1



### TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MURFREESBORO

JOSHUA FREEMAN

, ) Docket No. 20 21

- 05

- 0645

Employee, )

v. )

)

CERTIFIED MAINTENANCE

, ) State File No. 20077

- 2019

SERVICE, INC., )

Employer

, )

and )

)

ACCIDENT FUND GEN. INS. CO., ) Judge Dale Tipps

Carrier. )

EXPEDITED HEARING ORDER DENYING BENEFITS

The Court held an Expedited Hearing on August 2 , 2022, to determine whether Mr.

Freeman is entitled to additional medical treatment, specifically the scapular MRI

recommended by one of his authorized physi cians . The Court finds the evidence does not

support Mr. Freeman’s contention that the MRI is reasonable and necessary treatment for

his compensable injury. Therefore, the Court cannot hold that he is likely to prevail at a

hearing on the merits.

History of Claim

The parties agreed that Mr. Freeman suffered a compensable back injury on March

16, 2019

. C MS accepted the claim and provided medical benefits

, including treatment with

Dr. Stanley Hopp, an orthopedic specialist he selected f rom a panel.

After physical therapy and an MRI, Dr. Hopp assessed thoracic strain and

underlying degenerative disc disease with no objective radiculopathy. He released Mr.

Freeman at maximum medical improvemen t

. When Mr. Freeman returned with continuing

complaints, Dr. Hopp made a physiatry referral . In response to a letter from the carrier

, Dr. Hopp said that, although the thoracic strain was more than fifty percent caused by the

work injury, “his ongoing complaints at this time are related to the degenerative disc in the

thoracic spine .” 

## FILED

Aug 05, 2022

09:33 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS2



### Despite Dr. Hopp’s response, CMS provided a panel of physiatrists, and Mr.

Freeman selected Dr. Robert Todd. He told Dr. Todd that his pain began in the low thoracic

spine, but over time, it m igrated to his left periscapular region and the base of his neck. He

also described in termittent numbness and ti ngling in his small left toe and small left finger

. Dr. Todd prescribed more physical therapy and ordered cervical and lumbar MRIs

. 1



### When Mr. Freeman returned, Dr. Todd told him that both MRIs were essentially

normal, with only mild facet arthrosis in the lumbar region. Dr. Todd found no significant

nerve impingement and placed Mr. Freeman at maximum medical imp rovement

. However, because of continued neurological complaints, he referred Mr. Freeman to a

neurologist.

Like Dr. Hopp, Dr. Todd also responded to question s from the carrier about the

cause of Mr. Freeman’s symptoms. He s aid that the referral to chiropractic treatment was

more than fifty percent related to the work injury , but h e was unable to “say with more than

50% certainty ” the neurological symptoms were related to it. However , Dr. Todd felt the

neurological referral was reasonable because Mr. Freeman did not have those problems

before the injury.

Even though Dr. Todd could not say the neurological symptoms were primarily

caused by the work injury , CMS provided a neuro logy panel, and Mr. Freeman selected

Dr. Larry Gibson

. The EMG and nerv e conduction studies ordered by Dr. Gibson were

normal

, as was a left shoulder MRI . As a result, Dr. Gibson completed a Final Medical

Report and assigned an impairment rating. However

, le ss than two weeks later , he

recommended an MRI of the left scapular and chest region.

Dr. Gibson gave a deposition , where he explained that he ordered the scapular MRI

because Mr. Freeman called his office and requested it

. Although he said it was an effort

to find some answers and develop a plan of treatment, he was skeptical “that we were going

to find anything that was going to explain everything.” He was unable to say that the MRI

was medically necessary because of the work accident. Dr. Gibson was also asked whether

, from a neurological standpoint, any additional treatment or tests related to the work

accid ent would be reasonable

. He responded “No.”

At the conclusion of the hearing, Mr. Freeman noted that Dr. Gibson was unable to

say whether his problem s are related to the work injury. As a result, he contended that

CMS has a duty to provide the scapular MRI in order to determine the cause of his

continued symptoms. CMS, on the other hand, contended that Mr. Freeman is not e ntitled

to the MRI b ecause he presented no medical proof that it was made reasonably necessary

by his work injury

.

1 It appears that CMS also provided chiropractic treatment during this period.3 

### Findings of Fact and Conclusions of Law

For the Court to grant Mr. Freeman ’s request, he must prove he is likely to prevail

at a hearing on the merits. Tenn. Code Ann. § 50

- 6

- 239(d)(1) (2021); McCord v.

Advantage Human Resourcing , 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7

- 8, 9 (Mar.

27, 2015).

