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Lowe v. Wal-Mart Stores2/15/2002
Mailed - January 15, 2002
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann.§ 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. After being informed by his employer that he could see no more physicians, the plaintiff nevertheless sought additional treatment for a neck injury which resulted in a surgical correction. The trial judgment ordered these unauthorized expenses to be paid by the employer. We affirm.
Tenn. Code Ann. § 50-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed
William H. Inman, Sr. J., delivered the opinion of the court, in which Adolpho A. Birch, Jr., J. and Howell N. Peoples, Sp. J., joined.
MEMORANDUM OPINION
The sole issue in this case is whether the employer is liable for unauthorized medical expenses. The issue is squarely drawn; the employee, age 52, was knowledgeable and commendably candid, as will hereafter appear.
By way of background, the appellee sustained an injury to his low back in 1988 while working for Wal-Mart. Two disc were removed, with fusion. The parties agreed upon a settlement of 53 percent to the body as a whole.
He returned to work at Wal-Mart. In May 1997, while on the job, the plaintiff was struck on the head by a large flower pot and he was thrown off, or knocked off, a ladder. He was seen by several physicians, and it is here that the saga begins. He was awarded benefits for 50 percent permanent partial disability, 90 weeks of temporary total disability, and all medical expenses. As we have stated, only the latter benefit is at issue.
The plaintiff was initially seen by a Dr. Burns, who released him the same day. He was then seen by Dr. Strickland "who left the practice of medicine". Wal-Mart thereupon provided him with another panel of physicians and he selected Dr. Weiss, who, according to the unrefuted testimony of the plaintiff, made a cursory examination of five minutes in length and instructed him to return to work.
The plaintiff, claiming to be symptomatic, thereupon reported to his supervisor, Ms. Baker, and asked for another physician. According to the plaintiff, the request was refused. He testified that he called a Melissa Black, in Arkansas, who was identified as an adjuster.
The plaintiff testified that after talking to Ms. Black "my understanding was that I had already seen all doctors they was going to let me see and that was it".
The plaintiff thereupon saw Dr. David Gaw, who had treated him in 1988 for his first injury. Dr. Gaw recommended a leave of absence for the plaintiff, who was later referred by his family physician to Dr. M. J. McNamara, orthopedic surgeon.
A physical examination of the plaintiff revealed a 50 percent decrease in range of motion in all planes. Dr. McNamara obtained the flexion-extension films previously taken and reviewed a myelogram and MRI which demonstrated degenerative disc disease. Cervical traction was prescribed, followed by a two-level anterior cervical discectomy and fusion with a plate fixation anteriorly, which afforded a measure of relief to the plaintiff.
The plaintiff testified that he did not confer with he employer after being told by Ms. Baker and Ms. Black that "there will be no more doctors for you". In context, he testified:
Q: Do you know the difference between a company-authorized doctor and an unauthorized doctor?
A: Yes, I do.
Q: Could you briefly tell us what the difference is, essentially?<
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