Thomas, Horace Wade v. ZIpp Express , 2016 TN WC 145 ( 2016 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Horace Wade Thomas, ) Docket No. 2015-06-0546
Employee, )
v. ) State File No. 57850-2015
)
Zipp Express, ) Judge Joshua Davis Baker
Employer, )
)
And )
)
Technology Insurance Company, )
Carrier. )
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
This matter came before the Court on May 31, 2016, on the Request for Expedited
Hearing filed by the employee, Horace Wade Thomas, pursuant to Tennessee Code
Annotated section 50-6-239 (2015). The present focus of this case is Mr. Thomas’
entitlement to temporary disability and medical benefits. The central legal issue is his
likelihood of success in proving the compensability of his injury at a trial on the merits.
The employer, Zipp Express (Zipp), raised lack of notice, violation of a safety rule and
non-work-relatedness as defenses. For the reasons set forth below, the Court finds Mr.
Thomas would likely succeed at a hearing on the merits in proving a prima facie case of a
work-related injury. The Court therefore holds Zipp must provide Mr. Thomas a panel of
physicians for evaluation, and if necessary, treatment of his condition.1
History of Claim
Mr. Thomas is a fifty-year-old resident of Wilson County, Tennessee, who worked
for Zipp as an over-the-road truck driver. According to his Petition for Benefit
Determination, Mr. Thomas stayed awake all night on January 18, 2015, while
transporting goods for Zipp’s customers over icy roads. While visiting a truck-stop
convenience store on January 19, 2015, he passed out, hitting his head on a metal rack.
1
A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
(T.R. 1.) The case file contained a video of the incident. (Ex. 13.) Mr. Thomas
attributed his episode of syncope, or fainting, to exhaustion resulting from operating the
truck for Zipp under difficult weather conditions. In his affidavit, Mr. Thomas alleged
Zipp is responsible for his injury because it instructed him to continue working despite
knowing he had not slept. (Ex. 2.)
After Mr. Thomas passed out, an air ambulance took him to the Roanoke
Memorial Hospital where emergency room workers stapled his scalp laceration. He
received follow-up treatment at the Carilion Clinic. In the Carilion medical notes, under
a section entitled “IMPRESSION,” the following appeared: “Syncope, probably due to
sleep loss, question if there is superimposed sleep apnea.” (Ex. 1 at 6.) The same record
also contained the following history:
He usually does not come this far East on his truck driving job, but this
particular trip was unusually longer and he had not slept the night before.
He took 1-1/2 hours of sleep in southwest Virginia yesterday and continued
the day and night getting 1 or 2 hours of sleep here and there until he went
into a truck stop around 3:20 p.m. At some point he remembers being in a
truck stop and then he fell to the ground . . . He has never had any blackout
spells before; any significant head trauma (maybe fell out of a bunk bed as
a child) . . . He had one blackout spell at age 10 when he had pneumonia.
Id.
Carilion discharged Mr. Thomas on February 21, 2015, with a primary diagnosis
of fainting and secondary diagnoses of diabetes and severe, uncontrolled high blood
pressure. He received prescriptions for Tylenol, insulin and Lisinopril and an instruction
to check his blood sugar before and after every meal. He also received a restriction that
prevented him from driving, “until syncope work up is completed.” Id. at 32. Mr.
Thomas incurred significant medical bills for his transportation to Roanoke Memorial, his
emergency treatment there, and his treatment at Carilion. (Ex. 12.)
After his release from the hospital, another Zipp driver picked up Mr. Thomas and
drove him home. Although Mr. Thomas testified he reported his injury to Zipp, the
company did not file a First Report of Injury until September 11, 2015. In the Report,
Zipp described the mechanism of injury as follows: “Passed out due to uncontrolled
diabetes and struck his head.” (Ex. 4.) On September 30, 2015, Zipp denied the claim
citing lack of compensability and untimely reporting as reasons for denial. Zipp also
terminated Mr. Thomas citing safety concerns resulting from his diagnosis of fainting,
diabetes, and severe, uncontrolled, high blood pressure as reason for the termination.
