# FILED

TN COURTOF \1\ ORKIRS'OO?i.lPINS

..: UION C1

..**~**



### TENNESSEE BUREAU OFWORKERS' COMPENSATION IN THE COURT OFWORKERS' COMPENSATION CLAIMS AT CHATTANOOGA JamesDucros, Employee, 

### v. MetroRoofing andMetal SupplyCo., Inc., Employer, And Carolina CasualtyIns. Co., Carrier. ) DocketNo.: 2017-01-0228 ) ) 

### ) StateFile No.: 70424-2016 ) ) ) 

### ) JudgeAudreyA. Headrick ) 

### EXPEDITED HEARING ORDER (DECISION ONTHE RECORD)

This matter came before the Court on a Request for Expedited Hearing filed by James Ducros on July 12, 2017. The Court issued a docketing notice on July 28 allowing seven business days for the parties to file objections or submit position statements. The parties filed briefs, but neither side filed objections. The central legal issue is whether Mr. Ducros is likely to establish at a hearing on the merits that Metro Roofing and Metal Supply Co. must designate Dr. Woody Kennedy as his authorized treating physician. This Court finds it needs no additional information to determine this issue and holds Mr. 

### Ducros is not entitledtothe requested benefit at this time. History ofClaim Mr. Ducros, a truck driver, injured his right wrist on September 8, 2016, while pulling shingles for an order. (Ex. 2.) He provided notice to Metro Roofing on the same day, but it did not offer him a panel ofphysicians. Instead, Metro Roofing sent Mr. Ducros to Dodson Avenue Community Health. After receiving conservative treatment from Dr. Naina Sharma, Mr. 

### Ducros asked her to refer him to a specialist. Dr. Sharma agreed and referred him to a "Hand Clinic." (Ex. 5.) Rather than offering Mr. 

### Ducros a panel of hand specialists, Metro Roofing authorized him to see Dr. Kennedy at Hayes Hand Center. (Ex. 5.) Mr. Ducros received 1conservative treatment from Dr. Kennedy until Metro Roofing provided him with a panel on October 18. (Ex. 4.) He stated that Metro Roofing told him his claim "could be denied" ifhe did not select a physician from the panel. (Ex. 1.) Mr. Ducros selected Dr. Peter Lund from the panel and treated with him from October 2016 forward. Metro Roofing also authorized Mr. Ducros to obtain a second opinion on Dr. Lund's recommendation. Mr. Ducros argued Metro Roofing coerced him into signing the late-offered panel based upon its insurance carrier's misrepresentations. He contended Dr. Sharma's referral to "Hand Clinic" was actually a specific referral to Hayes Hand Center, which he asserted is within the same network affiliation as Dr. Sharma. Therefore, Mr. Ducros requested thatthe Court orderDr. Kennedy as his authorizedtreatingphysician. Metro Roofing argued that Dr. Lund became the authorized treating physician when Mr. Ducros selected him from the panel. It pointed out that Mr. Ducros did not select Dr. Kennedy from a panel and Dr. Sharma did not specifically refer Mr. Ducros to him. Therefore, MetroRoofing askedthatthe Court deny Mr. Ducros' request. 

### Findings ofFact and Conclusions ofLaw 

### GeneralLegalPrinciples Mr. Ducros bears the burden of proof on all essential elements ofhis workers' compensation claim. 

### Scott v. Integrity StaffingSolutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). However, he is not required to prove every element of his claim by a preponderance ofthe evidence in order to obtain relief at an expedited hearing. Rather, at an expedited hearing, Mr. Ducros must come forward with sufficient evidence from which this Court might determine that he is likely to prevail at a hearing on the merits. 

