FILED 

November 18,2016 

TN COURT OF 

W ORKERS' COMPINSATION 

CL\JMS 

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT CHATTANOOGA 

MARSHALL BEENE, 

Employee, 

v. 

METRO SERVICES, INC., 

Employer, 

And 

ACCIDENT FUND INS. CO., 

Insurance Carrier. 

) Docket No.: 2016-07-0264 

) 

) 

) State File Number: 66494-2014 

) 

) 

) Judge Thomas Wyatt 

) 

EXPEDITED HEARING ORDER FOR ADDITIONAL MEDICAL AND 

TEMPORARY DISABILITY BENEFITS 

Tim.e 7:15 .rn 

This matter came before the undersigned Workers' Compensation Judge on 

November 3, 2016, upon the Request for Expedited Hearing filed by Marshall Beene 

pursuant to Tennessee Code Annotated section 50-6-239 (2015). Mr. Beene seeks 

medical benefits, including authorization to see physicians to whom the authorized 

treating physician (A TP) referred him, as well as temporary disability benefits. Included 

among several issues the Court must decide are the work-relatedness of Mr. Beene's 

alleged cervical spine injury1 and whether he has attained maximum medical 

improvement from his compensable injuries. For the fi llowing reasons the Court 

determines Mr. Beene is entitled to additional medical and temporary disability benefits? 

History of Claim 

Mr. Beene is a sixty-year-old resident of Chattanooga, Hamilton County, 

Tennessee, whom Metro Services employed to perform sheet metal work on a project to 

install a commercial HV AC system. (T.R. 1 at 1.) On August 21, 2014, Mr. Beene 

1 Metro Services accepted the compensability of Mr. Beene's right elbow, rotator cuff and shoulder injuries. It, 

however, challenged the compensability of his alleged cervical spine injury. 

2 The Court has attached a complete listing of the technical record and exhibits admitted at the Expedited Hearing to 

this Order as an appendix. 

1 
suffered injury when he fell from one of the top two rungs of an eight-foot ladder while 

installing ductwork. He testified he fell onto a slotted metal floor in such a manner that 

his "right elbow jammed into his neck." Metro Services and its carrier accepted Mr. 

Beene's injury as compensable. 

After receiving emergent care, Mr. Beene saw orthopedic surgeon Dr. Brandon 

Cincere. (Ex. 5 at 15.) Dr. Cincere noted Mr. Beene complained primarily of right 

elbow pain. Dr. Cincere noted it was difficult to examine Mr. Beene's elbow because of 

the extreme level of pain with which he presented. /d. at 17. 

Later, Dr. Cincere noted Mr. Beene reported a sharp burning pain from the right 

elbow to the neck in addition to severe right elbow pain. (Ex. 5 at 19.) He ordered 

testing and physical therapy. An MRI of the elbow revealed a tear of the superficial 

triceps tendon. An EMG of the right arm revealed moderate damage to the ulnar nerve 

and developing carpal tunnel syndrome. !d. at 2, 4. 

In his November 18, 2014 note, Dr. Cincere recorded that Mr. Beene's physical 

therapist suggested cessation of therapy until Mr.Beene could obtain injections in his 

elbow. (Ex. 5 at 27.) Dr. Cincere referred Mr. Beene to Dr. Gregory Ball to "evaluate 

and treat for pain management." Injections performed by Dr. Ball reduced Mr. Beene's 

elbow pain, but did not improve the symptoms associated with his shoulder and rotator 

cuff injuries.3 (Ex. 5 at 35 39.) Dr. Cincere ordered MRis of Mr. Beene's right shoulder 

and cervical spine. !d. at 29. 

The MRI of the right shoulder showed multiple rotator cuff tears, moderate 

acromioclavicular arthropathy and mild rotator cuff impingement. (Ex. 5 at 10.) The 

cervical spine MRI revealed osteophytes causing canal and bilateral foramina! stenosis at 

the disc spaces between the C3 and C7 vertebrae. /d. at 11. 