(Ex. 7.)
2
On October 20, 2015, Mr. Thomas filed a Petition for Benefit Determination
(PBD) seeking temporary disability benefits. The parties did not resolve the disputed
issues through mediation and the Mediating Specialist filed a Dispute Certification
Notice (DCN). Mr. Thomas filed a Request for Expedited Hearing and this Court heard
the matter on May 31, 2016.
At the Expedited Hearing, Mr. Thomas testified he delivered a load to a town in
Wisconsin for Zipp on January 17, 2015. Zipp then dispatched him to retrieve a load
from Green Bay, Wisconsin, for delivery to Salem, Virginia. Mr. Thomas left Green Bay
at 6:25 p.m. and drove to Gary, Indiana, where he “shut down” for the night. At 9:15
a.m. the following morning, he left Indiana and drove toward Salem, Virginia.
On Interstate 77 in West Virginia, the weather became treacherous with ice and
snow covering the road. Mr. Thomas testified he could not move his truck so he sat in
the truck on the interstate until the next morning. Mr. Thomas said he called and
informed the dispatcher he was stuck on the interstate. Soon after traffic began moving,
Mr. Thomas stopped his truck and rested for a few hours. He again called the dispatcher
and reported he needed to rest.
After resting, Mr. Thomas delivered his load to the destination in Virginia on
January 19, 2015. He testified he was still tired and wanted to rest some more, but the
dispatcher had another load for him to retrieve after he delivered the load in Salem. He
said the dispatcher told him he needed to pick up that load before stopping. Mr. Thomas
went to pick up the load and attempted to sleep while the customer loaded his truck.
After the customer finished loading his truck, Mr. Thomas drove to a truck-stop to
rest for the night. Upon arrival at the truck-stop, he testified he went inside and took two
bottles of water from the cooler. He turned to walk out and everything went black. Mr.
Thomas stated life flight transported him to the hospital. He remembered nothing else
until he woke up in the ambulance.2
Mr. Thomas admitted he suffers from diabetes, but denied he failed to take his
insulin prior to the syncopal episode. He, however, also stated he had trouble
determining which foods he can and cannot eat to control his diabetes. Additionally, he
admitted spending time on the road made it hard for him to exercise, which could also
negatively affect his diabetes.
On cross-examination, Mr. Thomas admitted he did not have his diet completely
under control but was still working to understand how to eat for his diabetic condition.
He also admitted federal Department of Transportation (DOT) rules required him to rest
2
The Court understood this testimony to mean a helicopter transported Mr. Thomas to the hospital and it was
unclear if he referred to the helicopter or a traditional ambulance through his testimony.
3
for at least ten hours after driving for eleven hours. Mr. Thomas stated DOT would “shut
me down” if investigators discovered he drove more than eleven hours without stopping
for the mandatory rest period. He denied his time stuck on the interstate violated the
mandatory DOT rules for truck-driver rest. He explained the truck was stopped and
could not go anywhere so he was considered “off” under the rules.
Zipp called Scott Lannom, its director of operations. Mr. Lannom testified Zipp
terminated Mr. Thomas because the incident at the truck-stop presented a danger to Mr.
Thomas, Zipp’s equipment, and others on the highway.
Mr. Lannom explained the loads Mr. Thomas picked up in Virginia were “third-
party loads,” or loads from a non-Zipp customer who advertised publicly for companies
to bid on hauling them. According to Mr. Lannom, Zipp had nothing to lose by refusing
the third-party loads Mr. Thomas retrieved. Mr. Lannom could not, however, testify
whether the dispatchers told Mr. Thomas to retrieve the third-party loads despite his lack
of sleep.
