## FILED Jan 16, 2020 01:20 PM(ET) TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS' COMPENSATION COURT OF WORKERS' COMPENSATION CLAIMS AT CHATTANOOGA Carl Swafford, Employee, ) Docket No. 2018-01-0036 ) 

### v. Wal-Mart Associates, Inc., Employer, And New Hampshire Insurance Company, Carrier. ) ) State File No. 1581-2017 ) ) ) Judge Audrey A. Headrick )

EXPEDITED HEARING ORDER

(DECISIONONTHERECORD)

This case came before the Court on Carl Swafford's Request for an Expedited Hearing on the record. Mr. Swafford requested a valid panel ofph ysicians and penalty assessment for failure to provide a valid panel.' Wal-Mart denied that Mr. Swafford is entitled to anotherpanel, and the Court agrees. History ofClaim While using a palletjack on January 6, 2017, Mr. Swafford injured his right hip? After receiving emergency treatment, Mr. Swafford treated with Physicians Care, who referred him to an orthopedist.

1 Mr. Swafford requested a valid wage statement since he worked for Wal-Mart for fewer than fifty-two weeks preceding his injury. Wai

-Mart later filed the wage statement of a similarly-situated employee, who earned the same hourly rate as Mr. Swafford

. Mr. Swafford also requested a "valid impairment rating, which he can request through the Medicallmpainnent Rating Registry

. 2 The parties dispute whether the correct date ofinju ry is January 5 or 6.Wai-Mart provided Mr. Swafford, who resides in Hixson, with an orthopedic panel located in McMinnville, Hixson, and Chattanooga. McMinnville is located approximately sixty-seven miles from Mr. Swafford's home. Mr. Swafford ultimately selected Dr. Matthew Bernard at the Center for Sports Medicine in Hixson. After reviewing a right-hip MRI, Dr. Bernard diagnosed a labral tear, stated with "greaterthan 50% probabilitythat [it was] directly related to his work related injury," and referred Mr. Swafford to Dr. Benjamin Miller in his practice for surgical consideration. In addition to the labral tear, Dr. Miller diagnosed a gluteus medius tendonitis and provided an injection. Dr. Miller referred Mr. Swafford to his practice partner, Dr. Shay Richardson, for a Tenexprocedure. After Mr. Swafford underwent the Tenex procedure, Drs. Richardson, Bernard, and Miller continued to intermittently treat him. Although Dr. Bernard stated in November 2017 that Mr. Swafford's hip did "not demonstrate osteoarthritis," Dr. Miller determined in May 2018 that his main problem was osteoarthritis. Dr. Miller recommended a total hip arthroplasty and referred him to Dr. Bernard for a surgical opmwn. Dr. Bernard recommended the surgery but only ifa cortisone injection provided relief. The cortisone injection did not provide relief, so Dr. Bernard did not recommend surgery. Instead, he diagnosed Mr. Swafford with "[h]ealed tendinosis" and "underlying chronic non-job related osteoarthritis." As to the osteoarthritis, Dr. Bernard released him to return on an as-needed basis. Dr. Bernard reiterated that he did "not believe [the osteoarthritis was] causally related at all to his injury and [was] simply an incidental finding on MRI."3 Since Dr. Richardson treated Mr. Swafford s tendonitis and performed the Tenex procedure, Dr. Bernard deferred to his opinion on causation, treatment, maximum medical improvement, and impairment. Dr. Richardson agreed with Dr. Bernard that Mr. Swafford's osteoarthritis was not work-related but determined that his tendinosis was more than fifty percent related to his work injury. He also concluded that "the majority of [Mr. Swafford's] pain [was] due to his arthritic hipjoint, and not workers comp related." While Dr. Richardson indicated on the Final Medical Report that he anticipates the need for future medical treatment, his last office note contained no recommendation for further treatment or evaluation for the tendinosis.

3 In its response, Wal-Mart moved to dismiss Mr. Swafford's right-hip osteoarthritis claim on grounds of compensability. However, the expedited hearing process is designed to address interlocutory issues. Wai-Mart relied on matters outside ofthe pleadings, which converts it to a Rule 56 motion for summary judgment. A Rule 56 motion requires a statement ofundisputed facts. Therefore, the Court denies the motion to dismiss.
2Later, at Mr. Swafford's request, Wal-Mart offered him a new panel of orthopedists located in Chattanooga and Cleveland. Cleveland is approximately thirty miles from Mr. Swafford's home. He declined to make a selection, asserting it did not contain physicians located in his community. Findings ofFact and Conclusions ofLaw 

### StandardApplied Mr. Swafford must present sufficient evidence from which the Court can determine he is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6- 239(d)(l) (2019). The Court holds he did not. Analysis 

### MedicalBenefits The preliminary issue is whether Wal-Mart provided a valid panel of orthopedic physicians to Mr. Swafford, who lives in Hixson. The original panel listed providers located in McMinnville, Hixson, and Chattanooga with the McMinnville practice located approximately sixty-seven miles from Mr. Swafford's home. Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) requires that an employer 

### "shall designate a group ofthree (3) or more independent reputable physicians

... 

## ifavailable in the injured employee's community." (Emphasis added). The Court finds that the original panel listing a McMinnville practice was invalid and did not comply with the statute. The Court next turns to the validity ofthe subsequent orthopedic panel. The new panel listedphysicians located in Chattanooga and Cleveland, with the Clevelandpractice located within thirty miles of Mr. Swafford's home. While the distance from Mr. Swafford's home may have been inconvenient, the Court finds that Wal-Mart remedied the defective panel by providing one that was reasonably within his community. The Court holds that Mr. Swafford shall select a physician from the newly-submitted panel for evaluation and treatment ofhis work-related right-hip condition. Therefore, the Court denies Mr. Swafford's request for another panel. IT IS, THEREFORE, ORDERED as follows: 1. The Court denies Mr. Swafford's request and declines to refer Wal-Mart for consideration ofpossible penalty assessment. 2. This case is set for a Status Hearing on Wednesday, March 25, 2020, at 2:00 p.m. Eastern Time. The parties must call (423) 634-0164 or toll-free at (855) 383-0001 to participate. Failure to call may result in a determination ofthe issues withoutthe party's participation.

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### ENTERED January 16,2020.

Workers' Compensation Judge

4APPENDIX 

### Exhibits: 1. First Report 2

. Panels (Center for Sports Medicine; Physicians Care) 3. Responses ofDr. Shay Richardson dated February 28,2019 4

. Medical records ofPhysicians Care 5. Medical records ofCenter for Sports Medicine & 

### Orthopaedics 6
. Declaration ofBetty Miller: a. Medical records b. Wage Statement c. Affidavit ofCarl Swafford Technical record: 1. Petition for Benefit Determination 2

. Dispute Certification Notice 3. Request for Expedited Hearing 4

. Employee's Position Statement 5

. Docketing Notice 6. Motion for Time Extension 7. Proposed Agreed Order Allowing Time Extension 8. Employer's Response in Opposition to Employee's Request for Expedited Hearing and Motion to Dismiss

5CERTIFICATE OF SERVICE I certify that a copy ofthis Order was sent as indicated on January 16, 2020

.

Name Certified Email Service sent to: Mail Scott N. Davis, X sdavis@noogalaw.com Employee's Attorney Celeste M. Watson, X celeste@cmwatsonlaw.com Employer's Attorney

# ~**\~u~)** PENNY SHR .M, COURT CLERK wc.courtclerk@tn.gov

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