FILED 

TNOOURTOJ' 

" 'ORJiiRS' CO:&fl'INSA.TION 

CLAIMS 

TENNESSE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT CHATTANOOGA 

Billy Gentry, 

Employee, 

v. 

Purdy Brothers Trucking, 

Employer, 

And 

Midwest Employers Casualty. 

) Docket No.: 2016-01-0268 

) 

) 

) State File No.: 84117-2015 

) 

) 

) Judge Audrey A. Headrick 

) 

EXPEDITED HEARING ORDER 

Time· 10:16 .. :UI 

This matter came before the Court on October 31, 2016, on a Request for 

Expedited Hearing filed by Billy Gentry pursuant to Tennessee Code Annotated section 

50-6-239 (20 15). The central legal issue is whether Mr. Gentry is likely to prevail at a 

hearing on the merits that he sustained a right-knee injury arising primarily out of and in 

the course and scope of his employment with Purdy Brothers. If so, the question turns to 

whether he is entitled to medical and temporary disability benefits. For the reasons set 

forth below, the Court holds Mr. Gentry is not likely to prevail at a hearing on the merits 

in proving his right-knee injury arose primarily out of and in the course and scope of his 

employment. 1 

History of Claim 

In this case, Mr. Gentry, an over-the-road truck driver, sustained a right-knee 

injury when he stepped in a hole and twisted his knee while walking around inspecting 

trailers. (Ex. 5.) According to the Petition for Benefit Determination (PBD) and Mr. 

Gentry's affidavit, he stated the accident occurred on March 24,2015. 

At the Expedited Hearing, the proof focused on when Mr. Gentry reported the 

right-knee injury, and when and how it occurred. Regarding Mr. Gentry reporting his 

injury, he testified he told Charles "Chuck" Salyer, his driver manager, on March 24. 

1 A complete listing of the technical record and exhibits is attached to this Order as an appendix. 

1 
However, Mr. Gentry acknowledged he did not actually tell him about his knee. Mr. 

Salyer testified Mr. Gentry never reported a knee injury to him. Mr. Gentry also stated 

he told Deb Ferguson, Purdy Brothers' insurance coordinator, he injured his knee on the 

day he was hurt. In her affidavit, Ms. Ferguson stated the first time that Mr. Gentry 

mentioned his knee to her was on October 16, 20 15. (Ex. 7.) 

As to when his injury occurred, Mr. Gentry was adamant that he injured his right 

knee on March 24. He testified he hurt his right knee at 3:00 a.m. and then later that day 

hurt his right arm.Z Ms. Ferguson testified he told her on October 16, that he injured his 

right knee on April 24, when he was inspecting a trailer and slid in gravel. ld. To prove 

the date of his knee injury, Mr. Gentry produced and played a secretly recorded 

conversation he had with Ms. Ferguson. Although he stated his phone "automatically 

records" conversations, the recording began with the sound of a door shutting before the 

call connected. Mr. Gentry stated the conversation occurred sometime between March 

and July prior to the October 28 denial of his claim. (Ex. 8.) However, Mr. Gentry and 

Ms. Ferguson wished each other a "Happy Thanksgiving" during the call. During the 

call, Mr. Gentry told Ms. Ferguson she had given Mr. Richardson the wrong date for his 

knee injury because he hurt his knee in March. 

Mr. Gentry also played a secretly recorded conversation he had with Rodney 

Richardson, a claims specialist for Purdy Brothers' third-party administrator, which 

occurred after he received the October 28 denial of his claim. (Ex. 8.) During the call, 

Mr. Richardson reminded Mr. Gentry he had previously told him during his October 26 

recorded statement tJmt he was hurt on April 24.3 (Ex. 6.) Mr. Richardson told Mr. 

Gentry that Purdy Brothers records indicated he was not working on April 24. The 

recording reflects that Mr. Gentry agreed with Mr. Richardson stating, "That was the day 

I got hurt, yeah." Further, the affidavit of Ms. Ferguson indicates Mr. Gentry was not 

working on April 24, because he was receiving temporary total disability benefits for his 

March 24 right-arm injury. (Ex. 7 .) 

There was also proof that addressed how Mr. Gentry's right-knee injury occurred. 

When Mr. Gentry provided a recorded statement to Mr. Richardson, he stated he was 

walking around a trailer, stepped into a hole, and twisted his right leg. (Ex. 6.) When he 

reported the knee injury to Ms. Ferguson on October 16, he told her he was inspecting a 

trailer and slid in the gravel, straining his knee. (Ex. 7.) 