Mr. Thomas argued his claim is work-related because his efforts to deliver and
retrieve loads of goods, at the direction of Zipp’s dispatcher, resulted in the exhaustion
that caused his syncopal episode and resulting injury. He asked that the Court order Zipp
to pay all medical bills associated with his injury and to pay him temporary disability
benefits. He explained he got hurt while trying to do the job in accordance with the
dispatcher’s instructions and to the best of his abilities.
Zipp argued Mr. Thomas’ claim should be denied for failure to give proper notice
of an alleged injury. Additionally, Zipp argued Mr. Thomas failed to carry his burden of
proving a likelihood of success on the merits because he presented no medical evidence
of a causal relationship between his work for Zipp and the syncopal episode that caused
his injury.3 Zipp further argued Mr. Thomas failed to prove the injury had any
connection to work from a factual standpoint and Mr. Thomas’ work did not contribute
more than fifty percent in causing his injury. Instead, Zipp claimed the injury was
idiopathic. Finally, although it did not raise misconduct as a defense, Zipp alleged Mr.
Thomas’ own conduct, particularly his failure to get adequate rest in violation of DOT
policy, caused his injury.
Findings of Fact and Conclusions of Law
In order to grant the relief Mr. Thomas seeks, the Court must apply the following
legal principles. Mr. Thomas bears the burden of proof on all prima facie elements of his
3
In addition to these arguments, Zipp provided a list of additional issues as part of the DCN. Zipp, however, did not
directly address any of these arguments during its case or closing argument. Accordingly, the Court considers these
issues waived for purposes of this expedited hearing.
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workers’ compensation claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015); see also
Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd.
LEXIS 39, at *5 (Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015). He need not prove
every element of his claim by a preponderance of the evidence in order to obtain relief at
an expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7- 9 (Tenn. Workers’ Comp. App. Bd. Mar.
27, 2015). At an expedited hearing, Mr. Thomas has the burden to come forward with
sufficient evidence from which this Court can determine he is likely to prevail at a
hearing on the merits. Id.
I. Zipp had actual knowledge of Mr. Thomas’ accident.
Zipp argued Mr. Thomas cannot recover benefits because he failed to provide
timely notice the injury occurred. The Workers’ Compensation Law requires employees
to promptly report all workplace injuries:
Every injured employee or the injured employee’s representative shall,
immediately upon the occurrence of an injury, or as soon thereafter as is
reasonable and practicable, give or cause to be given to the employer who
has no actual notice, written notice of the injury, and the employee shall not
be entitled to physician’s fees or to any compensation that may have
accrued under this chapter, from the date of the accident to the giving of
notice, unless it can be shown that the employer had actual knowledge of
the accident. No compensation shall be payable under this chapter, unless
the written notice is given to the employer within thirty (30) days after the
occurrence of the accident, unless reasonable excuse for failure to give the
notice is made to the satisfaction of the tribunal to which the claim for
compensation may be presented.
Tenn. Code Ann. § 50-6-201(a)(1) (2015). “Notice must be calculated reasonably to
convey the message that the employee has suffered an injury arising out of and in the
course of employment.” Jones v. Helena Truck Lines, Inc., 833 S.W.2d 62, 64 (Tenn.
1993). Rules concerning notice exist to give the employer an opportunity to investigate
the claim before evidence spoils, and to allow the employer to facilitate appropriate
medical care for the injured employee in a timely manner. McCaleb v. Saturn Corp., 910
S.W.2d 412, 415 (Tenn. Workers’ Comp. Panel 1995).
At the hearing, Mr. Thomas stated he told Zipp about the incident and the
evidence supports his testimony. The phone records showed he constantly contacted the
dispatcher at Zipp, and a Zipp employee picked him up from the hospital. The Court,
therefore, finds Zipp had actual notice of the accident. Despite actual knowledge of the
accident, Zipp argued Mr. Thomas failed to inform it the accident was work-related and
his claim is barred for that reason. The Court disagrees. Mr. Thomas testified he told the
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dispatcher he was tired and needed to stop and rest. He then passed out at the truck-stop,
ostensibly from exhaustion related to his work. But for his work for Zipp, Mr. Thomas
would not have been in such an exhausted state and would not have been in the truck-stop
at all. All the evidence shows Zipp knew of his complaints and resulting injury. For
these reasons, the Court finds Zipp had sufficient notice of Mr. Thomas’ injury and its
connection to his work.
