Ducros, James v. Metro Roofing and Metal Supply Co. , 2017 TN WC 154 ( 2017 )

FILED
TN COURTOF
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TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
James Ducros, ) Docket No.: 2017-01-0228
Employee, )
v. )
Metro Roofing and Metal Supply Co., ) State File No.: 70424-2016
Inc., )
Employer, )
And )
Carolina Casualty Ins. Co., ) Judge Audrey A. Headrick
Carrier. )
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
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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.
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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.
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ENTERED this the 16th day of August, 2017.
Q !-J,~OO=;;Q,\__kc_g1_
Judge A\Jdrti ~ ea drick
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
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The Court did not consider the e-mail attached to Mr. Ducros' supplemental brief as evidence as it was untimely
filed.
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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
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