                                                                                             FILED
                                                                                           Jul 13, 2020
                                                                                          07:15 AM(CT)
                                                                                       TENNESSEE COURT OF
                                                                                      WORKERS' COMPENSATION
                                                                                             CLAIMS




           IN THE
                                        AT NASHVILLE

    Charles Gentry,                                )   Docket No. 2019-06-2140
                Employee,                          )
    v.                                             )
    Arapazuma, Inc.,                               )   State File No. 196998-2019
                Employer,                          )
    And                                            )
                                                   )   Judge Kenneth M. Switzer
                Carrier.                           )


                     EXPEDITED HEARING ORDER GRANTING
                       TEMPORARY DISABILITY BENEFITS


       This case came before the Court on July 8, 2020
         for temporary disability benefits from September 13 to November 15, 2019.
Arapazuma did not pay these benefits because Mr. Gentry did not attend
               The Court finds that although he did not attend this examination, he did not
refuse to undergo it and holds that Mr. Gentry is entitled to benefits for that time.

                                        History of Claim

      In this accepted claim, Mr. Gentry injured his shoulder at work for Arapazuma,
which paid temporary disability benefits while he treated.

       In early August 2019, a claims adjuster for the third-party administrator, Abbey
Fuerstenau, requested that Mr. Gentry see Dr. Damon Petty for an independent medical
examination. Before the appointment, Mr. Gentry called the adjuster to request a different
physician.1 According to his petition for benefit determination, this was because Mr.


1

                                                                administrator. The Court overruled the
objection as an admission by a party opponent made in a representative capacity under Rule 803(1.2)(A)
(2019) of the Tennessee Rules of Evidence.
                                                  1
Gentry had previously                 Petty] to the board of accountability. Mr. Gentry
testified that about
     never saw the doctor. Mr. Gentry said he told Dr. Petty at that time that he was going
to report him. However, he called the Board and received a complaint form, but he never
submitted it. According to Mr. Gentry, Ms. Fuerstenau told him she would look for a
different physician to perform the evaluation. Mr. Gentry did not attend the August 20
appointment.

      Ms. Fuerstenau called him about two weeks after the missed appointment. Mr.
Gentry reminded her that he did not want to see Dr. Petty and that she previously agreed

                                         Fuerstenau followed up with a September 4 letter
reading
    Petty on August 20, 2019. You informed me that you would not be attending the
                                                                                 It advised
                                                                        refusal to comply
with [its] request for examination by the                 letter did not state the steps he
could take to resume benefits. Mr. Gentry received a check for the week of September 6-
12, but then the payments stopped.

                                                                  to inform him that he
was now handling his case. Per Mr. Gentry, Matt suggested a lump-sum settlement so he
could treat on his own. According to his                         to call around and get
cash estimates                                               the next few weeks, they
                                                                 parties did not settle.

       Mr. Gentry filed a petition for benefit determination in early November. He
explained in his petition that he previously reported Dr. Petty, but he also wrote:

          I feel the third physician referral was probably an attempt to manipulate [the]
          outcome in their favor as a THIRD opinion is not the normal practice of most
          insurance companies. If I had been given another option, other than Dr. Petty
          for a third opinion, I would have picked from the options and gone to yet
          another doctor.

(Emphasis in original.) The parties later agreed that Mr. Gentry could see Dr. Blake
Garside, Dr.                         for the                         which occurred.
Arapazuma reinstated benefits on November 16. Surgery has been authorized but not
scheduled.

          Arapazuma did not introduce any live witness testimony at the hearing but instead

2
    The correct name is the Tennessee Board of Medical Examiners.
                                                    2
relied on the affidavit of Daniel Killefer, a claims adjuster for the third-party administrator.
The affidavit referenced the initial conversation between Mr. Gentry and Ms. Fuerstenau
                                                                                      with Dr.
Petty. He notified [the third-party administrator] of his refusal to undergo an independent
medical examination with Dr. P                               The affidavit does not mention
whether Mr. Gentry gave a reason he did not want to see Dr. Petty, nor does it state if Ms.
Fuerstenau offered to find another physician. The affidavit further states that it suspended



       Mr. Gentry testified that he never spoke with and did not know Mr. Killefer.

                        Findings of Fact and Conclusions of Law

      Mr. Gentry must show that he is likely to prevail at a hearing on the merits. See
Tenn. Code Ann. § 50-6-239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

      Tennessee Code Annotated section 50-6-204(d)(1) (2019) provides that an injured
employee

           refuses to comply with any reasonable request for examination . . ., the injured



      Here, Arapazuma requested that Mr. Gentry undergo an examination with Dr. Petty,
and he did not attend the appointment. Arapazuma argued that the statute contains

                                                                Arapazuma correctly
referenced the statutory language. However, under the circumstances, the Court is not
persuaded that it applies here.

