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 

(DECISION ON THE RECORD) 

This case came before the Court on Carl Swafford's Request for an Expedited 

Hearing on the record. Mr. Swafford requested a valid panel of physicians and penalty 

assessment for failure to provide a valid panel.' Wal-Mart denied that Mr. Swafford is 

entitled to another panel, and the Court agrees. 

History of Claim 

While using a pallet jack 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 

rati ng, which he can request through the Medicallmpainnent Rating Registry. 2 The parties dispute whether the correct date of inj ury 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 

"greater than 50% probability that [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 Tenex procedure. 

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 if a 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 hip joint, 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 of the pleadings, which converts it to a Rule 56 motion for summary 

judgment. A Rule 56 motion requires a statement of undisputed facts. Therefore, the Court denies the 

motion to dismiss. 

2 
Later, 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 of Fact and Conclusions of Law 

Standard Applied 

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 

Medical Benefits 

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 of three 

(3) or more independent reputable physicians ... if available 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 of the subsequent orthopedic panel. The new 

panel listed physicians located in Chattanooga and Cleveland, with the Cleveland practice 

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 of his 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 of possible 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 of the issues 

without the party's participation. 

3 
ENTERED January 16,2020. 

Workers' Compensation Judge 

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APPENDIX 

Exhibits: 

1. First Report 

2. Panels (Center for Sports Medicine; Physicians Care) 

3. Responses of Dr. Shay Richardson dated February 28,2019 

4. Medical records of Physicians Care 

5. Medical records of Center for Sports Medicine & Orthopaedics 

6. Declaration of Betty Miller: 

a. Medical records 

b. Wage Statement 

c. Affidavit of Carl 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 

5 
CERTIFICATE OF SERVICE 

I certify that a copy of this 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 

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

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