1 

TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS 

AT MEMPHIS 

BARBARA FOULKS,

 Employee, 

v. 

ABM INDUSTRY GROUPS LLC, 

 Employer, 

And

) Docket No.: 2022-08-1051

) 

) 

) State File No.: 64828-2021 

) 

) 

INDEMNITY INSURANCE 

COMPANY OF AMERICA, 

 Carrier.

) Judge Shaterra R. Marion

) 

)

________________________________________________________________________

EXPEDITED HEARING ORDER GRANTING BENEFITS 

The Court held an Expedited Hearing on January 11, 2023, to determine whether

temporary total disability benefits should be reinstated based on the treatment Ms. Foulks 

is receiving from Dr. Michael Cody Scarbrough. The Court finds the evidence supports 

Ms. Foulks’s contention that Dr. Scarbrough’s treatment entitles her to temporary total 

disability payments, and therefore holds that she is likely to prevail at a hearing on the 

merits. 

History of Claim

The parties agreed that Ms. Foulks suffered a compensable injury to her ribs, right 

foot, and right knee on July 28, 2021, while working for ABM. She selected Dr. John 

Lochemes from a panel. 

Ms. Foulks’s care with Dr. Lochemes consisted of foot x-rays, MRIs of her knees, 

medication, and physical and massage therapy. Dr. Lochemes initially referred Ms. Foulks 

to Dr. Scarbrough in October for “consideration of blocks for the nerve pain she is having,” 

and she was again referred to Dr. Scarbrough two weeks later. However, according to his 

notes Ms. Foulks stated that she did not wish to proceed with having a block done at that 

time. Dr. Lochemes referred Ms. Foulks to Dr. Scarbrough again in December. Ms. Foulks 

had her next and final visit with Dr. Lochemes on April 26, 2022. In his notes he stated: 

FILED

Jan 31, 2023

12:27 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
2

“the symptoms she is presenting with will continue to be treated by Dr. Scarbrough.” He 

placed Ms. Foulks at maximum medical improvement from an orthopedic standpoint..

Dr. Scarbrough began seeing Ms. Foulks in December 2021. He prescribed 

medication, ordered a repeat x-ray and a bone scan of her lower right extremity, and he 

desired to enroll her in “extensive physical therapy including our IPRP setup with inclusion 

of psychiatric care.” He noted her developing decreased range of motion and concerns of 

an evolving complex regional pain syndrome.

She next visited Dr. Scarbrough in January 2022, where he stated she “never got 

full treatment for her right foot and ankle” and later developed the CRPS symptoms of 

dysesthesia, burning pain, decreased range of motion, skin changes, and swelling. He also 

noted that portions of his recommendations were denied but reiterated the need for the 

treatment, as Ms. Foulks “has significant lack of plantarflexion and dorsiflexion of the right 

foot and ankle.” He again recommended “aggressive physical therapy interventions to 

regain her overall functional status,” and noted, “I think we have lost some ground in terms 

of her overall functional capacity given the significant delay in physical therapy.”

At this visit, Dr. Scarbrough stated that Ms. Foulks was adamant about not treating 

her pain with ongoing medications or injections, and instead she wanted the aggressive 

physical therapy interventions to regain her overall functional status. 

Dr. Scarbrough expressed frustration in his notes from Ms. Foulks’s visit in March 

due to the limits on what he had been able to get approved. He stated her need for treatment 

was “desperate” and noted that she has started having “some low back discomfort 

associated with her significant gait instability from her right foot and ankle pain.” 

Ms. Foulks returned to Dr. Scarbrough in September, where he noted that she was 

able to do some physical therapy in June, but he was still recommending the “intensive 

rehabilitation program.” He stated that while she was placed at maximum medical 

improvement from an orthopedic standpoint, she was not at maximum medical 

improvement for her chronic pain, as “[w]e have yet to even begin appropriate treatment 

strategies for her findings of the right foot and ankle.” He also recommended a nurse case 

manager to discuss her care and a driver to take her to her appointments, and he reiterated 

his desire for the triple phase bone scan and the x-ray. He additionally requested a nerve 

block, as Ms. Foulks appeared ready for it. 

Dr. Scarbrough received the x-rays and bone scan he had been requesting and 

reviewed them with Ms. Foulks at her appointment in October. He requested a left foot and 

ankle x-ray study due to the increased loadbearing placed on her left side. He again 

requested the nerve block, as it had not been approved, along with the “extensive” physical 

therapy, to “correct her gait and prevent any further deterioration” in function. He also 

repeated Ms. Foulks’s need for a case manager and a driver. 
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Ms. Foulks testified that Dr. Scarbrough wanted her to return to physical therapy 

and give her a block. She additionally stated that she was on medication, but Dr. 

Scarbrough “was trying to get me to go further.” As of the date of the hearing, she had 

neither had the block nor the physical therapy. 

The parties stipulated that Ms. Foulks’s compensation rate is $374.49, and that there 

is a $16,070.07 temporary disability overpayment. 

Ms. Foulks testified that she started working part-time on December 5, 2022. She 

works 20 hours a week and makes $15 an hour. She further stated that she was off work 

for the holidays.1

Findings of Fact and Conclusions of Law

At this Expedited Hearing, Ms. Foulks must show she would likely prevail at a 

hearing on the merits regarding her request for temporary total disability benefits. Tenn. 

Code Ann. § 50-6-239(d)(1) (2022). The Court finds she likely would. 

The issue is whether Ms. Foulks is entitled to temporary total disability benefits 

after Dr. Lochemes, her authorized treating orthopedic, released her at maximum medical 

improvement and she continues to treat with Dr. Scarbrough. Tennessee Code Annotated 

section 50-6-207(1)(E) states that an employee “shall be conclusively presumed to be at 

maximum medical improvement when the treating physician ends all active medical 

treatment and the only care provided is for the treatment of pain or for a mental injury that 

arose primarily out of a compensable physical injury.” (Emphasis added). Put another way, 

the issue is whether Dr. Scarbrough’s treatment constitutes active treatment, or if he is only 

providing care for the treatment of pain.

The central focus when interpreting any statute is to “ascertain and give effect to the 

intention or purpose of the legislature as expressed in the statute.” In re Adoption of A.M.H., 

215 S.W.3d 793, 808 (Tenn. 2007). Unless the language is ambiguous, the Court must 

derive legislative intent “from the natural and ordinary meaning of the statutory language 

within the context of the entire statute without any forced or subtle construction that would 

extend or limit the statute’s meaning.” Id.

Here, the natural and ordinary meaning of the statute, as indeed it is almost a

verbatim recitation of the statute, isthat maximum medical improvement is presumed when

all active medical treatment has ended, and the only remaining treatment is for pain alone.

1 The parties stipulated that the sole issue was whether Ms. Foulks is entitled to continued temporary total

disability. Therefore, the Court will not address whether Ms. Foulks is entitled to temporary partial 

disability.
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It is therefore also true to say that maximum medical improvement is not presumed when 

the medical treatment is not for pain alone, and returns us to the question of whether Dr. 

Scarbrough’s treatment of Ms. Foulks constitutes active medical treatment, or passive 

treatment for pain alone.

Black’s Law Dictionary defines active as “this is an action; that demands action; 

actually subsisting; the opposite passive.” Black’s Law Dictionary 31 (5th ed. 1979) Black’s 

defines passive as “As used in law, this term means inactive; permissive; consisting in 

endurance or submission, rather than action.” Black’s Law Dictionary 1012 (5th ed. 1979). 

Passive can further be defined as “not acting to influence or change a situation.” 

Dictionary.Cambridge.org/us/, 

https://dictionary.cambridge.org/us/dictionary/english/passive (last visited Jan. 20, 2023).

According to Dr. Scarbrough, Ms. Foulks never received full treatment for her right 

foot and ankle and was continuing to lose function. His treatment plan is one of action, as

he is attempting to change Ms. Foulks’s situation by improving her function and gait, not 

simply endure her situation from a pain standpoint. 

ABM argued that section 50-6-207(1)(E) does not distinguish between active pain 

management and pain management. However, the Court interprets the statute to mean that 

if an employee is only treating for pain or a mental injury, then all active treatment has 

ended. Here, active treatment has not ended, because the treatment is not for pain alone. 

Further, ABM argued that Dr. Lochemes is the treating physician referenced in 

section 50-6-207(1)(E). However, the parties have stipulated that Dr. Scarbrough is an 

authorized treating physician under the Tennessee Workers’ Compensation Act, and case 

law permits more than one treating physician. Johnson v. Inspire Brands d/b/a Blazin 

Wings, Inc., 2022 TN Wrk. Comp. App. Bd. LEXIS 35, at *23 (Sept. 7, 2022). Therefore, 

the Court finds that if Dr. Scarbrough’s treatment is active and more than for pain, then 

Ms. Foulks is not conclusively presumed to be at maximum medical improvement. 

