The opinion
FILED
Sep 01, 2023
02:07 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
DAVID ROY, ) Docket Number: 2022-02-0286
Employee, )
v. )
KENAN ADVANTAGE GROUP, ) State File Number: 56232-2020
Employer, )
and )
OLD REPUBLIC INS. CO., ) Judge Brian K. Addington
Carrier. )
COMPENSATION ORDER
The Court held a compensation hearing on August 29, 2023, where Mr. Roy asked
that the Court order Kenan to provide a panel of physicians for his right arm and shoulder
injuries. Kenan did not dispute Mr. Roy is entitled to a panel. The parties agreed that no
factual issues exist. For the reasons below, the Court holds Mr. Roy is entitled to a panel.
Claim History
On August 24, 2020, Mr. Roy injured his right arm and shoulder when he slipped
on the rung of a ladder. Kenan furnished medical treatment, including surgery, and the
parties settled the claim. However, Mr. Roy’s authorized physician declined to continue
treatment.1
In May 2022, Kenan sent the first of a series of physician panels to Mr. Roy. Since
that time, Mr. Roy has selected at least seven doctors from Kenan’s panels, and all have
declined to treat him.2 Mr. Roy testified that his shoulder is still painful and he is concerned
the pain is due to problems from surgery.
1
Mr. Roy lives in Jonesborough, Tennessee.
2
The denials mainly came after the chosen physician reviewed Mr. Roy’s medical records.
1
Kenan does not dispute Mr. Roy is entitled to treatment, but it has experienced
difficulties finding a physician. It does not oppose Mr. Roy finding a doctor that Kenan
could add to a panel. For his part, Mr. Roy argued Kenan is responsible for finding a doctor,
not him, and he is frustrated the process is taking so long.
Findings of Fact and Conclusions of Law
At a compensation hearing, Mr. Roy must show by a preponderance of the evidence
that he is entitled to the requested benefits. Tenn. Code Ann. § 50-6-239(c)(6) (2022).
The Workers’ Compensation Law provides that, “the employer or the employer’s
agent shall furnish, free of charge to the employee, such medical and surgical treatment
made reasonably necessary by accident [.]” Tenn. Code Ann. § 50-6-204(a)(1)(A).
Under section 50-6-204(a)(3)(A)(i) the employer must designate a group of three
doctors “if available in the injured worker’s community.” (Emphasis added). If no
physicians in Mr. Roy’s community are willing to treat him, section 50-6-204(a)(3)(B)
allows the employer to offer a panel of three physicians that are “within a one-hundred-
twenty-five-mile radius of the employee’s community of residence.”3
Here, the parties agreed that Mr. Roy is entitled to lifetime medical treatment for his
2020 shoulder and arm injuries. Kenan has attempted to fulfill its obligation but has been
unable to find a physician willing to see Mr. Roy.
Therefore, the Court holds that Kenan shall supply Mr. Roy a panel of physicians
under sections 50-6-204(a)(3)(A)(i) or (a)(3)(B) who are willing to treat him.
IT IS, THEREFORE, ORDERED as follows:
1. Kenan shall provide Mr. Roy a panel of physicians willing to treat his injury
under Tennessee Code Annotated sections 50-6-204(a)(3)(A)(i) and 50-6-
204(a)(3)(B).
2. Kenan shall pay the $150.00 filing fee within five days of entry of this order
under Tennessee Compilation Rules and Regulations 0800-02-21-.06.
3. Unless appealed, this order shall become final thirty days after entry.
4. Kenan shall prepare and submit to the Clerk a Statistical Data Form (SD-2)
within ten business days of this order becoming final.
3
This statute does not limit physicians to those who practice in Tennessee.
2
5. Failure to comply with this order may lead to penalties.
ENTERED September 1, 2023.
/s/ Brian K. Addington
______________________________________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
Appendix
Exhibits:
1. Pre-Compensation Hearing Statement (Collective)
2. Supplemental Pre-Compensation Hearing Statement (Collective)
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Hearing Request
4. Scheduling Order
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent on September 1, 2023.
Name Certified Fax Email Service sent to:
David Roy, X X 147 Old State Route 34
Employee Unit 28
Jonesborough, TN 37659
shorelineshippers@gmail.com
Gerard Jabaley, X gjabaley@wimberlylawson.com
Employer’s Attorney aburge@wimberlylawson.com
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
3
Compensation Order Right to Appeal:
If you disagree with this Compensation Order, you may appeal to the Workers’
Compensation Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims within thirty calendar days of the date the
Compensation Order was filed. When filing the Notice of Appeal, you must serve a copy
upon the opposing party (or attorney, if represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar
days after filing 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 filing 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 your appeal.
3. You are responsible for ensuring a complete record is presented on appeal. The Court Clerk
will prepare the technical record and exhibits for submission to the Appeals Board, and you
will receive notice once it has been submitted. If no court reporter was present at the hearing,
you may request from the Court Clerk the audio recording of the hearing for a $25.00 fee.
A licensed court reporter must prepare a transcript, and you must file it with the Court Clerk
within fifteen calendar days of filing the Notice of Appeal. Alternatively, you may file a
statement of the evidence prepared jointly by both parties within fifteen calendar days of
filing the Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of the testimony presented at the hearing. The Workers’ Compensation
Judge must approve the statement of the evidence before the record is submitted to the
Appeals Board. If the Appeals Board must 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. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. You have fifteen
calendar days after the date of that notice to file a brief to the Appeals Board. See the Rules
governing the Workers’ Compensation Appeals Board on the Bureau’s website
If neither party timely files an appeal with the Appeals Board, the trial court’s Order will
become final by operation of law thirty calendar days after entry. Tenn. Code Ann. § 50-6-
239(c)(7).
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 *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
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]
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