2 Mr. Gentry previously settled his right-elbow injury sustained on March 24. 3 During the recorded statement, Mr. Gentry stated he had written down the date of his injury and stated it was the 

"last of April, the 24111 of [sic] 25111 ." /d. He initially stated the injury occurred at "10:00, II o'clock" in the 

morning. !d. Later, he indicated the injury occurred at 4:00a.m. when it was dark and raining. !d. 

2 
The medical records reflect that Mr. Gentry first complained of a right-knee 

problem on July 21, when he saw Dr. Sigrid Johnson at Sweetwater Family Medicine.4 

(Ex. 1.) He complained of knee pain and swelling but did not mention an injury. He next 

complained of a knee problem on August 10, when he saw Dr. Shane Asbury, his 

authorized physician for his March 24 right-elbow injury. Dr. Asbury noted that his 

complaint of right-knee swelling "[ o ]ver the past month" was "not related to his 

Workers' comp. claim." (Ex. 2.) He also noted Mr. Gentry "has no injuries to this 

knee." ld. Dr. Asbury ultimately diagnosed Mr. Gentry with a medial meniscus tear and 

performed surgery in August, noting he had a "several week history of mechanical 

symptoms in the right knee after a twisting injury." ld. The following month, Mr. 

Gentry told his physical therapist he injured his knee getting out of a chair in March. 

(Ex. 3.) Mr. Gentry disputed the physical therapy record and stated he told them when 

and how he injured his knee at work. 

Mr. Gentry seeks medical benefits and temporary disability benefits for his rightknee condition. He argued he hurt his knee at work on March 24, 2015. Although Mr. 

Gentry acknowledged that there were "some dates messed up on the time of the injury," 

he was confident that the taped conversations established he injured his knee on March 

24. 

Purdy Brothers argued the tapes Mr. Gentry played for the Court only demonstrate 

that he has no credibility. In addition to the discrepancies that exist regarding the date, 

time, and mechanism of injury, the tapes impeached Mr. Gentry. Although Mr. Gentry 

claimed his telephone automatically recorded phone calls, the sounds of a door opening 

and shutting before the call begins refute his assertion. Purdy Brothers also pointed out 

the numerous discrepancies that existed in the statements made by Mr. Gentry to its 

company representatives, to its third-party administrator, and to his medical providers. 

Purdy Brothers further argued Mr. Gentry did not come forward with sufficient 

evidence for the Court to establish that he is likely to prevail at a hearing on the merits. It 

argued Mr. Gentry failed to provide timely notice of an alleged right-knee injury until 

October 16, 2015. When he provided notice to Purdy Brothers, he stated his injury 

occurred on April 24. However, Mr. Gentry was off work during that time receiving 

temporary disability benefits for a compensable right-arm injury. Additionally, Purdy 

Brothers argued Mr. Gentry failed to produce any medical proof showing that his knee 

injury arose primarily out of and in the course and scope of his employment. Therefore, 

Purdy Brothers requested that the Court deny Mr. Gentry's request for benefits. 

4 In addition to numerous discrepancies that exist regarding Mr. Gentry's alleged right-knee injury, the Court notes 

the medical records reflect that he requested narcotic medication from Dr. Johnson. She declined to prescribe any 

narcotics since the database indicated he was routinely receiving them from his orthopedic physician. During the 

hearing, Mr. Gentry denied asking her for narcotics. 

3 
Motion to Dismiss 

In this case, Purdy Brothers moved for an involuntary dismissal under Rule 

40.02(2) of the Tennessee Rules of Civil Procedure at the close of Mr. Gentry's proof. 

This Court took Purdy Brothers' motion under advisement and told the parties that the 

Court would set forth its findings in this Expedited Hearing Order. 

In Burchfield v. Renfree, 2013 Tenn. App. LEXIS 685 (Tenn. Ct. App. Oct. 18, 

20 13 ), the Court of Appeals reiterated the principles regarding directed verdicts: 

The rule for detennining a motion for directed verdict requires the trial 

judge and the appellate courts to look to all of the evidence, take the 

strongest, legitimate view of the evidence in favor of the opponent of the 

motion and allow all reasonable inferences from it in his favor. The court 

must disregard all countervailing evidence and if there is then any dispute 

as to any material, determinative evidence or any doubt as to the 

conclusions to be drawn from the whole evidence, the motion must be 

denied. The court may grant the motion only if, after assessing the 

evidence according to the foregoing standards, it determines that reasonable 

minds could not differ as to the conclusions to be drawn from the evidence. 