In June of 2015, Dr. Cincere surgically repaired Mr. Beene's rotator cuff tears, 

decompressed his right shoulder joint, and performed a suprascapular nerve block. /d. at 

43. At the first post-op visit in August 2015, Mr. Beene reported improvement in his 

shoulder pain, but began reporting recurrence of significant right elbow pain. !d. at 52. 

In September, Dr. Cincere noted Mr. Beene complained of sharp pain radiating 

down his right arm to his hand. (Ex. 5 at 55.) He noted that workers' compensation had 

stopped the physical therapy he ordered for Mr. Beene and stated that "unrealistic WC 

restrictions" had inhibited Mr. Beene's care. !d. at 56. Dr. Cincere referred Mr. Beene 

back to Dr. Ball for "ganglion injections ... and RSD treatment," and referred him to 

spine surgeon Dr. Todd Bonvallet for treatment of his cervical spine. /d. 

3 Dr. Ball's initial treatment note of February 26, 2015, indicated he diagnosed Reflex Sympathetic Dystrophy of the 

right-upper extremity. (Ex. 6 at 4.) Later in his notes, he referred to the diagnosis as Complex Regional Pain 

Syndrome. Id at 25. He appeared to use the diagnoses interchangeably. 

2 
During an October 2015 visit, Mr. Beene reported that workers' compensation had 

not approved the referrals to Drs. Ball and Bonvallet. (Ex. 5 at 58.) Dr. Cincere's 

response was, "WC carrier making it difficult to care for patient, interfering with my 

treatment, I have nothing left to offer the patient." !d. at 60. He referred Mr. Beene's 

ongoing care to Drs. Ball and Bonvallet. !d. 

About the time Dr. Cincere declined to further treat Mr. Beene, the carrier for 

Metro Services obtained a records review IME from orthopedic surgeon Dr. Thomas 

Koenig. (Ex. 1.) Dr. Koenig issued a November 14, 2015 report that, among other 

opinions, stated Mr. Beene "does warrant the prescribed additional 2 to 3 stellate 

ganglion blocks that historically have provided 'great relief" !d. at 10. He also opined 

Mr. Beene would not attain maximum medical improvement until two to three months 

after the last stellate block. 4 !d. 

Despite Dr. Koenig's and Dr. Cincere's treatment recommendations, Mr. Beene's 

treatment ground to a halt. On February 9, 2016, Dr. Cincere rated Mr. Beene's shoulder 

injury for impairment, setting the date of maximum medical improvement for the 

shoulder injury alone at January 19, 2016.5 (Ex. 7.) Mr. Beene saw Dr. Ball on July 21, 

after more than a year's absence from his care. (Ex. 6 at 21, 23.) Dr. Ball opined that 

Mr. Beene needed another series of ganglion stellate blocks, accompanied by aggressive 

physical therapy, to treat the Complex Regional Pain Syndrome in his right-upper 

extremity. !d. at 23, 26. He stated Mr. Beene might attain maximum medical 

improvement in six to nine months from the date of the report "[ w ]ith cooperation with 

the work comp adjuster, and no delays in pursuing appropriate treatment options." !d. at 

23. 

Mr. Beene saw orthopedic surgeon Dr. Todd Bonvallet just once, in December 

2015. (Ex. 2 at 1.) Upon review of the cervical-spine MRI, Dr. Bonvallet diagnosed Mr. 

Beene with degenerative and disc displacement conditions. He took Mr. Beene off work 

"until [the] next follow up appointment." !d. at 5-6. Mr. Beene, however, did not see Dr. 

Bonvallet again because Metro Services' carrier did not approve a follow-up 

appointment. 

