Bassham, Stephen v. Lowe's Home Centers, Inc.

FILED
May 01, 2023
01:30 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Stephen Bassham ) Docket No. 2022-02-0210
)
v. ) State File No. 800835-2022
)
Lowe’s Home Centers, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Brian K. Addington, Judge )

Affirmed and Remanded

In this interlocutory appeal, the employee asserts the trial court erred in denying his
request for a second medical opinion related to alleged bilateral wrist injuries.
Specifically, the employee contends he injured his hands and wrists while installing steel
shelving in the course and scope of his employment. The employer eventually authorized
medical treatment, provided a panel of physicians, and approved a referral to a hand
specialist. After one visit, the authorized specialist placed the employee at maximum
medical improvement, assigned no permanent impairment, and opined that the
employee’s condition was related to an underlying pre-existing condition. Thereafter, the
employee asked to see another physician for treatment options. Following an expedited
hearing, the trial court concluded that the employee was not entitled to a second opinion
because his authorized treating physician did not recommend surgery or refer him for a
second opinion. The employee has appealed. Having carefully reviewed the record, we
affirm the trial court’s decision and remand the case.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Meredith B. Weaver joined.

Samuel McPeak, Johnson City, Tennessee, for the employee-appellant, Stephen Bassham

Allison Tomey, Knoxville, Tennessee, for the employer-appellee, Lowe’s Home Centers,
Inc.

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Memorandum Opinion 1

Stephen Bassham (“Employee”) alleges he injured his hands and wrists while
installing metal shelves in the course and scope of his employment with Lowe’s Home
Centers, Inc. (“Employer”). Employee asserts that after experiencing pain in his wrists
and forearms he saw Dr. Timothy Jenkins. 2 Dr. Jenkins reviewed Employee’s x-rays,
diagnosed him with complete bilateral ligament tears, and recommended physical therapy
and an MRI.

Thereafter, Employee notified Employer of the alleged injury, filed a petition for
workers’ compensation benefits, and was eventually provided a panel of physicians.
Employee selected Dr. Clarence Goulding, who saw Employee on one occasion and
referred him back to Dr. Jenkins. Dr. Jenkins saw Employee in June 2022 and noted
bilateral scapholunate tears, indicating Employee “feels these are [a] work-related
event . . . . I would like for him to see my hand partner sometime in the next few weeks to
discuss his options.” Dr. Jenkins then referred Employee to a hand and upper extremity
specialist, Dr. Kenneth Lord, who became Employee’s authorized physician. Dr. Lord
examined Employee on June 13, 2022, and, upon review of the MRI and x-rays, stated
that Employee’s imaging results were consistent with bilateral arthritis and “widening at
the scapholunate area as well as the progressive deformity on the left side with narrowing
radiocarpal joint space.” Dr. Lord recommended a steroid injection and conservative
treatment, advising Employee that he would be seen on an “as-needed” basis. On August
31, 2022, Dr. Lord placed Employee at maximum medical improvement and assigned no
impairment rating or restrictions. Subsequently, in response to a questionnaire sent by
Employer, Dr. Lord agreed that Employee’s arthritis was “more likely than not an
underlying pre-existing condition” and confirmed Employee’s date of maximum medical
improvement. Employee last received medical treatment in June 2022 and has asked for
another physician to provide a second opinion.

An expedited hearing was held on February 14, 2023, at which Employee and his
wife both testified and expressed concerns with Dr. Lord’s diagnosis of arthritis in light
of the objective studies and Dr. Jenkins’s treatment. The court also considered certain
medical records from Dr. Jenkins, Dr. Goulding, and Dr. Lord. Following the expedited
hearing, the trial court determined that Employee is not entitled to a second opinion

1
“The appeals board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the appeals board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Tenn. Comp. R. & Regs. 0800-02-22-.03(1) (2020).
2
Employee testified that he was initially seen by his primary care physician, who obtained an EMG and
referred him to an orthopedist. These medical records are not contained in the record on appeal; however,
as this portion of his medical care is not at issue in this appeal, the absence of these records is not
determinative.
2
because his authorized treating physician did not recommend surgery or refer him for a
second opinion.

On his notice of appeal, Employee asserts the trial court erred by denying his
request for a second opinion. Employee did not file a brief on appeal consistent with
Tenn. Comp. R. and Regs. 0800-02-22-.05(2), but he filed a position statement, in which
he asserts that Dr. Jenkins, as an authorized treating physician, “was subsequently
nullified resulting in a request for a second opinion to rationally resolve a diagnosis
dispute.” Employee asserts he is seeking “the presumed treatment” from Employer. In
its brief on appeal, Employer asserts the trial court correctly concluded Employee is not
entitled to a second opinion under the terms of the relevant statute. We agree.

Tennessee Code Annotated section 50-6-204(a)(3)(C) governs when an injured
worker is entitled to a second opinion and provides, in part, as follows:

When the treating physician or chiropractor refers the injured employee,
the employee shall be entitled to have a second opinion on the issue of
surgery and diagnosis from a physician or chiropractor from a panel of two
(2) physicians practicing in the same specialty as the physician who
recommended the surgery.

(Emphases added.) Here, although Employee appears to assert that Dr. Jenkins is the
authorized physician, it is clear that Dr. Lord became Employee’s authorized treating
physician, as Dr. Jenkins made a direct referral to Dr. Lord that was honored by
Employer. See Tenn. Code Ann. § 50-6-204(a)(3)(E). Employee’s argument that the
authorized treating physician was “nullified” is without merit. Dr. Lord has made no
surgical recommendations that would trigger Employee’s entitlement to a second
opinion. See Petty v. Convention Prod. Rigging, No. 2016-06-0841, 2016 TN Wrk.
Comp. App. Bd. LEXIS 95, at *21 (Tenn. Workers’ Comp. App. Bd. Dec. 29, 2016)
(“The phrase ‘as the physician who recommended the surgery’ necessarily requires there
to be an opinion of a specialist recommending surgery before an injured worker is
entitled to a second opinion.”) In addition, as the trial court indicated in its order, there
was no evidence in the medical record that Dr. Jenkins had recommended surgery.

In reaching its conclusion that Employee is not likely to succeed at a hearing on
the merits in proving that he is entitled to a second opinion, the trial court considered the
testimony of Employee, the testimony of Employee’s wife, and the medical records that
were offered into evidence. We conclude that the preponderance of the evidence
supports the trial court’s determination.

Finally, although we have concluded Employee’s arguments in this appeal do not
support reversing the trial court’s order, we do not find that the arguments were so devoid
of merit, or taken solely for delay, as to support a finding that the appeal is frivolous. For

3
the foregoing reasons, we affirm the decision of the trial court and remand the case.
Costs on appeal are taxed to Employee.

4
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Stephen Bassham ) Docket No. 2022-02-0210
)
v. ) State File No. 800835-2022
)
Lowe’s Home Centers, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Brian K. Addington, 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 1st day
of May, 2023.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Samuel K. McPeak X sam@hbm-lawfirm.com
sandy@hbm-lawfirm.com
Allison Tomey X aptomey@mijs.com
lsgwinn@mijs.com
Brian K. Addington, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims

Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov