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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD 

Buster Barrett ) Docket Nos. 2015-06-0186 

) 2015-06-0188 

v. ) 2015-06-0189 

) 

Lithko Contracting, Inc., et al. ) State File Nos. 78378-2014 

) 24788-2015 

) 24789-2015 

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Joshua D. Baker, Judge )

Affirmed and Remanded – Filed December 8, 2016 

In this second interlocutory appeal of this case, the first of two successive insurers asserts 

that the trial court erred in: (1) designating a physician from whom the employee sought 

unauthorized treatment as an authorized treating physician; (2) determining that the 

employer failed to timely provide a panel of physicians; and (3) ordering it to pay for 

medical treatment sought by the employee without the employer’s authorization. Upon 

careful review of the record, we affirm the trial court’s decision and remand the case for 

any further proceedings that may be necessary. 

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding 

Judge Marshall L. Davidson, III, and Judge David F. Hensley joined.

John W. Barringer, Jr., Nashville, Tennessee, for the employer-appellant, Lithko 

Contracting, Inc. 

Jill Draughon, Nashville, Tennessee, for the employee-appellee, Buster Barrett 

Factual and Procedural Background 

This is the second interlocutory appeal of this case. Buster Barrett (“Employee”) 

worked for Lithko Contracting, Inc. (“Employer”), as a concrete finisher and supervisor. 

He reported suffering work-related injuries on August 27, 2014, January 15, 2015, and 

January 21, 2015. Employer was insured for workers’ compensation purposes by two 
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successive insurers during the relevant time period: Ace American Insurance (“Ace”) had 

coverage through August 31, 2014, and Travelers Indemnity Company (“Travelers”)

issued a policy that became effective September 1, 2014. Each insurer employed 

separate counsel to represent it in this cause, and the attorneys retained by the insurers 

also represented Employer. 

It is undisputed that Ace initially authorized care with Dr. Harold Nevels, who 

referred Employee to an orthopedic specialist in February 2015. Thereafter, neither

insurer offered a panel of physicians or authorized any medical care, as each alleged the 

other was legally responsible for any such benefits. The first expedited hearing was 

conducted on September 15, 2015, and, in a May 13, 2016 order, the trial court 

determined, among other things, that the first insurer, Ace, was responsible for paying 

medical benefits. Employee appealed this order to the extent that it denied his request 

for temporary disability benefits, and we affirmed the order on June 17, 2016.

While the dispute was pending, and prior to the issuance of the trial court’s May 

13, 2016 expedited hearing order, Employee sought medical treatment on his own. He 

received care from Dr. Scott Standard for his back complaints and from Dr. William 

Beauchamp for his shoulder condition. Dr. Beauchamp diagnosed a rotator cuff tear and

a SLAP lesion in Employee’s left shoulder and recommended surgery, which was 

scheduled for May 17, 2016.

Following issuance of the trial court’s order on May 13, 2016, Employer, through 

Ace, provided Employee a panel of physicians on May 17, 2016, the date of Employee’s 

scheduled shoulder surgery. Employee did not select a physician or sign the form 

containing this panel, but proceeded with the previously-scheduled surgery. Employee 

then filed a motion seeking (1) to compel the payment of medical benefits incurred as a 

result of Dr. Beauchamp’s treatment, (2) to compel Employer to acknowledge Dr. 

Beauchamp as an authorized treating physician, and (3) to compel the payment of 

temporary disability benefits. Following a second hearing, the trial court issued an order 

granting Employee’s motion for the payment of medical benefits, the identification of Dr. 

Beauchamp as an authorized physician for the shoulder condition, and the payment of 

temporary disability benefits. Employer and Ace have appealed.1

Standard of Review

The standard we apply in reviewing a trial court’s decision is statutorily mandated 

and limited in scope. Specifically, “[t]here shall be a presumption that the findings and 

conclusions of the workers’ compensation judge are correct, unless the preponderance of 

 

1 Employer and Ace identified various issues in their notice of appeal and their position statement in 

support of their appeal, but have not appealed the trial court’s award of temporary disability benefits. 

Therefore, we will not address that aspect of the trial court’s order.
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the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2015). The trial court’s 

decision may be reversed or modified if the rights of a party “have been prejudiced 

because findings, inferences, conclusions, or decisions of a workers’ compensation judge:

(A) Violate constitutional or statutory provisions;

(B) Exceed the statutory authority of the workers’ compensation judge;

(C) Do not comply with lawful procedure;

(D) Are arbitrary, capricious, characterized by abuse of discretion, or 

clearly an unwarranted exercise of discretion; or

(E) Are not supported by evidence that is both substantial and material 

in the light of the entire record.” 