II. Mr. Thomas carried his burden of proving a prima facie work-related claim
and is entitled a panel of physicians.
The Workers’ Compensation Law defines an “injury” as “an injury by accident . . .
arising primarily out of and in the course and scope of employment, that causes . . . the
need for medical treatment.” Tenn. Code Ann. § 50-6-102(14) (2015). Further, an injury
is “accidental” only if the injury is caused by a specific incident, or set of incidents,
arising primarily out of and in the course and scope of employment[.] Tenn. Code Ann. §
50-6-102(14)(A) (2015). Arising out of employment refers to causation. Reeser v.
Yellow Freight Sys., Inc., 938 S.W.2d 690, 692 (Tenn. 1997). An injury arises out of
employment when there is a causal connection between the conditions under which the
work is required to be performed and the resulting injury. Fritts v. Safety Nat’l Cas.
Corp., 163 S.W.3d 673, 678 (Tenn. 2005). “An injury occurs in the course of
employment if ‘it takes place within the period of the employment, at a place where the
employee reasonably may be, and while the employee is fulfilling work duties or engaged
in doing something incidental thereto.’” Hubble v. Dyer Nursing Home, 188 S.W.3d 525,
534 (Tenn. 2006) (citing Blankenship v. Am. Ordnance Sys., LLC, 164 S.W.3d 350, 354
(Tenn. 2005)). In a recent decision concerning causation the Appeals Board stated the
following:
[I]n evaluating whether an injured worker’s accident arose out of
employment, the critical question is not whether a third party's fault or
negligence “caused” the injury as that term is applied in a tort setting, but
whether the employment more likely than not caused the accident in the
sense that the accident had its origin in hazards to which the employee was
exposed by reason of the employment.
Navyac v. Universal Health Serv’s., No. 2015-06-0677, TN Wrk Comp. App. Bd. 2016
LEXIS 17, at *16 (Tenn. Workers’ Comp. App. Bd. Mar. 31, 2016).
Here, Mr. Thomas credibly testified that he passed out at a truck-stop after driving
Zipp’s truck for an extended period of time. Additionally, his uncontroverted testimony
showed the Zipp dispatcher instructed him to retrieve additional loads despite his lack of
sleep. The only other testimony concerning instruction from the dispatcher came from
Mr. Lannom. Although he claimed Zipp’s policy would not support the dispatcher
demanding Mr. Thomas retrieve the loads, he could not testify for certain that the
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dispatcher did not instruct Mr. Thomas to do so. Due to the extended work schedule, Mr.
Thomas testified he passed out from exhaustion. Furthermore, in this Court’s opinion the
fact that failure to retrieve the load would not have harmed Zipp from a business
standpoint makes no difference. Mr. Thomas’ retrieval of the load certainly benefitted
Zipp because it was promised payment for the delivery. Accordingly, Mr. Thomas’
activity was rationally related to, and therefore arose primarily out of, his employment for
Zipp.
His accident also occurred in the course and scope of his employment. Mr.
Thomas testified he drove to a truck-stop to rest after retrieving the load for Zipp. He
entered the truck-stop convenience store to retrieve some water and passed out in the
process. The Court finds Mr. Thomas’ work for Zipp placed him the position that
resulted in his injury. He went to the truck-stop to rest after his extended driving. But for
his work he would not have been in the truck-stop. Additionally, his work for Zipp
allegedly exhausted him and he passed out. Accordingly, the Court finds Mr. Thomas’
accident occurred in the course and scope of his employment for Zipp.