Mr. Beene filed his Petition for Benefit Determination on August 8, 2016, seeking 

a panel from which to select an ATP to replace Dr. Cincere; authorization to see Drs. Ball 

and Bonvallet; and additional temporary disability benefits. (T.R. 1 at 1.) After 

4 Additionally, Dr. Koenig opined that, although he felt the diagnosis of Complex Regional Pain Syndrome in Mr. 

Beene's right-upper extremity was equivocal, the condition was work-related if Mr. Beene had it. (Ex. 1 at 8.) He 

stated the conditions in Mr. Beene's cervical spine and, possibly, his rotator cuff tear and right-shoulder arthrosis 

pre-existed Mr. Beene's fall at work. I d. 

5 The records admitted into evidence do not establish that Dr. Cincere provided an impairment rating for Mr. 

Beene's elbow injury or Complex Regional Pain Syndrome. 

3 
mediation failed to resolve the issues between the parties, the mediator issued a Dispute 

Certification Notice. (T.R. 2.) Soon thereafter, Mr. Beene requested an Expedited 

Hearing. (T .R. 3.) 

During the Expedited Hearing, Metro Services agreed to pay for further reasonable 

and necessary treatment of Mr. Beene's right-upper extremity injury, but argued Mr. 

Beene failed to establish the need for additional treatment. It also argued Mr. Beene did 

not establish entitlement to medical benefits for treatment of Mr. Beene's cervical spine 

condition because that condition pre-existed his work injury. Finally, Metro Services 

contended it does not owe additional temporary disability benefits because Dr. Cincere 

rated Mr. Beene's injuries for impairment and placed him at maximum medical 

improvement. 

Findings of Fact and Conclusions of Law 

Mr. Beene bears the burden of proof on all essential elements of his claim. Scott 

v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 

24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015). Because this claim is in the 

posture of an Expedited Hearing, he need not prove every element of his claim by a 

preponderance of the evidence in order to obtain relief. McCord v. Advantage Human 

Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 

(Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). Instead, Mr. Beene must come 

forward with sufficient evidence from which this Court might determine he is likely to 

prevail at a hearing on the merits. !d.; Tenn. Code Ann. § 50-6-239(d)(1)(2015). 

Medical Benefits Issues 

A. Mr. Beene is Entitled to Treatment by Dr. Ball 

The determination of Mr. Beene's claim for additional medical benefits requires 

analysis of complementary provisions of Tennessee Code Annotated section 50-6-204 

(2015), the provision governing an employer's obligation to provide treatment of an 

employee's work-related injury. Section 50-6-204(a)(3)(A)(i) (2015) provides, "[t]he 

injured employee shall accept the medical benefits afforded under this section; provided . 

. . the employer shall designate a group of (3) or more independent reputable physicians, 

surgeons, chiropractors or specialty groups . . . from which the injured employee shall 

select one (1) to be the treating physician." 

While the above-quoted provision establishes that a single ATP will provide the 

treatment for a work injury, the general assembly also foresaw that the ATP would, at 

times, refer the employee for specialized care. Section 50-6-204(a)(3)(A)(ii) (2015) 

authorizes the ATP to refer the employee for specialized care, but requires that the 

4 
employee select a physician from a panel for the referred care if the employer provides 

the panel within three business days from the date of the referral. If the employer does 

not timely provide the employee a panel, the law deems that the employer accepts the 

referral to the physician selected by the A TP. 

Mr. Beene contended that the Court should order Metro Services to authorize 

treatment with Dr. Ball pursuant to the referral Dr. Cincere made in October 2015. In 

considering this issue, the Court first notes that Metro Services previously authorized Dr. 

Cincere's November 2014 referral to Dr. Ball. Dr. Cincere's records establish that he 

again referred Mr. Beene to Dr. Ball in October 2015, and that he communicated this 

referral in the same note in which he communicated his decision to no longer treat Mr. 

Beene. Metro Services submitted no evidence that it offered Mr. Beene a panel of 

physicians following Dr. Cincere's October 2015 referral to Dr. Ball; thus by operation of 

section 50-6-204(a)(3)(A)(ii), Metro Services must accept the referral to Dr. Ball. 

