDERED as follows:3

1. American Mechanical shall approve and provide the right shoulder surgery as ordered by Dr. France. American Mechanical shall inform Mr. Painter of the date of the surgery.

2. Th e parties shall appear for a S tatus H earing on April 24, 20024 , at 2:00 p.m. Eastern. You must call 855

- 543

- 5044 to participate in the hearing. Failure to call in may result in a determination of the issues without your further participation.

3. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance with this o rder must occur no later than seven business days from the date of the entry of this o rder as required by Tennessee Code Annotated section 50

- 6

- 239(d)(3). The insur er or self

- insured employer must submit confirmation of compliance by email to WCCompliance.Program@tn.gov by the compliance deadline. Failure to do so may result in a penalty assessment for non

- compliance.

4. For compliance questions, please contact the Workers’ Compensation Compliance Unit by email at WCCompliance.Program@tn.gov

.

Ente red March 18 , 2024.

________ ______________________________ BRIAN K. ADDINGTON , JUDGE Court of Workers’ Compensation Claims

APPENDIX

Exhibits : 1. Utilization Review report 2. Medical Director’s decision 3. Causation opinion questionnaire by Dr. France 4. Occupational Medicine Clinic Visit 5. Medical Care Radiology 6. Watauga Orthopaedics 7. Deposition of Dr. Jeffrey France 8. Rule 72 Declaration of Stanley Arnold 9. Statement by Stanley Arnold 10. Photo (elevator) 11. Photo (scales) 12. Deposition of Bradley Painter

Technical Record: 1. Petition for Benefit Determination4

2. Dispute Certification Notice 3. Request for Stay of Enforcement of Medical Director’s Order 4. Order Granting Motion to Stay and Scheduling Expedited Hearing 5. Employer’s Witness and Exhibit List 6. Employer’s Expe dited Hearing Brief

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent on March 18 , 20 2 4

.

Name Certified

Mail Fax Email Service sent to:

Daniel Minor

, Employee ’s Attorney X dan@danielbminor.com maria@danielbminor.com Jeffery Foster

, Employer’s Attorney X jfoster@morganakins.com jtallent@morganakins.com Jaime Weatherly, Mediator X jaime.weatherly@tn.gov

______________________________________ PENNY SHRUM, COURT CLERK wc.courtclerk@tn.govFor self

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

- 332

- 2667. Right to Appeal : If you disagree with th e Court’s 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 before the expiration of the deadline.  If the order being appealed is “ e xpedited” (also called “interlocutory”)

, or if the order does not dispose of the case in its entirety, the notice of appeal must be filed within seven (7) business days of the date the order was filed.  If the order being appealed is a “Compensation Order, ” or if it resolves all issues in the case, the notice of appeal must be filed within thirty (30) calendar days of the date the C ompensation O rder was filed. Wh en filing the Notice of Appeal, you must serve a copy on 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. If no court reporter was present at the hearing, y ou may r equest from the C ourt C lerk the audio recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your appeal, which the Appeals Board has emphasized is important for a meaningful review of the case, a licensed court reporter must prepare the transcript

, and you must file it with the C ourt C lerk

. The Court Clerk will prepare the record for submission to the Appeal s Board, and you will receive notice once it has been submitted. For deadlines related to the filing of transcripts, statements of the evidence, and briefs on appeal , see the applicable rules on the Bureau’s website at https://www.tn.gov/wcappealsboard . (Click the “Read Rules” button.)

4. After the Workers’ 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.
If neither party timely files an appeal with the Appeals Board, the Court Order becomes enforceable

. See Tenn. Code Ann. § 50

- 6

- 239(d)(3) (expedited/interlocutory orders) and Tenn. Code Ann. § 50

- 6

- 239(c)(7) (compensation orders)

.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]