FILED May 07, 2018 03:12 PM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

TENNESSEE BUREAU OF WORKERS' COMPENSATION IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT NASHVILLE Elizabeth Scharmberg, ) Docket No. 2018-06-0151 Employee, ) v. ) State File No. 56955-2016 Krog1er Co., ) Employer. ) Judge Robert Durham EXPEDITED HEARING ORDER GRANTING BENEFITS (DECISION ON THE RECORD) This case came before the Court for an expedited hearing. Under Rule 0800-02- 21-.02(14), Ms. Scharmberg requested the Court issue a decision on the record, and Kroger did not object. On April 24, 2018, the Court sent a docketing notice to the parties regarding the contents of the record. Neither party objected to any of the documents listed in the docketing notice. Considering the record, the Court concludes it needs no further information to make a judgment. The sole issue is whether Ms. Scharmberg is entitled to pain management treatment from Dr. James Eby as recommended by authorized physician Dr. Tarek Elalayli. The Court holds that Ms. Scharmberg established she would likely prevail at trial regarding this issue and orders Kroger to authorize treatment with Dr. Eby. History of Claim On July 26, 2016, Ms. Scharmberg tripped and fell while working for Kroger. She claimed multiple injuries, and Kroger accepted her claim as compensable. Kroger initially authorized Dr. Howard Nevels to provide treatment. When conservative treatment failed to alleviate her pain, Dr. Nevels referred her for pain management. Kroger provided a panel, and Ms. Scharmberg chose Dr. Jeffrey Hazlewood. Dr. Hazlewood evaluated Ms. Scharmberg in November 2016. He determined that she needed to see an orthopedic surgeon to evaluate her condition and stated he would see her back "as needed."

Kroger then authorized Ms. Scharmberg to treat with orthopedist Damon Petty, M.D. Dr. Petty determined that her complaints were primarily due to cervical radiculopathy, which he related to her work accident, and he recommended she see a spine specialist.

Kroger provided a panel of neurosurgeons, and Ms. Scharmberg chose Dr. Gray Stahlman. For unexplained reasons, Dr. Stahlman did not see her, so Ms. Scharmberg then chose Dr. Robert Weiss. Dr. Weiss believed that her cervical spine issues were "long-standing and degenerative," and he had nothing to offer her.

Despite Dr. Weiss' opinion, Kroger offered another panel of neurosurgeons, and Ms. Scharmberg selected Dr. Elalayli. Dr. Elalayli felt that Ms. Scharmberg should avoid cervical spine surgery, and on November 29, 2017, he referred her to physiatrist James Eby, M.D., for pain management. Kroger did not offer a panel of physicians within three business days of Dr. Elalayli's referral. However, Kroger refused to authorize Dr. Eby, stating that Dr. Hazlewood was already her authorized physiatrist. On January 24, 2018, Dr. Elalayli completed a referral to Dr. Hazlewood, stating that Dr. Hazlewood saw Ms. Scharmberg in the past. Ms. Scharmberg requests that Kroger authorize Dr. Eby.

Findings of Fact and Conclusions of Law

Ms. Scharmberg need not prove every element of her claim by a preponderance of the evidence to obtain relief at an expedited hearing. Instead, she must present sufficient evidence that she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(l) (2017); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

Two statutory sections are relevant to the issue at hand: Tennessee Code Annotated sections 50-6-204(3)(A)(ii) and 50-6-204(E). They respectively state:

When necessary, the treating physician selected in accordance with this subdivision (a)(3)(i) shall make referrals to a specialist physician, surgeon, or chiropractor and immediately notify the employer. The 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, surgeons, chiropractors or specialty practice groups[.]

And, In all cases where the treating physician has referred the employee to a [specialist], the [specialist] to which the employee has been referred, or selected by the employee from a panel provided by the employer, shall become the treating physician until treatment by the [specialist] concludes and the employee has been referred back to the treating physician selected by the employee from the initial panel[.]

Here, Kroger does not dispute that Dr. Elalayli was Ms. Scharmberg's authorized physician at the time he referred her to Dr. Eby. Further, Kroger did not object to Dr. Eby within three business days. Thus, under the plain language of 50-6-204(3)(A)(ii), Kroger accepted Dr. Eby as Ms. Scharmberg's authorized physician for pain management.

Nonetheless, Kroger argues that the statute is inapplicable, since Ms. Scharmberg previously chose Dr. Hazlewood for pain management. However, 50-6-204(E) states that once an authorized physician refers the employee to a specialist, that specialist becomes the authorized physician until the employee is referred back to the original doctor. Thus, Dr. Hazlewood's status as the authorized physician ended once he referred Ms. Scharmberg to an orthopedist.

Kroger might argue that Dr. Elalayli has now referred Ms. Scharmberg back to Dr. Hazlewood, thus once again making him the authorized physician as contemplated by 50- 6-204((E). However, the Court finds this argument unpersuasive for two reasons. One, 50-6-204(3)(A)(ii) would be severely undermined if an employer were allowed to circumvent the three-day requirement by urging the referring specialist to change his referral weeks or even months after the fact. Second, once Dr. Elalayli referred Ms. Scharmberg to Dr. Eby and Kroger failed to object within three days, Dr. Eby, not Dr. Elalayli became the physician authorized by statute to provide Ms. Scharmberg's treatment. Kroger introduced no proof that Dr. Eby referred Ms. Scharmberg to Dr. Hazlewood. Thus, the Court rejects Kroger's position and holds that Dr. Eby is Ms. Scharmberg's authorized physician for pain management.

IT IS, THEREFORE, ORDERED that:

1. Kroger shall authorize Dr. Eby to provide Ms. Scharmberg with reasonable and necessary medical care for her work-related injury.

2. This matter is set for a Scheduling Hearing on June 21, 2018, at 9:30a.m. C.S.T. You must call 615-253-0010 or toll-free at 855-689-9049 to participate in the Hearing. Failure to call in may result in a determination of the issues without your further participation.

3. 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 or Self-Insured Employer must submit confirmation of compliance with this Order to the Bureau by email to [email protected] 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 questions regarding compliance, please contact the Workers' Compensation Compliance Unit vm email [email protected]

ENTERED THIS THE 7th DAY OF MAY, 2018.

~~ge Court of Workers' Compensation Claims APPENDIX Exhibits: 1. Medical records of Dr. Tarek Elalayli 2. Employer's Choice ofPhysician form dated 9-24-2017 3. Medical record of Dr. Robert Weiss 4. Choice ofPhysician Form dated 7-27-2017 5. Choice of Physician Form dated 5-23-2017 6. Medical records of Dr. Damon Petty 7. Medical records of Dr. Harold Nevels 8. First Report of Injury 9. Wage Statement 10.Medical records of Dr. Jeffrey Hazlewood 11. Affidavit of Elizabeth Scharmberg Technical Record:

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Expedited Hearing Order Granting Benefits was sent to the following recipients by the following methods of service on this the ih day of May, 2018.

Name Certified Email Email Address Mail Andrea Meloff X ameloff@ddzlaw .com Heather H. X [email protected] Douglas 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: “Expedited Hearing 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 fully- completed 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.