During the Expedited Hearing, Metro Services offered several unpersuasive 

explanations for why it failed to authorize a physician to treat Mr. Beene's work injury 

following Dr. Cincere's decision to decline further treatment. It first contended the fact 

Dr. Cincere opted out of Mr. Beene's treatment meant Mr. Beene did not require further 

treatment. To the contrary, a review of Dr. Cincere's October 2015 note indicates that 

Dr. Cincere opted out of Mr. Beene's treatment because Metro Service's carrier had, in 

Dr. Cincere's mind, improperly interfered with his treatment recommendations. Later in 

the same note, Dr. Cincere referred Mr. Beene to Drs. Ball and Bonvallet, thus indicating 

his opinion that Mr. Beene continued to require treatment of his right-upper extremity 

and neck injuries even though Dr. Cincere would not provide the treatment. In view of 

the above, the Court fmds Dr. Cincere's decision to opt out of Mr. Beene's treatment did 

not provide Metro Services with a valid excuse for failing to authorize additional 

treatment of Mr. Beene's right-upper extremity injury. 

Metro Services also cited its denial of the compensability of Mr. Beene's neck 

injury as explanation for its inaction in authorizing Mr. Beene's ongoing care. While the 

issue regarding the compensability of Mr. Beene's neck injury may have clouded the 

future treatment issue, it did not provide Metro Services an excuse to totally stop Mr. 

Beene's treatment as it did. Dr. Cincere's October 2015 note clearly communicated his 

intent to transfer treatment of Mr. Beene's right-upper extremity injury to Dr. Ball. 

Furthermore, Metro Services' own IME physician established the medical necessity of 

the injection therapy recommended by Dr. Ball. In consideration of the above facts, the 

Court can see no viable reason why Metro Services could not have challenged the referral 

to Dr. Bonvallet while authorizing the referral to Dr. Ball. 

Metro Services also offered the impairment rating given by Dr. Cincere in 

February 2016, in explanation for why it did not authorize Mr. Beene for treatment by Dr. 

Ball. The Court finds nothing associated with Dr. Cincere' impairment rating that 

exempts Metro Services from its obligations to provide ongoing treatment of Mr. Beene's 

5 
right-upper extremity injury. Dr. Cincere's records indicate his rating was confmed to 

Mr. Beene's shoulder injury and are, likewise, clear that he did not rate Mr. Beene's 

elbow injury/Complex Regional Pain Syndrome when he rated the shoulder injury. 

Accordingly, the Court fmds that Dr. Cincere's rating of Mr. Beene's shoulder injury 

does not legitimately explain Metro Services' failure to authorize ongoing treatment of 

Mr. Beene's right-upper extremity injury. 

Dr. Ball's records establish that he recommends additional stellate injections and 

physical therapy to treat the Complex Regional Pain Syndrome in Mr. Beene's right 

upper extremity. Furthermore, Dr. Ball opined Mr. Beene will not attain maximum 

medical improvement from his compensable right-upper extremity injury until several 

months after his treatment protocol begins. 6 In view of the above evidence, the Court 

finds that, at a hearing on the merits, Mr. Beene will likely prevail in establishing that he 

is entitled to see Dr. Ball for treatment of his compensable right-upper extremity injury. 

The Court's decision regarding the compensability of Dr. Ball's treatment resolves 

the issue of who will become Mr. Beene's ATP. Tennessee Code Annotated section 50-

6-204(a)(3)(E) provides that, when an ATP makes a referral for specialty care, "the 

specialist . . . to which the employee has been referred . . shall become the treating 

physician until treatment by the specialist . . . concludes and the employee has been 

referred back to the [ATP][.]" Accordingly, Dr. Ball shall become Mr. Beene's ATP 

until he concludes his treatment and refers Mr. Beene from his care. At that point, Metro 

Services shall provide Mr. Beene a panel of physicians from which he can select an ATP 

who is qualified to provide ongoing treatment of his compensable injuries. 