!d. at *86-87 (internal citations omitted). In this case, the Court finds that reasonable 

minds can differ as to the conclusions to be drawn from the evidence. 

Additionally, a motion for involuntary dismissal is rarely appropriate in a workers' 

compensation case, inasmuch as a reversal of the trial court's ruling results in additional 

proceedings and undue delay. See Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 

137-38 (Tenn. 2001); see also Bldg. Materials Corp. v. Britt, 211 S.W.3d 706 (Tenn. 

2007). The trial court should instead hear the entire case and make appropriate findings 

of fact, and alternative findings when necessary, for appellate review. !d. 

Moreover, Purdy Brothers moved for an involuntary dismissal at the Expedited 

Hearing stage. The Expedited Hearing results in an Expedited Hearing Order, or an 

interlocutory order, which is not a final order. See Tenn. Code Ann. § 50-6-239(d)(3) 

(20 15). Interlocutory orders are subject to modification at any time prior to the 

Compensation Hearing. !d. 

For these reasons, this Court concludes that an involuntary dismissal is not 

warranted. Accordingly, the Court denies Purdy Brothers' motion for involuntary 

dismissal at this time. 

Findings of Fact and Conclusions of Law 

Having addressed the motion to dismiss, the Court will now analyze the evidence 

under the applicable standard of proof. Mr. Gentry bears the burden of proof on all 

4 
essential elements of his workers' compensation claim. Scott v. Integrity Staffing 

Solutions, No. 2015-01-0055, 2015 1N Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. 

Workers' Comp. App. Bd. Aug. 18, 2015). 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. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 

1N Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 

20 15). Rather, at Expedited Hearing, Mr. Gentry must come forward with sufficient 

evidence from which this Court might determine that he is likely to prevail at a hearing 

on the merits. Id. 

This lesser evidentiary standard does not relieve Mr. Gentry of the burden of 

producing evidence of an injury by accident that arose primarily out of and in the course 

and scope of employment at an Expedited Hearing, but "allows some relief to be granted 

if that evidence does not rise to the level of a 'preponderance of the evidence."' 

Buchanan v. Car/ex Glass Co., No. 2015-01-0012, 2015 1N Wrk. Comp. App. Bd. 

LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). "An injury occurs in 

the course of employment if 'it takes place within the period of the employment, at a 

place where the employee reasonably may be, and while the employee is fulfilling work 

duties or engaged in doing something incidental thereto."' Hubble v. Dyer Nursing 

Home, 188 S. W.3d 525, 534 (Tenn. 2006) (citing Blankenship v. Am. Ordnance Sys., 

LLC, 164 S.W.3d 350, 354 (Tenn. 2005)). 

The Court holds Mr. Gentry failed to establish that he is likely to prevail at a 

hearing on the merits that he sustained a right-knee injury arising primarily out of and in 

the course and scope of his employment with Purdy Brothers. Although Mr. Gentry was 

adamant during the Expedited Hearing that he injured his knee at work on March 24, 

2015, the proof shows he provided contradictory statements during his recorded 

statement, during the secretly recorded telephone call he had with Mr. Richardson, and 

during office visits with various medical providers. The evidence demonstrates there are 

numerous discrepancies and contradictions made by Mr. Gentry regarding the date, the 

time, and the mechanism of his alleged injury, which casts serious doubt on his 

credibility. Further, there is no medical proof indicating that Mr. Gentry sustained a 

work-related, right-knee injury. 

Accordingly, the Court holds Mr. Gentry is unlikely to prevail at a hearing on the 

merits in proving he sustained a right-knee injury arising primarily out of and in the 

course and scope of his employment with Purdy Brothers. Therefore, the Court denies 

his request for medical and temporary disability benefits. 

5 
IT IS, THEREFORE, ORDERED as follows: 

1. Mr. Gentry's requested relief is denied at this time. 

2. This matter is set for a Status Hearing on January 27,2017, at 10:00 a.m., Eastern 

Time. 

ENTERED this the 16th day of November, 2016. 