Zipp also implicitly raised employee misconduct as an affirmative defense. The
Court finds this defense is without merit. Tennessee Code Annotated section 50-6-110(a)
(2015) provides the following in pertinent part:
No compensation shall be allowed for an injury or death due to:
(1) The employee’s willful misconduct;
(2) The employee’s intentional self-inflicted injury;
(3) The employee’s intoxication or illegal drug usage;
(4) The employee’s willful failure or refusal to use a safety device[.]
The controlling case outlining the willful misconduct affirmative defense is
Mitchell v. Fayetteville Public Utilities, 368 S.W.3d 442 (Tenn. 2012). In Mitchell, the
Court held that the employer could meet its burden to prove the defenses of willful
misconduct and willful failure or refusal to use a safety device without having to show an
element of perversity, but reiterated the requirement that it must prove that the
employee’s conduct was willful. Mitchell, 368 S.W.3d at 453. In order to successfully
defend a workers’ compensation claim on the basis of willful misconduct, willful
disobedience of safety rules, or willful failure to use a safety device under Tennessee
Code Annotated section 50-6-110(a), the Mitchell Court adopted a four-step test: (1) the
employee’s actual, as opposed to constructive, notice of the rule; (2) the employee’s
understanding of the danger involved in violating the rule; (3) the employer’s bona fide
enforcement of the rule; and, (4) the employee's lack of a valid excuse for violating the
rule. Id.
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 Here, the facts showed a DOT rule allows commercial truck drivers, such as those
employed by Zipp, to drive a semi-truck no more than eleven hours before requiring them
to stop and rest for ten hours. What is unclear, however, is whether Mr. Thomas actually
violated the rule. Both Mr. Lannom and Mr. Thomas testified they did not know if the
hours Mr. Thomas spent stuck on the interstate in icy weather counted as part of the
eleven-hour driving period. Mr. Lannom described this as a “gray area” for application
of the rule.
Furthermore, even if Mr. Thomas did violate the rule, his uncontroverted
testimony showed the Zipp dispatcher instructed him to continue working despite his lack
of sleep and extensive time driving without rest. Zipp cannot on the one hand demand
Mr. Thomas violate the safety rule and then cite the same rule as a reason to deny him
workers’ compensation benefits. In the opinion of this Court, Zipp’s actions did not
constitute bona fide enforcement of the DOT rule.
Zipp also cited lack of medical causation as a defense. On this point, the Workers’
Compensation Law provides, “[a]n injury causes death, disablement or the need for
medical treatment only if it has been shown to a reasonable degree of medical certainty
that it contributed more than fifty percent (50%) in causing the death, disablement or
need for medical treatment, considering all causes.” Tenn. Code Ann. § 50-6-102(14)(C)
(2015). Shown to a reasonable degree of medical certainty means that, in the opinion of
the physician, it is more likely than not considering all causes, as opposed to speculation
or possibility. Tenn. Code Ann. § 50-6-102(14)(D) (2015). Thus, causation must be
established by expert medical testimony, and an employee’s lay testimony, without
corroborative expert testimony, does not constitute adequate evidence of medical
causation. Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk.
Comp. App. Bd. LEXIS 24, at *12 (Tenn. Workers’ Comp. App. Bd. Aug. 18, 2015).
Zipp’s argument regarding medical causation at this stage of the proceedings is
incorrect. Carilion noted Mr. Thomas’ syncopal episode likely occurred due to lack of
sleep. This statement does not conform to the statute’s requirement that causation be
shown to a reasonable degree of medical certainty that the injury contributed more than
fifty percent in causing the need for medical treatment. However, at an expedited
hearing, an employee need not establish the compensability of his or her claim by a
preponderance of the evidence. See Lewis v. Molly Maid, et al., No. 2015-06-0456, 2016
TN Wrk. Comp. App. Bd. LEXIS 19, at *8-9 (Tenn. Workers’ Comp. App. Bd. Apr. 20,
2016). Rather, if the employee comes forward with sufficient evidence to support that a
work event resulted in injury, it may also be sufficient to support an order compelling an
employer to provide a panel. Id.
