Gentry, Charles v. Arapazuma, Inc.

FILED
Apr 27, 2022
03:26 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Charles Gentry, ) Docket No. 2019-06-2140
Employee, )
v. )
Arapazuma, Inc., ) State File No. 196998-2019
Employer, )
And )
Continental Nat’l Ins. Co., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER GRANTING REQUESTED RELIEF
In this accepted claim, Mr. Gentry seeks an order for medical benefits in two
respects: additional physical therapy and a mileage reimbursement.
At an April 20 expedited hearing, Arapazuma contended that the physical therapy
is not medically necessary, relying on a denial from utilization review and the Medical
Director’s agreement with that decision. As to the mileage, Arapazuma argued that Mr.
Gentry’s routes to medical appointments were fewer than fifteen miles.
The Court holds that Arapazuma did not overcome the presumption of medical
necessity attached to the referral physician’s recommendation, so Mr. Gentry is entitled to
the requested physical therapy. As to the mileage, the Court accepts Mr. Gentry’s
calculation regarding trips for physical therapy and holds that Arapazuma must reimburse
him for those journeys, as well as those it agreed to pay on the record.
History of Claim
Mr. Gentry injured his left shoulder while working for Arapazuma on July 16, 2018,
resulting in him filing a petition for benefit determination a few months later. A mediator
issued a dispute certification notice in January 2020 listing medical benefits as one of
several issues. This is the second expedited hearing, and the Court has also resolved several
disputes by motions.
1
As to the present issues, Mr. Gentry treated with an authorized physician, who
referred him directly to Dr. Matthew Willis in August 2021. Arapazuma accepted the
referral.
At the first visit, Dr. Willis recommended a reverse shoulder arthroplasty, which he
performed in November aided by a physician assistant, Austin Bragdon. Afterward, Mr.
Gentry participated in physical therapy seven times in December 2021 and three times in
early January 2022.
At a January 11, 2022 appointment, Dr. Willis wrote that Mr. Gentry should
“continue therapy.” Mr. Bragdon wrote the order for physical therapy, twice a week, for
six weeks. Mr. Gentry attended eleven more sessions through February 17, for a total of
twenty-one visits.
Mr. Gentry returned to the referral doctor on February 22. The records state that the
provider was “Dr. Willis,” but they are signed by Mr. Bragdon. The records call for
additional physical therapy, twice per week, for eight weeks. The reason given was
“[p]resence of left artificial shoulder joint.”
Arapazuma did not approve the third round of physical therapy but instead requested
utilization review after the February visit. The utilization review physician, Dr. Sean
Lager, reviewed medical records beginning with the first visit to Dr. Willis in August 2021
and two visits with the physical therapist. As is customary in utilization review, he did not
examine Mr. Gentry.
Dr. Lager did not certify the additional physical therapy. His report gave the
rationale below:
Mr. Gentry requested an expedited hearing and appealed this decision to the Medical
Director. The Medical Director’s decision was not released at the time of the hearing, but
2
by Court order Arapazuma late-filed it.1 The Medical Director, Dr. Robert Snyder, agreed
with the denial. He wrote, “The medical records do not reflect the reasoning in light of
current measurements and a home exercise program.”
Mr. Gentry argued that he never saw Mr. Bragdon. He testified, without objection,
that on April 19, he returned to Dr. Willis, who recommended a third round of physical
therapy. Mr. Gentry testified that this was ordered “because it’s [the shoulder] not up to
the full strength he’s [Dr. Willis] thinking it should be.”
Concerning the mileage request, Arapazuma announced at the hearing that it agreed
to reimburse Mr. Gentry for trips to Concentra and Summit Medical Center and had already
posted a check. Sean O’Neill, Team Leader for the Southern Team adjusters, testified that
the amount owed for travel to these providers is $305.