Status H anng: 

A Status Hearing has been set on January 27, 2017, at 10:00 a.m. Eastern Time, 

with Judge Audrey A. Headrick, Court of Workers' Compensation Claims. You 

must call 423-634-0164 or toll free at 855-383-0001 to participate in the Initial 

Hearing. 

Please Note: You must call in on the scheduled date/time to 

participate. Failure to call in may result in a determination of the issues without 

your further participation. 

6 
Right to Appeal: 

Tennessee Law allows any party who disagrees with this Expedited Hearing Order 

to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of 

Appeal, you must: 

1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal." 

2. File the completed form with the Court Clerk within seven business days of the 

date the Workers' Compensation Judge entered the Expedited Hearing Order. 

3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party. 

4. The appealing party is responsible for payment of a filing fee in the amount of 

$75.00. Within ten calendar days after the filing of a notice of appeal, payment 

must be received by check, money order, or credit card payment. Payments can be 

made in person at any Bureau office or by United States mail, hand-delivery, or 

other delivery service. In the alternative, the appealing party may file an Affidavit 

of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing 

fee. The Affidavit of Indigency may be filed contemporaneously with the Notice 

of Appeal or must be filed within ten calendar days thereafter. The Appeals Board 

will consider the Affidavit of Indigency and issue an Order granting or denying 

the request for a waiver of the filing fee as soon thereafter as is 

practicable. Failure to timely pay the filing fee ot· fiJe the Affidavit of 

Indigency in accordance with this section shall result in dismissal of the 

appeal. 

5. The parties, having the responsibility of ensuring a complete record on appeal, 

may request, from the Court Clerk, the audio recording of the hearing for the 

purpose of having a transcript prepared by a licensed court reporter and filing it 

with the Court Clerk within ten calendar days of the filing of the Expedited 

Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of 

the evidence within ten calendar days of the filing of the Expedited Hearing 

Notice of Appeal. The statement of the evidence must convey a complete and 

accurate account of what transpired in the Court of Workers' Compensation 

Claims and must be approved by the workers' compensation judge before the 

record is submitted to the Clerk of the Appeals Board. 

6. If the appellant elects to file a position statement in support of the interlocutory 

appeal, the appellant shall file such position statement with the Court Clerk within 

five business days of the expiration of the time to file a transcript or statement of 

the evidence, specifying the issues presented for review and including any 

argument in support thereof. A party opposing the appeal shall file a response, if 

7 
any, with the Court Clerk within five business days ofthe filing of the appellant's 

position statement. All position statements pertaining to an appeal of an 

interlocutory order should include: ( 1) a statement summarizing the facts of the 

case from the evidence admitted during the expedited hearing; (2) a statement 

summarizing the disposition of the case as a result of the expedited hearing; (3) a 

statement of the issue(s) presented for review; and (4) an argument, citing 

appropriate statutes, case law, or other authority. 

8 
APPENDIX 

Exhibits: 

1. Medical records of Sweetwater Family Medicine; 

2. Medical records of Dr. Shane Asbury; 

3. Physical therapy records of Monroe Physical Therapy; 

4. Medical bills (For Identification Purposes); 

5. Affidavit of Billy Gentry; 

6. Affidavit of Rodney Richardson; 

7. Affidavit of Deb Ferguson; and, 

8. Form C-23 Notice ofDenial of Claim for Compensation. 

Technical record: 5 

1. Petition for Benefit Detennination, filed April 12, 20 16; 

2. Dispute Certification Notice with additional disputed tssues and defenses 

attached, filed June 8, 20 16; 

3. Request for Expedited Hearing, filed July 1, 2016; 

4. Response of Respondents to Petitioner's Claim for Medical Benefits and 

Temporary Disability Benefits, filed July 8, 2016; 

5. Notice of Expedited Hearing, issued August 25, 2016; 

6. Amended Notice of Expedited Hearing, issued September 1, 2016; and, 

7. Notice of Filing of Affidavits of Deb Ferguson and Rodney Richardson, filed 

July 8, 2016. 

5 The Court did not consider attachments to Technical Record filings unless admitted into evidence during the 

Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as 

allegations unless established by the evidence. 

9 
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 November, 2016. 

Name Certified Via Via Service sent to: 

Mail Fax Email 

Billy Gentry, X 740 Little Notchy Creek Road 

Self-Represented Madisonville, TN 3 73 54 

Employee 

Steve Collins, X scoll ins@sgicerfirm.com 

Employer's Attorney 

wc.cou lerk@tn.gov 

~:;TCLERK 

10