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TN COURTOF l\ORKI

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TENNESSEE BUREAU OFWORKERS' COMPENSATION INTHE COURT OFWORKERS' COMPENSATIONCLAIMS AT COOKEVILLE James Gentry,Jr., Employee, 

### v. DannyRoberts Const., Employer, And Auto Owners, Insurance Carrier. ) DocketNo. 2017-04-0085 ) ) ) StateFile No. 18085-2017 ) ) ) JudgeRobertDurham ) )

EXPEDITED HEARING ORDERDENYINGBENEFITS

This matter came before the undersigned Workers' Compensation Judge on July 25, 2017, upon James Gentry, Jr.'s Request for Expedited Hearing (REH). Mr. Gentry filed the Request to determine if Danny Roberts Construction (DRC) is obligated to provide benefits for his alleged work-related right shoulder injury. The dispositive issue is whetherMr. Gentry's shoulder complaints arose primarily out ofand in the course and scope of his employment with DRC. The Court holds Mr. Gentry failed to submit sufficient evidence to establish he is likely to prove his complaints are primarily due to his employment. Thus, his request is denied atthis time. HistoryofClaim The testimony in this matter provided two accounts ofthe events ofMarch 6 and 7, 2017-that ofMr. Gentryversus other employees ofDRC. Mr. Gentry worked as a truck driver and mechanic for DRC. He testified that on Monday, March 6, he drove to work, parked his truck, and walked across the lot to the shed, passing fellow truck-driver Ron Reagans on the way. He testified that their supervisor, Chris Sides, had already left DRC's facilities on his way to ajob. Upon arriving at the shed, he and another truck driver, Tristan Ramsey, began work on removing atransmission. 1After working for a few hours, Mr. Gentry and Mr. Ramsey encountered a particularly tight bolt, which required Mr. Gentry to insert the handle ofone wrench into anotherwrench in orderto gain extra leverage. While pulling on the second wrench with considerable force, the bolt suddenly gave way, causingMr. Gentry's fully extendedright arm to slam back against his right shoulder. Mr. Gentry claimedhe heard something pop and felt immediate shoulderpain. He yelled out and told Mr. Ramsey that hejusthurthis shoulder. He then tried to remove another bolt but needed Mr. Ramsey's assistance to loosen it. Mr. Gentry went to the front office and told the secretary, Rosemary Hudson, that he injured his shoulder and needed to see a doctor. She told him he would need to talk to Mr. Sides about it. About a half-hour later, Mr. Sides calledMr. Gentry and asked him if he could move some equipment before he wentto the doctor because it was goingto rain. Mr. Gentry agreed, and laterthat afternoon, he and Teresa Hogue, another driver, went to move the equipment. Mr. Gentry asked Ms. Hogue to accompany him because he was afraidhe wouldnot be able to shift gears giventhepain in his shoulder. Mr. Gentry testified that, given the hour after he finished moving the equipment, he decided to wait until the next day to go to the doctor. Upon arriving at work on March 7, he told Mr. Sides, who was sitting in the parking lot in his truck, that he needed medical care for his shoulder. He stated Mr. Sides asked him to oversee some additional mechanical work before doing so and Mr. Gentry agreed. After overseeing the work for a few hours, Mr. Gentry went to Susie Dyer, P.A., and told herhe felt pain in his right shoulder afterhe heard it pop while trying to loosen a bolt. P.A. Dyer diagnosed a shoulder strain, provided him with anti-inflammatories and pain medication, and kepthim offwork until a follow-up on Friday. Upon his return, Mr. Gentry stated he still could not raise his arm above ninety degrees without intense pain and felt like a "knife was stuck in his shoulderjoint." At some point, P.A. Dyer talked with Mr. Roberts, DRC's owner, who informedherMr. Gentry's claim was being denied because he told co-workers he injured his shoulder at home the previous weekend. (Ex. 2.) Mr. Gentry testified he has not worked at any job providing an income since March 7, although he has done minor tasks at home and for his parents. On crossexamination, he denied injuring his shoulder on the weekend before March 6 or telling Mr. Sides or any of his co-workers on March 6 that he injured his right shoulder the previous weekend while cuttingwood for his father. Following Mr. Gentry's testimony, DRC offered a number of witnesses who