       Mr. Gentry credibly testified that, in response to the request that he see Dr. Petty,
he contacted Ms. Fuerstenau and explained that he previously told Dr. Petty he would
report him to the Board. In turn, Ms. Fuerstenau agreed to find another doctor to perform
the examination. The Court finds that Mr. Gentry acted reasonably by not attending the
appointment, relying on their agreement to find another physician. Further, Mr. Gentry
credibly testified that in their second telephone conversation,
        but she never found me somebody else                    This statement contains an
expression of willingness to undergo the examination rather than a refusal.

       Arapazuma offered no substantive
    conversation with Ms. Fuerstenau                                             that the early

                                               3
August conversation occurred, but he gave no specifics regarding what he characterized as

   not know him. Mr. Killefer was not on the call and gave no suggestion as to how he
knows what was said                                             another physician and


        Ms. Fuerstenau September letter documented that Mr. Gentry previously
                 that [he] would not be attending the appointment,           gave no reason
for his nonattendance. The letter then cautioned that the carrier would suspend his benefits.
However, the letter did not inform Mr. Gentry how he could prevent that from occurring.

       Mr. Gentry then spoke with Matt, who proposed a settlement and tasked him with
getting estimates on the cost of his treatment. Mr. Gentry communicated with him several
times over the next few weeks, apparently following his instruction, until the two reached
an impasse. The Court finds Mr. Gentry attempted to rectify the problem and cooperate
with the adjuster and did not refuse the request for an                              which
request remained on hold while they explored settlement.

       In sum, the Court finds that Mr. Gentry did not refuse to undergo the examination,
but he simply did not attend in reliance on a promise to provide another doctor for the
examination. In fact, when Arapazuma offered another physician, Dr. Garside, Mr. Gentry
accepted, even though Dr. Garside practices with Dr. Petty. Thus, Arapazuma improperly
suspended his benefits. The Court holds Mr. Gentry is likely to prevail at a hearing on the
merits regarding the requested relief.

          IT IS, THEREFORE, ORDERED AS FOLLOWS:

      1. Arapazuma shall immediately pay Mr. Gentry a lump-sum of $4,541.67 as
         temporary disability benefits from September 13 to November 15, 2019.3

      2. This case is set for a status hearing on September 8, 2020, at 9:30 a.m. Central
         Time. You must call 615-532-9552 or toll-free at 866-943-0025 to participate.
         Failure to call might result in a determination of the issues without your
         participation.

3
    The dispute certification notice states that the parties contest the compensation rate. Mr. Gentry said he

     the document lists a compensation rate of $504.62, although the carrier has been paying him at the rate
he stated. The Court requested that counsel file the wage statement after the hearing. The Court also
informed the parties that if Mr. Gentry is owed benefits, they will be calculated using
    parties may revisit the amount at the compensation hearing if they still dispute the rate. The Court
calculated the amount owed                                       compensation rate of $72.09 times sixty-
three days, totaling $4,541.67.


                                                       4
   3. 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
      Insurer or Self-Insured 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 might result in a penalty assessment
      for non-compliance. For questions regarding compliance, please contact the

      WCCompliance.Program@tn.gov.

      ENTERED July 13, 2020.



                                     _____________________________________
                                     JUDGE KENNETH M. SWITZER
                                     Court of         Compensation Claims

                                        APPENDIX

Exhibits:
   1. Affidavit of Charles Gentry
   2. Affidavit of Daniel Killefer

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice and additional issues
   3. Show Cause Order
   4. Order on Show-Cause Hearing, March 31
   5. Order on Show-Cause Hearing, May 5
   6. Request for Expedited Hearing
   7. Status Hearing Order, May 27
   8. Status Hearing Order, June 22
   9.
   10.
   11.




                                            5
                           CERTIFICATE OF SERVICE

       I certify that a copy of this Expedited Hearing Order was sent as indicated on July
13, 2020.

  Name                     Regular      Via       Via     Service sent to:
                            Mail        Fax      Email
  Charles Gentry, self-      X                            3981A Vesta Rd.
  represented employee                                    Lebanon TN 37090
  Chancey Miller,                                  X      cmiller@carrallison.com




                                         _____________________________________
                                         Penny Shrum, Clerk of Court
                                                                      Claims
                                         WC.CourtClerk@tn.gov




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