For the present, however, Dr. Ball's July 2016 note indicated he is willing to treat 

Mr. Beene. Accordingly, Mr. Beene is entitled to the reasonable and necessary treatment 

of his compensable right-upper extremity injury by Dr. Ball and this Court orders Metro 

Services and its carrier to promptly authorize Dr. Ball to provide said treatment. 

Metro Services' and its carrier's inattention to Mr. Beene's treatment needs 

following Dr. Cincere's declination to further treat Mr. Beene troubles the Court. 

Tennessee Code Annotated section 50-6-118(a)(ll) (2015) provides that the Bureau of 

Workers' Compensation "shall establish and collect penalties for ... [f]ailure of any 

employer to timely provide medical treatment made reasonably necessary by the accident 

and recommended by the authorized treating physician[.]" The Court reasonably believes 

Metro Services' failure to authorize Mr. Beene for treatment by Dr. Ball pursuant to Dr. 

Cincere's October 2015 referral may constitute a sufficient failure to justify the 

imposition of a penalty. Upon its issuance, a copy of this Order will be provided to the 

Bureau's Penalty Unit in accordance with Tenn. Comp. R. & Regs., 0800-02-24-.03 

6 Metro Services' own IME doctor opined that the stellate blocks recommended by Dr. Ball were medically 

necessary and Mr. Beene would not attain maximum medical improvement until two to three months after the last 

stellate block occurred. Despite this fact, Metro Services and its carrier did nothing to provide Mr. Beene the 

treatment Drs. Ball and Koenig opined he needed. 

6 
(2015f 

B. Mr. Beene is Not Entitled to Treatment by Dr. Bonvallet 

While Dr. Cincere referred Mr. Beene for cervical-spinal treatment by Dr. 

Bonvallet, the referral, standing alone, does not resolve the issue of whether Mr. Beene is 

entitled to see Dr. Bonvallet under workers' compensation. Instead, the Court finds 

Metro Services is correct in its position that Mr. Beene is not entitled to see Dr. Bonvallet 

for authorized care unless he establishes that his cervical spine condition arose primarily 

out of and in the course and scope of employment. 

The Tennessee Workers' Compensation Law limits its coverage to an injuryincluding an injury caused by a work-related aggravation of a pre-existing conditionthat arose primarily out of and in the course and scope of employment. See Tenn. Code 

Ann. § 50-6-102(14)(A) (2015). In response to a causation letter sent him by counsel for 

Mr. Beene, Dr. Cincere wrote that Mr. Beene's "cervical spine chronic problem [was] 

likely aggravated by [his work] injury." (Ex. 9 at 3.) However, in response to another 

inquiry in the letter as to whether Mr. Beene's fall at work "contribute[d] to more than 

fifty percent (50%) in causing injuries to his cervical spine, considering all causes and 

aggravations of any pre-existing condition," Dr. Cincere marked the line designated 

"No." Based on the statutory definition set forth in section 50-6-102(14), the Court holds 

that Mr. Beene failed to establish he will likely prevail at trial in establishing the workrelatedness ofhis cervical spine injury. 

Mr. Beene contends that, although Dr. Cincere failed to relate the causation of his 

neck injury itself to his injurious incident at work, he did opine that Mr. Beene's fall at 

work aggravated his pre-existing neck condition. In corroboration of the latter opinion of 

Dr. Cincere, Mr. Beene testified he had not experienced neck pain for many years since 

obtaining successful resolution of an injury that occurred many years ago. Based on the 

above evidence, Mr. Beene claims he established entitlement to medical benefits from 

Metro Services to treat the symptoms from the work-related aggravation of his neck 

condition. 

While Mr. Beene's position is inventive, the definitions in the Workers' 

Compensation Law specifically rebut it. Tennessee Code Annotated section 50-6-

102(C)(14) (2015) provides that, "[a]n injury causes ... the need for medical treatment 

only if it has been shown to a reasonable degree of medical certainty that it contributed 

more than fifty percent (50%) in causing the ... need for medical treatment, considering 

all causes." (Emphasis added.) In view of Dr. Cincere's opinion that Mr. Beene's neck 

condition did not arise primarily out of and in the course and scope of his employment, 

the Court holds Mr. Beene is not entitled to any benefits, including medical benefits, for 

7

"1n addition to referrals made by a workers' compensation judge, any [Bureau] employee may refer any person or 

entity to the penalty program for the assessment of a civil penalty whenever the referring employee believes that 

there may have been a violation of the [Bureau's] rules or the Tennessee Workers' Compensation Act." 

7 
that condition at this time. 

Temporary Partial Disability Benefits Issues 

During the Expedited Hearing, Mr. Beene contended he had not received 

temporary disability benefits since March 3, 2016.8 The parties stipulated that Mr. 

Beene's average weekly wage was $1,271.41, thus the applicable weekly compensation 

rate is $847.60. 

Tennessee Code Annotated section 50-6-207(2) (2015) provides for temporary 

partial disability benefits. In Jones v. Crencor Leasing and Sales, No. 2015-01-0332, 

2015 TN Wrk. Comp. Bd. LEXIS 48, at *7-8 (Tenn. Workers' Comp. App. Bd. Dec. 11, 

2015), the Tennessee Workers' Compensation Appeals Board, citing Simpson v. 

Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978), held, "[a]n injured worker is eligible for 

temporary disability benefits if: (1) the worker became disabled from working due to a 

compensable injury; (2) there is a causal connection between the injury and the inability 

to work; and (3) the worker established the duration of the period of disability." The 

Appeals Board further held in Jones that an injured worker may qualify for temporary 

partial disability benefits if the employer cannot accommodate the restrictions under 

which a physician released an employee to return to work or provide the restricted 

employee with earnings that equal or exceed the pre-injury average weekly wage. !d. at 

*7-8. 

The Court holds that, at a hearing on the merits, Mr. Beene will likely prevail in 

establishing his entitlement to temporary partial disability benefits. As indicated above, 

the Court fmds Mr. Beene's right-upper extremity injury arose primarily out of and in the 

course and scope of employment. In his response to a June 20, 2016 letter from Mr. 

Beene's counsel, Dr. Cincere indicated he would restrict Mr. Beene's activities "while 

receiving additional treatment" of his work injury to "no use (lifting, reaching, repetitive) 

of [his] right upper extremity." (Ex. 9 at 2.) He further indicated he would not place Mr. 

Beene at maximum medical improvement while undergoing the additional medical 

treatment.9 In view of the above the Court boJds Mr. Beene is entitled to temporary 

partial disability benefits in the amount of $847.60 per week10 from March 4, 2016, until 

Dr. Ball releases him to return to work, or determines he has attained maximum medical 

improvement for the right-upper extremity injury. 

8 Metro Services did not dispute this contention. 

9 As indicated earlier, Dr. Ball stated he would not place Mr. Beene at maximum medical improvement until six to 

nine months after his treatment protocol began. Also, Dr. Koenig stated that the date of maximum medical 

improvement would occur two to three months after Mr. Beene received the recommended stellate blocks. 

10 Mr. Beene testified he has not worked since the date of injury due to pain from his work injuries. The Court fmds 

this testimony credible. Accordingly, under the formula for calculating temporary partial disability benefits set forth 

in Tennessee Code Annotated section 50-6-207(2)(B) (2015), the applicable compensation rate for Mr. Beene's 

temporary partial disability benefits is the same as it was for temporary total disability benefits. 

8 
IT IS, THEREFORE, ORDERED as follows: 

1. Metro Services and its carrier shall provide Mr. Beene additional medical benefits, 

to be initiated by promptly authorizing treatment by Dr. Gregory Ball. 

2. Mr. Beene's claim for medical benefits in the form of authorized treatment by Dr. 

Todd Bonvallet is denied. 

3. Metro Services shall pay Mr. Beene temporary partial disability benefits in the 

amount of $84 7.60 from March 4, 2016, to the date of the issuance of this order, 

for a total payment of accrued benefits of $31 ,3 62 .31. It shall continue to pay Mr. 