In Tolbert v. MPW Industrial Services, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 

14 (Mar. 24, 2016), the Appeals Board applied section 50-6-207(1)(E) in an initially similar 

situation: the employee’s orthopedic physician placed him at maximum medical 

improvement and referred him for pain management. The employee first saw the pain 

management physician on November 11, 2015. After several visits, the pain management 

physician assigned restrictions and wrote he anticipated maximum medical improvement

in approximately four weeks. The employee testified that he was offered no treatment 

options other than controlling his pain with medication. Id. at *3. The trial court awarded 

temporary total disability benefits from November 11, 2015, until he returned to work or 

the pain management physician placed him at maximum medical improvement. The 

Appeals Board found the conclusive presumption applied and reversed the trial court’s 
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decision because the only treatment option offered was “trying to control the pain,” and 

the employee was offered no treatment options other than pain management. Id. at *13. 

Here, unlike in Tolbert, Dr. Scarbrough is doing more than trying to control Ms. 

Foulks’s pain and has offered other treatment options. Specifically, Dr. Scarbrough has 

ordered aggressive physical therapy interventions to regain her overall functional status, 

correct her gait, and prevent any further deterioration in function. Dr. Scarbrough’s records 

state that his objective is functional improvement and not just pain management. 

Additionally, Ms. Foulks testified that Dr. Scarbrough “was trying to get me to go further” 

than simply taking medication. 

Therefore, the Court finds that Ms. Foulks is not at maximum medical improvement 

per Tennessee Code Annotated section 50-6-207(1)(E) because her medical treatment is 

still active, and the treatment is not only for pain. Therefore, temporary disability benefits 

should be reinstated for the period that Ms. Foulks was off work. 

The parties agreed that ABM overpaid Ms. Foulks temporary total disability 

benefits in the amount of $16,070.07. Ms. Foulks has requested that the credit be applied 

against any permanent partial disability benefits she is awarded. Due to the amount of the 

overpayment credit and her compensation rate, the Court holds that the credit should be 

applied against the temporary total disability benefits awarded in this order. 

IT IS, THEREFORE, ORDERED as follows: 

1. Ms. Foulks is awarded temporary total disability benefits at the rate of $374.49 from 

April 26, 2022, to December 5, 2022, which totals $11,876.68. 

2. The owed benefits of $11,876.68, will be deducted from the $16,070.07 temporary 

disability overpayment, reducing the overpayment to $4,193.39. Her attorney is 

entitled to fees totaling twenty percent of this award. 

3. The Court sets a status conference on April 24, 2023, at 9:30 a.m. Central Time. 

The parties must call (866) 943-0014 to participate. Failure to call might result in a 

determination of the issues without the party’s participation. 

4. 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 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 
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questions regarding compliance, please contact the Workers’ Compensation 

Compliance Program via email WCCompliance.Program@tn.gov. 

ENTERED January 31, 2023. 

________________________________________ 

 Judge Shaterra R. Marion 

Court of Workers’ Compensation Claims 

APPENDIX

Exhibits: 

1. Joint Stipulations Filed by the Parties 

2. Dr. John Lochemes’s medical records and response to Employer’s letter 

3. Dr. Michael Cody Scarbrough’s medical records and response to Employee’s letter 

Technical Record: 

1. Petition for Benefit Determination 

2. Dispute Certification Notice 

3. Hearing Request, along with Affidavit of Barbara Foulks 

4. Employer’s Pre-Expedited Hearing Brief, 

5. Employer’s Witness and Exhibit List 

6. Employee’s Pre-Hearing Brief 

CERTIFICATE OF SERVICE 

I certify that a copy of this Order was sent as indicated on January 31, 2023. 

Name Certified 

Mail

U.S. 

Mail Email

Service sent to:

Jonathan May,

Employee’s Attorney

X jmay@forthepeople.com

cwoods@forthepeople.com

David Deming,

Employer’s Attorney

X ddeming@manierherod.com

tjoiner@manierherod.com
7 

_____________________________________ 

 Penny Shrum, Court Clerk

Court of Workers’ Compensation Claims 

WC.CourtClerk@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]