FILED 

TN COURTOF 

\1\ ORKIRS' OO?i.lPINS .. :U IO N 

C1 .. ~ 

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT CHATTANOOGA 

James Ducros, 

Employee, 

v. 

Metro Roofing and Metal Supply Co., 

Inc., 

Employer, 

And 

Carolina Casualty Ins. Co., 

Carrier. 

) Docket No.: 2017-01-0228 

) 

) 

) State File No.: 70424-2016 

) 

) 

) 

) Judge Audrey A. Headrick 

) 

EXPEDITED HEARING ORDER 

(DECISION ON THE 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 entitled to the requested benefit at this time. 

History of Claim 

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 of physicians. 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 

1 
conservative 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" if he 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 that the Court order Dr. Kennedy as his authorized treating physician. 

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, Metro Roofing asked that the Court deny Mr. Ducros' request. 

Findings of Fact and Conclusions of Law 

General Legal Principles 

Mr. Ducros bears the burden of proof on all essential elements of his workers' 

compensation claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. 

LEXIS 24, at *6 (Aug. 18, 20 15). However, he is not required to prove every element of 

his claim by a preponderance of the 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. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. 

LEXIS 6, at *7-8, 9 (Mar. 27, 2015). 

Medical Benefits 

Under the 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 employer must 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. 

2 
Mr. Ducros selected Dr. Lund from the panel and received treatment from him since 

October 2016. Metro Roofing also provided Mr. Ducros with a second opinion. 

Mr. Ducros claimed that Metro Roofing misled him by stating his claim "could be 

denied" if he chose not to select a physician from the late-offered panel. However, the 

Court holds 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 

medical benefits. 

Referral to Penalty Unit 

As noted above, Metro Roofing delayed in offering a panel. The Workers' 

Compensation Law sets forth the parties' obligations. One of these obligations requires 

employers to timely provide a panel to injured employees who come forward with 

evidence of a work-related injury. See Tenn. Code Ann. § 50-6-204 and Tenn. Comp. R. 

& Regs. 0800-02-01-.25 (2016). An employer who fails to comply with this rule without 

good cause could be assessed a civil penalty up to $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 (20 15); see also Berdnik v. Fairfield Glade 

Comm. Club, et al., 2017 TN Wrk. Comp. App. Bd. LEXIS 32, *18-19 (May 18, 2017). 

IT IS, THEREFORE, ORDERED as follows: 

1. Mr. Ducros' requested relief is denied at this 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, October 24, 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 of the issues without your 

participation. 

3 
ENTERED this the 16th day of August, 2017. 

Q !-J, OO=;;Q,\ _ _kc_g1_ 

Judge A\Jdrti ~ eadrick 

Court of Workers' Compensation Claims 

APPENDIX 

Exhibits: 

1. Affidavit of James Andrew Ducros 

2. First Report of Injury 

3. Wage Statement 

4. Panel 

5. Medical records of Hayes Hand Center 

6. Medical records of Dodson Avenue Community Health 

Technical record: 

1. Petition for Benefit Determination 

2. Brief Supporting Petition for Benefit Determination 

3. Employer's Position Statement 

4. Dispute Certification Notice 

5. Request for Expedited Hearing 

6. Docketing Notice for On-The-Record Determination 

7. Supplemental Brief Supporting Petition for Benefit Determination 1 

8. Employer's Expedited Hearing Position Statement 

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

filed. 

4 
CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the Expedited Hearing Order was 

sent to the following recipients by the following methods of service on this the 16th day 

of August, 201 7. 

Name Certified Fax Email Service sent to: 

Mail 

R. Lew Belvin, X Jew. bel vi n@mcmahanlawfim1.com 

Employee Attorney 

Nicholas S. Akins, X nakins@morganakins.com 

Ryan L. Sarr, X rsarr@morganakins.com 

Employer Attorneys 

Compliance Unit X WCComQliance.Program@tn.gov 

5