The parties contested Mr. Gentry’s requested reimbursement for travel to Hughston
Clinic Orthopaedics, Urban Physical Therapy, and Stonecrest Medical Center. Mr. Gentry
filed a copy of a form given to him by the third-party administrator documenting his trips,
which his wife handwrote but he signed. The form, dated February 26, 2022, states that
the roundtrip miles for each visit to Hughston Clinic Orthopaedics was 28; 32 to Urban
Physical Therapy; and 30 to Stonecrest Medical Center.
Mr. Gentry testified that those figures represented the actual roundtrip mileage that
he drove. He acknowledged that, from what his wife wrote on the form, the Hughston
Clinic Orthopaedics journeys were fewer than fifteen miles one-way, and the Stonecrest
Medical Center trip was exactly thirty miles roundtrip. On cross-examination, Mr. Gentry
disagreed with the mileage to Urban Physical Therapy generated by Google Maps as 14.4
miles, saying that this distance is “not what’s actually driven.”
Findings of Fact and Conclusions of Law
Motion to Continue and Employer’s Objections to the Expedited Hearing
Before considering the merits of Mr. Gentry’s requests, Arapazuma filed a motion
to continue the expedited hearing five business days before the hearing. It argued in part
that on April 13, Mr. Gentry filed an appeal of the utilization review determination.
Proceeding with the hearing as scheduled would create the potential for inconsistent results,
Arapazuma contended, and the Medical Director’s decision could “moot” that issue.
1
Arapazuma also late-filed a “radius map” and additional medical records. The notices of filing contain
argument regarding these documents. The Court did not consider them in reaching its decision because the
parties’ proof was closed at the expedited hearing, except for the Medical Director’s opinion. Also,
fundamental fairness dictates that the Court reject Arapazuma’s attempt to supplement the record without
affording Mr. Gentry, a self-represented litigant, an opportunity to object.
3
Arapazuma further contended that it would suffer prejudice because it would be
simultaneously defending the utilization review before two bodies. Regarding the mileage
reimbursement, Arapazuma asserted that it was investigating and might pay disputed
amounts.
The Court denied the motion for two reasons. First, “a trial court is not bound by
the determination of the utilization review physician or the Bureau’s Medical Director but
is charged with conducting a de novo review to determine whether Employer rebutted the
presumption that the prescribed medical treatment is reasonably necessary to treat the work
injury.” Walls v. United Technologies, 2021 TN Wrk. Comp. App. Bd. LEXIS 27, at *12
(Aug. 6, 2021). After the hearing, the Court ordered the parties to submit the Medical
Director’s decision upon its receipt, acknowledging Mr. Gentry’s right to pursue that relief
and that the Medical Director’s decision would undoubtedly be relevant.
Second, Arapazuma has not shown it suffered any prejudice. Mr. Gentry filed
medical records on March 28. They were the same records provided to Dr. Lager (along
with two visits to physical therapy). Mr. Gentry filed the documentation regarding his
mileage request on March 27. So, Arapazuma has known the evidence that Mr. Gentry
planned to rely upon with sufficient time to prepare. Arapazuma contended it was
defending the issue in two separate forums, but it did not explain how that prejudiced it.
Rather, Arapazuma was able to file prehearing witness and exhibit lists and additional
proof, and it fully briefed the issues.
Tennessee Compilation Rules and Regulations 0800-02-21-.11(8) (February, 2022)
states that expedited hearings may be continued only for “good cause.” The Court cannot
find that under these circumstances.
Arapazuma additionally contended that Mr. Gentry’s hearing should not proceed
because he filed a hearing request on March 15 and a declaration on April 7. It argued that
in Smith v. La-Z-Boy, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 52, at *9-10 (Aug. 31,
2017), the Appeals Board held that “accompanied by” contemplates that the supporting
documentation is to be filed in association with the hearing request and does not require
that it be filed “concurrently” or “contemporaneously.” In Smith, the party requesting a
hearing filed supporting documentation the next business day after filing the hearing
request. Arapazuma contended that, in contrast, Mr. Gentry filed his declaration twenty-
three days later, which prejudiced it by giving it “limited time” to submit pre-hearing
materials.
While a twenty-three day delay is discouraged, the Court remains unpersuaded. The
Appeals Board reasoned in Smith that the employee’s delay caused the employer no
prejudice. Id. at *10-11. The same is true here. As previously stated, Arapazuma was
aware of Mr. Gentry’s requested relief and evidence since late March and was able to
submit responsive evidence and pleadings. Moreover, the Court extended its deadline to
4
do so beyond the customary ten business days, due largely to the motion practice that
Arapazuma initiated. Relatedly, Arapazuma also contended that Mr. Gentry did not
disclose witnesses. However, on his March 15 Request for Expedited Hearing, Mr. Gentry
listed only himself as a witness.
Lastly, Arapazuma argued that the case was not properly before the Court because
the parties had not mediated the specific issues. It pointed out that a dispute certification
notice brought the case before the Court previously, but due to disagreements regarding
entirely different matters. Arapazuma relied on Tennessee Code Annotated section 50-6-
239(b)(1) (2021), which states that only issues that have been certified by a workers’
compensation mediator within a dispute certification notice may be presented to the judge
for adjudication.
Here, neither party requested an order referring the parties back to mediation. The
dispute certification notice lists “medical benefits” as an issue; Mr. Gentry now seeks
additional medical benefits. Arapazuma’s argument overlooks that the same statute states
in subdivision(d)(1) that “at any time after a dispute certification notice has been issued .
. ., a workers’ compensation judge may, at the judge’s discretion, hear disputes over issues
provided in the dispute certification notice concerning the provision of . . . medical benefits
on an expedited basis[.]” (Emphasis added.)
Giving the statute a plain reading, this Court took jurisdiction of the case when a
dispute certification notice was filed. That document listed “medical benefits” as one of
the issues. The statute does not require or envision that parties mediate every aspect of the
provision of medical or other benefits that might arise throughout a case’s lifespan. To do
so would inject additional cost and delay, and it would defeat the Court’s ability to grant
relief on an expedited basis, in cases where the parties have already shown they cannot
agree on fundamental issues.
Arapazuma cited no additional authority to support its argument. Moreover, the
applicable rule and case law support this conclusion. The mediation rule states that parties
must mediate “when a party files a petition for benefit determination[.]” Tenn. Comp. R.
& Regs 0800-02-21-.10(1). The Appeals Board has characterized a petition for benefit
determination as “the Bureau’s general equivalent of a complaint as contemplated in the
Tennessee Rules of Civil Procedure.” Vickers v. Amazon, 2019 TN Wrk. Comp. App. Bd.
LEXIS 52, at *7 (Aug. 20, 2019). The complaint commences the lawsuit, and the
mediation requirement is triggered at that point.
In sum, the Court rejects Arapazuma’s objections and now turns to the merits of the
parties’ evidence and claims.
5
Standard Applied
Mr. Gentry must show that he is likely to prevail at a hearing on the merits regarding
his entitlement to additional medical benefits. Tenn. Code Ann. § 50-6-239(d)(1); McCord
v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015).
Physical Therapy
The Workers’ Compensation Law states that an employer must furnish, free of
charge, medical treatment made reasonably necessary by the work accident. Tenn. Code
Ann. § 50-6-204(a)(1)(A). Any treatment recommended by a physician by referral is
presumed to be medically necessary and may be rebutted by a preponderance of the
evidence. Tenn. Code Ann. § 50-6-204(a)(3)(H); Walls, at *10-11. Therefore, the
recommendation of Dr. Willis, a referral physician, is presumed medically necessary.
Arapazuma sought to rebut this presumption with Dr. Lager’s opinion obtained through
utilization review, upheld on appeal by Dr. Snyder.
The utilization review process in Tennessee Code Annotated section 50-6-124
offers employers a mechanism to assess the medical necessity of prescribed medical
treatment. Tenn. Comp. R. & Regs. 0800-02-06-.01(20) (January, 2017). Denials may be
appealed to the Medical Director. Id. at 0800-02-06-.03(5). However, as previously stated,
the Court is not bound by the opinion of a utilization review physician or the Bureau’s
Medical Director but must conduct “a de novo review to determine whether Employer
rebutted the presumption that the prescribed medical treatment is reasonably necessary to
treat the work injury.” Walls, at *12.
Thus, the Court must weigh the competing expert opinions to decide the issue. In
evaluating conflicting expert testimony, a trial court may consider, among other things,
“the qualifications of the experts, the circumstances of their examination, the information
available to them, and the evaluation of the importance of that information through other
experts.” Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991).
Applying these principles, Dr. Willis treated Mr. Gentry since last August and
operated on his shoulder. Moreover, Mr. Gentry testified, without objection, that he saw
Dr. Willis the day before this hearing, and Dr. Willis again recommended additional
physical therapy. Dr. Willis has seen Mr. Gentry at least five times, while neither Dr. Lager
nor Dr. Snyder have examined him. “It seems reasonable that the physicians having greater
contact with the Plaintiff would have the advantage and opportunity to provide a more in-
depth opinion, if not a more accurate one.” Id. at 677. This consideration favors Dr. Willis.
As to the information available to them, Drs. Lager and Snyder reviewed limited
medical records. Dr. Lager cited a guideline from the ODG for a “sprained shoulder” or
6
“rotator cuff tear” for twenty-four physical therapy sessions. However, Mr. Gentry
underwent a reverse shoulder arthroplasty, or complete shoulder replacement.
Arapazuma’s counsel explained that the sprain/tear was the original diagnosis, which was
corrected by replacing his shoulder. But the two diagnoses are not interchangeable. No
evidence was presented regarding the guideline for physical therapy after a complete
shoulder replacement.
As for Dr. Snyder’s statement that “The medical records do not reflect the reasoning
in light of current measurements and a home exercise program[,]” the Court agrees that Dr.
Willis’s records offer measurements. They also do not explicitly document his rationale
for additional therapy, other than “[p]resence of left artificial shoulder joint,” nor do the
records mention the potential efficacy of a home exercise program. However, Dr. Snyder
offered no opinion about the ODG guideline that Dr. Lager cited. Therefore, the Court
affords Dr. Snyder’s opinion limited value. This factor also favors Dr. Willis.
The Court finds Dr. Willis’s opinion, presumed correct, is more persuasive than the
utilization review doctors’ conclusions regarding the medically necessary treatment.
Arapazuma has not rebutted Dr. Willis’s opinion by a preponderance of the evidence.
Therefore, Mr. Gentry is likely to prevail at a hearing on the merits regarding his
entitlement to additional physical therapy.
Mileage Reimbursement
Tennessee Code Annotated section 50-6-204(a)(6)(A) provides that when an injured
worker is required to travel to an authorized medical provider or facility “located outside a
radius of fifteen (15) miles from the injured worker’s residence[,]” the employee shall be
reimbursed for reasonable travel expenses.
Here, by his own admission, Mr. Gentry traveled roundtrip twenty-eight miles for
appointments at Hughston Clinic Orthopaedics and thirty miles to Stonecrest Medical
Center. The statute’s plain language states that these trips are not eligible for
reimbursement because they are not, one-way, “outside a radius of fifteen miles.” So, Mr.
Gentry is not entitled to reimbursement for these visits.2
This leaves physical therapy. Mr. Gentry testified sincerely and repeatedly that he
drove more than fifteen miles, one-way, each time he attended. This is the mileage amount
that he actually measured. Mr. Gentry’s wife completed the form, which he signed, in late
February, without him knowing the statutory threshold for eligibility for reimbursement.
The form contains information against his own interest. Further, Mr. Gentry never wavered
2
Arapazuma also argued that the doctrine of laches applies to these requests. However, the Court need not
address that argument because Mr. Gentry’s admissions preclude his entitlement to reimbursement to these
locations.
7
on this point, despite lengthy and rigorous cross-examination. The Court finds him
credible.
Arapazuma relied solely on the Google Map it introduced into evidence without
objection. But Arapazuma did not support the map’s accuracy with other corroborating
proof. Considering the result generated by one algorithm, versus a human who completed
a form, partially against his own interest, coupled with his credible testimony as to the route
he actually drove and the measurement he took, the evidence preponderates in Mr. Gentry’s
favor. The Court finds he traveled thirty-two miles roundtrip for physical therapy twenty-
one times. Mr. Gentry is likely to prevail at a hearing on the merits on this particular
request. He is entitled to $367.36 in reimbursement.3
It is, therefore, ORDERED as follows:
1. Arapazuma or its workers’ compensation carrier shall promptly authorize the
recommended physical therapy.
2. By agreement, Arapazuma shall reimburse Mr. Gentry $305.00 for mileage
expenses incurred for travel to Concentra and Summit Medical Center. It shall also
reimburse him for mileage expenses to Urban Physical Therapy totaling $367.36.
3. This case is set for a status hearing on June 13, 2022, at 9:30 a.m. central time.
You must call 615-532-9552 or 866-943-0025.
4. 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). The Employer must submit confirmation of compliance
with this Order to the Bureau by email to WCCompliance.Program@tn.gov
no later than the seventh business day after entry of this Order. Failure to
submit the necessary confirmation within the period of compliance may result
in a penalty assessment for non-compliance. For questions regarding
compliance, please contact the Workers’ Compensation Compliance Unit via
email at WCCompliance.Program@tn.gov.
ENTERED April 27, 2022.
3
The mileage reimbursement rate is available at the Bureau’s website. For trips on or before January 1,
2022, the rate was $.47 per mile; afterward, it increased to $.585 per mile. Mr. Gentry made seven trips
under the previous rate, subtotaling $105.28. At the current rate, he made fourteen trips, subtotaling
$262.08. The total mileage reimbursement is $367.36.
8
_____________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Affidavit of Charles Gentry
2. Utilization review report
3. Employee’s medical records
4. Documentation of mileage
5. Affidavit of Sean O’Neill
6. Google Maps
6A. Hughston Clinic Orthopaedics
6B. Urban Physical Therapy
6C. Stonecrest Medical Center
7. Physical therapy records
8. Utilization Review Appeal (late-filed)
9. “Radius Map” and additional medical records (late-filed; identification only)
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice, and parties’ additional issues
3. Status Hearing Order, March 7, 2022
4. Motion for Missing Documents
5. Request for Expedited Hearing
6. Response to Employee’s Motion for Documents Pertaining to Utilization Review
7. Response to and Motion to Strike Employee’s Request for Expedited Hearing
8. Order Setting Expedited Hearing
9. Motion to Dismiss Expedited Hearing
10. Response to Motion [to] Dismiss
11. Hearing Request
12. Order Denying Motion to Dismiss
13. Employer’s Motion to Continue
14. Employer’s Pre-Hearing Brief
15. Employer’s Witness List
16. Employer’s Exhibit List
17. Employer’s Motion for Telephone Testimony
18. Order Granting Motion to Testify by Telephone
19. Order
9
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on April 27, 2022.
Name Certified First Via Service sent to:
Mail Class Email
Mail
Charles Gentry, self- X X 3981A Vesta Rd.
represented employee Lebanon TN 37090
Chancy Miller, X cmiller@carrallison.com
Employer’s attorney kbcarr@carrallison.com
_____________________________________
Penny Shrum, Clerk of Court
WC.CourtClerk@tn.gov
10
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
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Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082