2provided a different account ofthe events ofMarch 6 and 7. 1 Mr. Sides testified that on the morning ofMarch 6, he was sitting in his truck before work. Ms. Hogue sat beside him. Mr. Gentry approached his truck window and told him that he hurt his shoulder over the weekend cutting wood for his father and it hurt so badly he had trouble even shifting the gears on his truck. Mr. Sides told him that ifhis shoulder hurt that much, he should probably go to the doctor. Mr. Sides then left to go to another worksite and did not talk with Mr. Gentry the rest ofthe day. He testified he assumed Mr. Gentry went to the doctor and did notknowuntil laterthat day thathe stayedto move the equipment. On cross-examination, Mr. Sides denied Mr. Gentry's assertion that he was not at DRC when Mr. Gentry arrived for work on March 6. He testified that this was his first week as supervisor and he made sure he was there every day to see to it that everyone knew their work assignments. He further disputed Mr. Gentry's assertion that the conversation at his truck window could have occurred on Tuesday rather than Monday; however, he did agree he asked Mr. Gentry on Tuesday to oversee somemechanical work before going to the doctor. Ms. Hogue testified that, on the morning ofMarch 6 before work actually started, she was standing next to her truck when she overheard Mr. Gentry tell Mr. Sides that he injured his shoulder over the weekend. She further stated that Mr. Gentry told her later that afternoonthathe injured his shoulderwhile cutting wood for his father. Mr. Reagans testified that on Monday, March 6, again before work started, he overheard Mr. Gentry tell Mr. Sides that he hurt his shoulder over the weekend while cutting wood for his father. Findings ofFact and Conclusions ofLaw As in all workers' compensation actions, Mr. Gentry, as the employee, has the burden of proof on the essential elements of his claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). However, since this is an expedited hearing, he only has to come forward with sufficient evidence from which the Court can determine he is likely to prevail at a hearing on the merits in order to meet his burden. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). In order to prevail, Mr. Gentry must establish he suffered an accidental injury "caused by a specific incident, or set of incidents, arising primarily out of and in the course and scope ofemployment, and is identifiable by time and place ofoccurrence." Tenn. Code Ann. § 50-6-102(14)(A) (2016). A finding that Mr. Gentry is likely to prevail at a hearing on the merits regarding the compensability ofhis claim first requires

1While Mr. Ramsey was listed on DRC's witness list, it did not call him to testifY. Mr. Gentry did notprovide a witness list. 3the Court to find it likely that he actually injured his right shoulder at work on March 6, 2017. Giventhe testimonyprovided, the Courtis unableto do so. Mr. Gentry flatly testified that he did not tell anyone on March 6 that he hurt his shoulder while cutting wood for his father over the weekend because he had not hurt his shoulderthat weekend. Notone, but three witnesses contradicted this testimony; all three said that Mr. Gentry told them, or they overheard him telling Mr. Sides, that he hurt his shoulder at home over the weekend. While there were some minor variations in their accounts, the Court does not find them sufficient to impeach the witnesses' credibility. Furthermore, Mr. Gentry did not provide any evidence that cast doubt on their testimony otherthanhis own differingversion ofevents. Given the record as a whole, the Court finds the testimony of Mr. Sides, Ms. Hogue, and Mr. Reagans to be more credible regarding the events ofMonday, March 6. As a result, the Courtholds Mr. Gentry is unlikely to prevail at a compensationhearing in establishing his right shoulder complaints arose primarily out of and in the course and scope ofa work-related injury onMarch 6, 2017. ITIS, THEREFORE, ORDEREDthat: 1. Mr. Gentry'srequest for workers' compensationbenefits is denied atthis time. 2. This matter is set for a Scheduling Hearing on September 5, 2017, at 9:30 a.m. Central Time. The parties must call 615-253-0010 ortoll-free at 855-689-9049 to participate in the hearing. Failure to call in may result in a determination ofthe issues withoutyour furtherparticipation. ENTERED THIS THE 1STDAY OFAUGUST, 2017.

# m,Judge Court ofWorkers' Compensation Claims

4APPENDIX Exhibits: 1. Mr. Gentry's affidavit 2

. Records ofP.A. Susie Dyer 3

. Notice ofDenial 4

. Wage Statement 5

. FirstReport ofInjury 6

. Employee Report ofOccupational Injury orIllness 7. Facebookpage datedJune 3 8

. Facebookpagewith comments datedMay 19 Technical Record: 1. Petition for BenefitDetermination 2. Dispute CertificationNotice 3. Request for Expedited Hearing 4. DRC'sWitness List 5

. DRC'sResponse Brief CERTIFICATE OFSERVICE I hereby certify that a true and correct copy of the Expedited Hearing Order Denying Benefits was sent to the following recipients by the following methods of service onthis the 1stday ofAugust, 201 7

. Name Certified Via Via Service sent to: Mail Fax Email James Gentry, Jr. X X James Gentry, Jr. 48 JuddLane Lancaster, TN 38569 Jamesgentryjr72@gmail.com AlainaBeach X Alaina

.beach@mgclaw.com

Pe ny Shr , ClerkofCourt Courtof rkers' Compensation Claims WC.CourtCierk@tn.gov

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