Beene temporary partial disability benefits until Dr. Ball or a newly-designated 

ATP places Mr. Beene at maximum medical improvement from his work injuries. 

4. Should counsel for Mr. Beene seek an attorney's fee based on the benefits ordered 

herein, he shall file a fee petition with supporting affidavit with the the Court 

Clerk. 

5. This matter is set for a Status Hearing on February 6, 2017, at 10:00 a.m. 

Eastern Time. 

6. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance 

with this Order must occur no later than seven business days from the date of entry 

of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3) 

(2015). The Insurer or Self-Insured Employer must submit confirmation of 

compliance with this Order to the Bureau by email no later than the seventh 

business day after entry of this Order. Failure to submit the necessary 

confmnation within the period of compliance may result in a penalty assessment 

for non-compliance. For questions regarding compliance, please contact the 

Workers' Compensation Penalty Unit via email WCCompliance.Program@tn.go 

or by calling (615) 253-1471 or (615) 532-1309. 

ENTERED this the 18th day of November, 

Judge Thomas Wyatt 

Court of Workers' Compensation Claims 

9 
Status Hearing: 

A Status Hearing has been set with Judge Thomas Wyatt, Court of Workers' 

Compensation Claims. You must call toll-free at 855-747-1721 or 615-741-3061 to 

participate in the Status 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. 

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 or file 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 

10 
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 

any, with the Court Clerk within five business days of the 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. 

11 
APPENDIX 

The Court admitted the following evidence into the record during the Expedited Hearing: 

Exhibits: 

1. Medical records of Dr. Thomas M. Koenig; 

2. Medical records of Dr. Todd Bonvallet/Spine Surgery Associates; 

3. MRI report of Dr. Grant Huntzinger/Chattanooga Outpatient Center; 

4. EMG/NCS report of Dr. James Little/Southern Rehabilitation Group; 

5. Medical records of Dr. Brandon Cincere/OrthoSouth; 

6. Medical records of Dr. Gregory Ball/Consultants in Pain Management; 

7. Final Medical Report (C-30A) of Dr. Brandon Cincere; 

8. Wage Statement (C-41); 

9. Responses of Dr. Brandon Cincere to June 20, 2016 letter from Attorney Lew 

Belvin; and 

10. Admitted for Identification only: Complete set of medical records pertinent to Mr. 

Beene's treatment.

11 

Technical record: 12 

1. Petition for Benefit Determination, filed August 8, 2016; 

2. Dispute Certification Notice, filed September 28, 2016; 

3. Request for Expedited Hearing, filed October 11, 2016; 

4. Affidavit ofMarshall Beene, filed October 11, 2016; 

5. Mr. Beene's Brief Supporting Petition for Benefit Determination, filed September 

28,2016;and 

6. Metro Services, Inc.'s Position Statement, filed September 28, 2016. 

11 Counsel for Mr. Beene introduced this set of records, comprising more than 379 pages, to make sure the Court had 

complete sets of the records of Drs. Cincere, Ball and Bonvallet. Counsel for Metro Services stipulated to the 

authenticity and admissibility of the entire set of records. The Court admitted Exhibit I 0 for identification purposes 

for the sole purpose of supplementing the exhibits containing the records of Drs. Cincere, Ball and Bonvallet. The 

Court removed records from Exhibit 10 and placed them in Exhibits 5 and 6, so that those exhibits would include 

complete sets of, respectively, Drs. Cincere's and Ball's records. The Court did not consider the other records in 

Exhibit 10 and will not include them as evidence admitted during the Expedited Hearing. 

12 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. 

12 
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 18th day 

ofNovember, 2016. 

Name Via Email Service sent to: 

Lew Belvin, X Lew.belvin@mcmahanlawfim1.com 

Attorney for Employee 

Gordon Aulgur, X Gordon@accidentfund.com 

Attorney for Employ_er 

Penalty Program X WCComoliance.Program@tn.gov 

Court of Workers' Compensation Claims 

13