Tenn. Code Ann. § 50-6-217(a)(3) (2015).

Analysis

In the present case, Ace sets forth a number of issues on appeal. Each issue 

identified by Ace pertains to whether the trial court correctly determined that Ace must 

pay for medical expenses incurred as a result of Employee’s unauthorized treatment with 

Dr. Beauchamp, and whether Ace must authorize Dr. Beauchamp to provide any 

reasonable and necessary medical treatment for Employee’s work-related shoulder 

condition going forward.

It is a fundamental tenet of Tennessee workers’ compensation law that an 

employer is responsible for furnishing an injured worker “such medical and surgical 

treatment . . . made reasonably necessary by accident as defined in this chapter.” Tenn. 

Code Ann. § 50-6-204(a)(1)(A) (2015). Likewise, “the injured employee shall accept the 

medical benefits afforded [by the employer]; provided that in any case where the 

employee has suffered an injury and expressed a need for medical care, the employer 

shall designate a group of three (3) or more independent reputable physicians, surgeons, 

chiropractors or specialty practice groups . . . from which the injured employee shall 

select one (1) to be the treating physician.” Tenn. Code Ann. § 50-6-204(a)(3)(A)(i) 

(2015). Moreover, in circumstances where an authorized physician has referred the 

injured worker to a particular specialist, “[t]he employer shall be deemed to have 

accepted the referral, unless the employer, within three (3) business days, provides the 

employee a panel of three (3) or more independent reputable physicians.” Tenn. Code 

Ann. § 50-6-204(a)(3)(A)(ii) (2015).

We have previously addressed an employer’s responsibilities with respect to the 

provision of medical benefits. In McCord v. Advantage Human Resourcing, No. 2014-

06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6 (Tenn. Workers’ Comp. App. Bd. 

Mar. 27, 2015), we held that “mere notice of a workplace accident, in and of itself, does 

not trigger an employer’s duty to provide medical benefits in every case, without regard 
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to the particular circumstances presented.” Id. at *13. We noted that the Bureau of 

Workers’ Compensation’s rules and regulations set forth “Claims Handling Standards”

that allow an employer fifteen days to investigate a claim and make decisions on 

compensability. Id. at *12; see also Tenn. Comp. R. & Regs. 0800-02-14-.04(7) (1999). 

However, we cautioned that “an employer who elects to deny a claim runs the risk that it 

will be held responsible for medical benefits obtained from a medical provider of the 

employee’s choice and/or that it may be subject to penalties for failure to provide a panel 

of physicians and/or benefits in a timely manner.” Id. at *13. See also Young v. Young 

Electric Co., No. 2015-06-0860, 2016 TN Wrk. Comp. App. Bd. LEXIS 24, at *16 

(Tenn. Workers’ Comp. App. Bd. May 25, 2016) (“In circumstances where an employer 

refuses to provide medical treatment and/or denies the employee’s claim, such employer 

bears the risk of being held responsible for medical expenses incurred by the employee in 

the event the claim is deemed compensable.”).

In the present case, Ace argues that if an employer files a Form C-23 “Notice of 

Denial of Claim for Compensation,” it is “not required to provide a panel thereafter.”2 

Likewise, it asserts that a “good faith denial” of a claim absolves it of any consequences 

of its decision to deny medical benefits. Specifically, Ace argues that “Employer should 

not be penalized for waiting for the Court’s order to determine the responsible carrier for 

coverage of this claim.” It then argues that “Employer denied the claim on the good-faith 

belief that the other insurer was responsible for medical care.”3 We do not agree with

Employer’s argument and conclude, as we have previously, that an employer who elects 

to deny a claim for workers’ compensation benefits bears the risk of being held 

responsible for medical expenses incurred by the employee in the event the court later 

determines that such benefits were owed. Contrary to Ace’s argument, such a holding 

does not prevent an employer from denying a claim and refusing to authorize medical 

treatment, but it clearly sets forth the risks and obligations of the parties if the court 

disagrees with an employer’s denial and orders the payment of benefits.

Having reached this conclusion, however, we cannot ignore the practical impact of 

the trial court’s nearly eight month delay in issuing its order following the first expedited 

hearing. Had the trial court acted in a more expeditious manner, the parties would have 

had a ruling identifying which insurer was responsible and would have been able to 

assess their rights and obligations well in advance of the scheduling of Employee’s 

shoulder surgery. Ace argues that it “anticipated a prompt ruling from the [trial] court 

given the very nature of an Expedited Hearing. This did not occur.” It also points out 

that “[t]he purpose of the expedited hearing process is to expedite or execute decisions 

 

2 Tennessee Code Annotated section 50-6-102(13) (2015) provides that the term “employer” “shall 

include the employer’s insurer.” Thus, our analysis of an employer’s responsibilities to provide medical 

benefits applies equally to the employer and its workers’ compensation insurer.

3 We take this argument to mean that Ace denied Employee’s claim based on its belief that the subsequent 

insurer should be responsible for the claim.
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regarding medical and temporary benefits quickly.” We agree. As we previously noted, 

“although a trial court has broad discretion in managing its courtroom and docket, the 

court is expected to enter orders in a timely fashion and promptly adjudicate the rights of 

the parties.” Willis v. All Staff, No. 2014-05-0005, 2015 TN Wrk. Comp. App. Bd. 

LEXIS 42, at *11 (Tenn. Workers’ Comp. App. Bd. Nov. 9, 2015) (citation omitted)

(involving a potentially dispositive motion which went unresolved for approximately 

seven months); see also Tenn. Code Ann. § 4-3-1409(b)(2)(A) (2014) (the workers’ 

compensation system is intended to be administered in a “fair, equitable, expeditious, and 

efficient” manner). “To do otherwise undermines fundamental fairness and the proper 

administration of justice.” Willis, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *11.

Nevertheless, we also note that Employer and its successive insurers could have 

reached an agreement to initiate Employee’s medical treatment pending the trial court’s 

determination of which insurer was responsible, but they did not do so. Ace asserts on 

appeal that the compensability of Employee’s alleged injuries, and not just which insurer 

was responsible, was always in dispute. However, that position is not reflected in its 

pleadings prior to the first expedited hearing. Instead, the issue as stated by Ace in its 

September 11, 2015 brief was “whether the Claimant’s injuries stemmed entirely from 

the August 27, 2014 injury or whether there was any contribution and or [sic] anatomic 

change from the successive injuries.” Had the successive insurers reached an agreement 

to initiate Employee’s medical treatment pending the trial court’s decision on which 

insurer was responsible, Employer could have provided a panel of physicians in a timelier 

manner, thereby exercising more control over Employee’s medical treatment, regardless 

of the trial court’s delay in entering an order. As it stands, Employer and its insurers 

chose instead to deny medical benefits after Dr. Nevels’ referral to a specialist, prompting 

Employee to file his petitions for benefit determination and requests for expedited 

hearing. The trial court determined that, under the circumstances, it was reasonable for 

Employee to seek treatment on his own. We find the evidence preponderates in favor of 

this determination. Therefore, we conclude that the trial court did not err in holding Ace 

responsible for the medical benefits incurred as a result of Employee’s treatment with Dr. 

Beauchamp and in designating Dr. Beauchamp as Employee’s authorized physician for 

treatment of his work-related shoulder condition.

Conclusion

For the foregoing reasons, we hold that the evidence does not preponderate against 

the trial court’s decision at this interlocutory stage of the case. Nor does the trial court’s 

decision violate any of the standards set forth in Tennessee Code Annotated section 50-6-

217(a)(3). Accordingly, the trial court’s decision is affirmed, and the case is remanded 

for any further proceedings that may be necessary.
 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

 WORKERS’ COMPENSATION APPEALS BOARD 

Buster Barrett ) Docket Nos. 2015-06-0186 

) 2015-06-0188 

v. ) 2015-06-0189 

) 

Lithko Contracting, Inc., et al. ) State File Nos. 78378-2014 

) 24788-2015 

) 24789-2015 

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Joshua D. Baker, Judge )

CERTIFICATE OF SERVICE 

 

I hereby certify that a true and correct copy of the Appeals Board’s decision in the 

referenced case was sent to the following recipients by the following methods of service 

on this the 8th day of December, 2016. 

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Fax 

Number

Via 

Email

Email Address

Jill Draughon X jdraughon@hughesandcoleman.com

John Barringer X jbarringer@manierherod.com

Wm. Ritchie Pigue X rpigue@tpmblaw.com

Patrick Ruth X patrick.ruth@tn.gov

Joshua Davis Baker, 

Judge

X Via Electronic Mail

Kenneth M. Switzer, 

Chief Judge

X Via Electronic Mail

Penny Shrum, Clerk, 

Court of Workers’ 

Compensation Claims

X Penny.Patterson-Shrum@tn.gov

 

Jeanette Baird

Deputy Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B 

Nashville, TN 37243 

Telephone: 615-253-0064 

Electronic Mail: Jeanette.Baird@tn.gov