### McCordv. AdvantageHuman Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). 

### MedicalBenefits Underthe Workers' Compensation Law, the employer is required to "furnish, free of charge to the employee, such medical and surgical treatment
. . . made reasonably necessary by accident[.]" When an injured employee expresses a need for medical treatment, the employermust provide a panel of"three (3) or more independent reputable physicians, surgeons, chiropractors or specialty practice groups" on a form "from which the injured employee shall select one (1) to be the treating physician." Tenn. Code Ann. § 50-6-204(a) (2016). Here, Metro Roofing provided Mr. Ducros authorized treatment with both Dr. Sharma's clinic and Dr. Kennedy but failed to offer a panel until a month after his injury. 2Mr. Ducros selected Dr. Lund from the panel and received treatment from him since October2016. Metro Roofing alsoprovided Mr. Ducros with a second opinion. Mr. Ducros claimed thatMetro Roofing misled him by stating his claim "could be denied" ifhe chose not to select a physician from the late-offered panel. However, the Courtholds that, while Metro Roofing's delay in offering a panel subjects it to a possible penalty assessment, it does not negate Mr. Ducros' statutory duty to accept the medical benefits offered to him. The Court also notes that, to date, Mr. Ducros has treated with Dr. Lund for almost a year. For these reasons, the Court holds Mr. Ducros is unlikely to prevail at a hearing on the merits in proving that Metro Roofing must designate Dr. Kennedy as his authorized treating physician. Therefore, the Court denies his request for medicalbenefits. 

### Referralto Penalty Unit As noted above, Metro Roofing delayed in offering a panel. The Workers' Compensation Law sets forth the parties' obligations. One ofthese obligations requires employers to timely provide a panel to injured employees who come forward with evidence ofa work-related injury. 

### See Tenn. Code Ann. § 50-6-204 and Tenn. Comp. R. & Regs. 0800-02-01-.25 (2016). An employerwho fails to comply with this rule without good cause couldbe assessed a civilpenalty upto $5,000.00. In light of the one-month delay in failing to provide a panel, the Court refers Metro Roofing to the Penalty Unit for investigation and possible penalty assessment. 

### See Tenn. Comp. R. & Regs. 0800-02-24-.03 (2015); 

### see also Berdnik v. Fairfield Glade Comm. Club, etal., 2017 TN Wrk. Comp. App. Bd. LEXIS 32, *18-19 (May 18, 2017). IT IS, 

### THEREFORE, ORDERED as follows: 1. Mr. Ducros' requested reliefis denied atthis time. 2. The Court refers Metro Roofing to the Penalty Unit for investigation and possible penalty assessment. 3. This matter is set for a Status Hearing on Tuesday, October24, 2017, at 2:30p.m., Eastern Time. You must call 423-634-0164 or toll-free at 855-383-0001 to participate. Failure to call may result in a determination ofthe issues withoutyour participation.

3

### ENTERED this the 16th day ofAugust, 2017. 

# Q**!-J, OO=;;Q,\** _ 

## _kc_g1_ Judge

# A\Jdrti**~** eadrick CourtofWorkers' Compensation Claims

APPENDIX 

### Exhibits: 1. Affidavit ofJames AndrewDucros 2. FirstReport ofInjury 3. Wage Statement 4. Panel 5. Medical records ofHayes Hand Center 6. Medical records ofDodsonAvenue Community Health

Technical record: 1. Petition for BenefitDetermination 2. BriefSupporting Petition for BenefitDetermination 3. Employer's Position Statement 4. Dispute CertificationNotice 5. Request for Expedited Hearing 6. DocketingNotice for On-The-Record Determination 7. Supplemental BriefSupporting Petition for BenefitDetermination1 

### 8. Employer's Expedited Hearing Position Statement

1 The Court did not consider the e-mail attached to Mr. Ducros' supplemental briefas evidence as it was untimely filed. 

### 4

### CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe Expedited Hearing Order was sent to the following recipients by the following methods ofservice on this the 16th day ofAugust, 2017. Name Certified Fax Email Service sentto: Mail R. LewBelvin, X Jew.belvin@mcmahanlawfim1.com Employee Attorney Nicholas S. Akins, X nakins@morganakins.com Ryan

### L. Sarr, X rsarr@morganakins.com EmployerAttorneys ComplianceUnit X WCComQliance.Program@tn.gov

5