CMS did not contest the compensability of Mr. Freeman’s claim but contended that

he is not entitled to the scapular MRI

. Thus, the specific question before the Court is

whether Mr. Freeman is likely to prove that the MRI is reasonable and necessary treatment

for his work injury.

The Workers’ Compensation Law requires an employer to provide reasonable,

necessary treatment at no cost to the injured worker. Tenn. Code Ann. § 50

- 6

-

204 (a)(1)(A)

. Fu rther, a ny treatment recommended by a panel physician “shall be

presumed to be medically necessary for the treatment of the injured employee.” Tenn.

Code Ann. § 50

- 6

- 204 ( a)(3) (H).

Applying this standard to Mr. Freeman’s claim, t he Court finds that he presented n o

evidence the MRI is current ly reasonable and necessary

. It is true that Dr. Gibson initially

ordered the procedure at Mr. Freeman’s request, and that recommendation would have

been entitled to a presumption of medical necessity. However, he effectively withdrew the

recommendation when he testified that he could not say that any treatment or test, including

the MRI

, was medically necessary because of the work accident. Mr. Freeman thus has no

medical opinion supporting his request.

The Court recognizes Mr. Freeman’s frustration with his continuing symptoms and

understands his contention that testing should continue until the doctors can explain the

cause. However, this approach is not supported by existing law. The statute requires expert

proof that treatment is medically necessary and reasonable and arises primarily out of the

work injury. Because Mr. Freeman did not present that evidence, the Court cannot find he

is likely to pr ove entitlement to the scapular MRI.

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Freeman ’s claim against Certified Maintenance Service for the scapular MRI is

denied at this time.

2. This case is set for a Scheduling Hearing on October 12 , 2022, at 9: 0 0 a.m. You

must call toll

- free at 855

- 874

- 0473 to participate. Failure to call might result in a

determination of the issues without your further participation. All conferences are

set using Central Time.4



### ENTERED August 5 , 2022.

______________________________________ DALE TIPPS , JUDGE

Court of Workers’ Compensation Claims

Exhibits:

1. Mr. Freeman ’s Rule 72 Declaration

2. Transcript of Dr. Larry Gibson’s deposition

3. Concentra Records (identification only)

4. Employer’s indexed medical records

Technical record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

4. Employer’s Pre

- Hearing Brief

5. Employer’s Exhibit List

6. Employer’s Witness List

7. Employee’s Witness List

CERTIFICATE OF SERVICE

I certify that a copy of the Order was sent as indicated on August 5, 2022.

Name Certified

Mail Fax Email Service sent to:

Joshua Freeman X Jafreeman72@gmail.com

Cole Stinson

, Employer’s Attorney X Cole.stinson@afgroup.com

______________________________________ PENNY SHRUM, COURT CLERK

wc.courtclerk@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]LB

- 1108 (REV 11/15) RDA 11082 Tennessee Bureau of Workers’ Compensation

220 French Landing Drive, I

- B

Nashville, TN 37243

- 1002

800

- 332

- 2667

A FFIDAVIT OF I NDIGENCY

I, ________________________________________, having been duly sworn according to law, make oath that

because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be

waived. The following facts support my poverty.

1. Full Name: 2. Address:

3. Telephone Number: 4. Date of Birth:

5. Names and Ages of All Dependents:

___________ ___________________________ Relationship:

_________________________ _____________ Relationship:

______________________________________ Relation ship:

______________________________________ Relationship:

6. I am employed by:

My employer’s address is:

My employer’ s phone number is:

7. My p resent monthly household income, after federal income and social security taxes are deducted, is:

$

___________________

8. I receive or expect to receive money from the following sources:

AFDC $ ________ per month beginning

SSI $ ________ per mo nth beginning

Retirement $ ________ per month beg inning

Disability $ ________ per month beginning

Unemployment $ ________ per month beginning

Worker’ s Comp. $ ________ per month beginning

Other $ ________ per month beginningLB

- 1108 (REV 11/15) RDA 11082 9. My expenses are:

Rent/House Payment $ ________ per month Medical/Dental $ __

_ _____ ___ per month

Groceries $ ________ per month Telephone $ per month

Electricity $ ________ per month School Supplies $ per month

Water $ ________ per month Clothing $ per month

Gas $ ________ per month Child Care $ per month

Transportation $ ________ per month Child Support $ per month

Car $_________ per month

Other $ _______ per month (describe: )

10. Assets:

Automobile $ (FMV)

Checking/Savings Acct

. $

House $ (FMV)

Other $ Describe:

11. My debts are:

Amount Owed To Whom

I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete

and that I am financially unable to pay the costs of this appeal

.

_ APPELLANT

Sworn and subscribed before me , a notary public, this

_______ day of , 20

_______ .

NOTARY PUBLIC

My Commission Expires: