Holder, Harley v. Nathan Marcum d/b/a Marcum Lumber ( 2021 )

FILED
Oct 06, 2021
07:05 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
HARLEY HOLDER, ) Docket Number: 2020-03-1281
Employee, )
v. ) State File Number: 70189-2020
NATHAN MARCUM d/b/a )
MARCUM LUMBER, ) Judge Brian K. Addington
Employer. )
EXPEDITED HEARING ORDER
DECISION ON THE RECORD
Harley Holder suffered serious injuries when he fell down the stairs while working
at Marcum Lumber. Nathan Marcum, the owner of Marcum Lumber, provided no medical
benefits but did pay a small amount of temporary disability benefits. Because he did
receive medical care and only a portion of his temporary disability benefits, Mr. Holder
filed a request for expedited hearing seeking additional benefits. After considering the
evidence presented at an expedited hearing on September 30, 2021, the Court finds that
Mr. Holder is likely to succeed at a hearing on the merits in proving his entitlement to both
medical and temporary disability benefits.
Facts
Nathan Marcum hired Mr. Holder and paid him an average weekly wage of $464.00.
Mr. Marcum’s lumber business employed more than five employees but did not have
workers’ compensation insurance. It was at his business that Mr. Holder fell down steps
on October 1, 2019.
In his fall, Mr. Holder injured his right foot, right ankle, left arm and shoulder,
rotator cuff, and labrum. He sought medical treatment at his own expense because Mr.
Marcum did not provide a panel of physicians or offer to pay for medical care. Mr. Holder
underwent surgery by Dr. Michael Heilig for his ankle on September 28, 2020. He
introduced medical bills showing that the total cost of his treatment was $54,665.56; but
he also requested additional treatment. Mr. Holder’s physicians placed restrictions or took
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him off work from October 1, 2019, until the present and have not placed him at maximum
medical improvement.
Although he paid no medical benefits, Mr. Holder said Mr. Marcum gave him
$1,550.00 between November and January 2020 because he could not accommodate Mr.
Holder’s restrictions. Despite making these payments, Mr. Marcum admitted that he later
terminated Mr. Holder without cause.1
After the loss of his job, Mr. Holder found limited employment starting October 27,
2020. He earns $1,000.00 per month at his new job.
Findings of Fact and Conclusions of Law
At this expedited hearing, Mr. Holder must show he would likely prevail at a hearing
on the merits regarding his requests for medical and temporary disability benefits. Tenn.
Code Ann. § 50-6-239(d)(1) (2020).
Turning first to medical benefits, based on Mr. Holder’s affidavit, he fell and
sustained injuries in the course and scope of his employment. See Tenn. Code Ann. § 50-
6-102(14)(A)-(B). Mr. Marcum, however, provided neither a panel of physicians nor paid
any of Mr. Holder’s $54,655.56 in medical bills related to the fall.
An employer is obligated to provide these medical benefits. See Tenn. Code Ann.
§ 50-6-204. So, the Court holds that Mr. Marcum shall pay these medical bills and provide
ongoing medical treatment with Dr. Heilig.
Concerning temporary disability benefits, an employee is entitled to them if a
physician totally restricts an employee from work or provides restrictions an employer
cannot accommodate. See Tenn. Code Ann. § 50-6-207(1) and (2). Here, Mr. Holder was
totally off work or had restrictions Mr. Marcum could not accommodate from October 2,
2019, through October 26, 2020. This represents a period of fifty-five weeks and four days.
At Mr. Holder’s compensation rate of $309.33, this equates to $17,189.91. Mr. Marcum
paid Mr. Holder a total of $1,550.00 over various weeks, so the Court holds Mr. Holder is
entitled to $15,639.91 for this period.
After Mr. Holder found work, he earned $1,000.00 per month or $232.56 per week.
Since he earned less than his average weekly wage, Mr. Holder is entitled to temporary
partial disability from October 27, 2020, to the present. This is calculated by determining
sixty-six and two-thirds the difference between his average weekly wage and the wage he
earns. Tenn. Code Ann. § 50-6-207(2)(A). Here, that represents $154.29 per week, so the
Court holds Mr. Holder is entitled to $7,604.29 in temporary partial disability benefits for
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This information came from answers that the Court deemed admitted.
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the period when he returned to work to the present.2 Mr. Marcum shall continue paying
these benefits until Mr. Holder is released without restrictions, earns his average weekly
wage, or reaches maximum medical improvement.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Marcum shall pay Mr. Holder’s past medical expenses in the amount of
$54,665.56 and provide ongoing medical treatment under Tennessee Code
Annotated section 50-6-204 with Dr. Heilig as the treating physician.
2. Mr. Marcum shall pay Mr. Holder past temporary disability benefits in the amount
of $23,244.20 and ongoing temporary partial disability under Tennessee Code
Annotated section 50-6-207(A)(2) until the restrictions are removed, he earns his
average weekly wage, or he reaches maximum medical improvement.
3. This case is set for a Status Hearing on December 17 at 10:00 a.m. Eastern. You
must call 855-543-5044 to participate in the hearing.
4. Unless an 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 confirmation within seven business days
may result in a penalty assessment for non-compliance. For questions regarding
compliance, contact the Workers’ Compensation Compliance Unit via email at
WCCompliance.Program@tn.gov.
ENTERED October 6, 2021.
_____________________________________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
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As to the benefit calculation, $464.00 minus $232.56 equals $231.44, of which sixty-six and two-thirds is
$154.29. The total amount represents forty-nine weeks and two days of temporary partial disability
benefits.
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APPENDIX
Exhibits:
1. Harley Holder’s Affidavit
2. Admissions Deemed Admitted
3. (Collective) Medical Bills: Big South Fork Medical Center, Assured Orthopedics of
Kentucky, Kentucky River Medical Center and Lighthouse Physical Therapy, Inc.
4. Medical Records-Big South Fork Medical Center
5. Medical Records-Assured Orthopedics of Kentucky
6. Medical Records-Kentucky River Medical Center
7. Medical Records-Lighthouse Physical Therapy, Inc.
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Motion to Compel Discovery
4. Notice of Transmission of Request for Admissions
5. Order Granting Motion to Compel Discovery
6. Motion for Sanctions
7. Motion to Deem Request for Admissions as Admitted
8. Order Granting Additional Time to File Affidavit
9. Affidavit of Chris W. Beavers
10. Order Granting Attorney’s Fees
11. Order Deeming Answers Admitted
12. Hearing Request
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent on October 6, 2021.
Name Certified Fax Email Service sent to:
Mail
Chris Beavers, X chrisbeavers@banksandjones.com
Employee’s Attorney
Nathan Marcum, X X 653 Cliff Terry Rd.
D/B/A Marcum Oneida, TN 37841,
Lumber, LLC,
Employer 1530 Bear Creek Rd.
Oneida, TN 37841,
P.O. Box 5622
Oneida, TN 37841,
marcumlumber1@gmail.com
_____________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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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 *
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]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082