Here, Mr. Thomas credibly testified he passed out after an exhausting drive
making deliveries and retrieving loads for Zipp. Additionally, the medical records
characterized the event as work-related. The history in those medical records is
essentially consistent with the description of events Mr. Thomas provided at the
8
expedited hearing. Zipp’s rebuttal evidence consisted entirely of a report prepared by Dr.
Garside, an orthopedic surgeon, who opined based on a review of the records and the
video of the syncope episode that Mr. Thomas’ exhaustion did not cause him to pass out.
To this Court’s knowledge, Dr. Garside never examined or even spoke with Mr. Thomas
before preparing the report. Because Dr. Garside essentially had no connection with Mr.
Thomas or involvement in his treatment, the Court places little weight on his report.
The Court also finds Zipp’s idiopathic defense non-compelling. Zipp relies on
Sudduth v. Williams, 517 S.W.2d 520 (Tenn. 1974), but this case is distinguishable from
the facts here. In Sudduth, the employee suffered significant injury when he had a
seizure in a workplace bathroom and fell to the floor. The trial court found the injury was
idiopathic and, therefore, noncompensable. Id. at 523. The employee in Sudduth had a
history of seizure activity and the Court relied heavily on the medical evidence
concerning the seizure history. In contrast, Mr. Thomas had no real history or syncope
and the medical evidence noted his episode was “probably due to sleep loss.” In sum,
Court concludes Mr. Thomas is likely to prevail at a hearing on the merits in proving he
suffered a prima facie injury in the course and scope of his employment for Zipp.
Turning to the requested relief, Zipp denied this claim without ever providing a
panel. The Court finds Mr. Thomas is entitled to a panel of neurologic specialists from
which to select a physician. It shall then become the responsibility of the parties to
determine whether the physician believes Mr. Thomas’ syncopal episode is causally
related to the exhaustion resulting from his work for Zipp.
III. Mr. Thomas claim for temporary disability benefits and past medical
expenses is denied at this time.
Mr. Thomas additionally seeks reimbursement for past medical expenses. The
Workers’ Compensation Law provides that employers must furnish, free of charge to the
employee, medical treatment made reasonably necessary by the work-related accident.
See Tenn. Code Ann. § 50-6-204(a)(1)(A) (2015). On the present record, the Court
cannot order payment of past medical expenses, but Mr. Thomas may seek payment at
the compensation hearing if a physician determines his syncopal episode was causally-
related to his work.
Finally, Mr. Thomas seeks temporary disability benefits. In Jones v. Crencor, No.
2015-06-0332, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Tenn. Workers’ Comp.
App. Bd. Dec. 11, 2015), the Appeals Board held:
An injured worker is eligible for temporary disability benefits if: (1) the
worker became disabled from working due to a compensable injury; (2)
there is a causal connection between the injury and the inability to work;
and (3) the worker established the duration of the period of disability.
Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978).
9
Until these criteria are established, the Court is unable to grant such benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Medical care for Mr. Thomas’ injuries shall be paid and Zipp or its workers’
compensation carrier shall provide Mr. Thomas with medical treatment for these
injuries as required by Tennessee Code Annotated section 50-6-204 (2015), to be
initiated by Zipp or its workers’ compensation carrier providing Mr. Thomas with
a panel of neurological specialists. Medical bills shall be furnished to Zipp or its
workers’ compensation carrier by Mr. Thomas or the medical providers.
2. Mr. Thomas’ claim for past medical bills and temporary disability benefits is
denied at this time.
3. This matter is set for an Initial (Scheduling) Hearing on July 25, 2016, at 10:30
a.m. (CDT).
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)
(2015). 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 may result in a penalty assessment for non-compliance.
5. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
253-1471.
ENTERED THIS THE___DAY
14th OF JUNE, 2016.
________________________________________
Judge Joshua Davis Baker
Court of Workers’ Compensation Claims
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Initial Hearing:
An Initial (Scheduling) Hearing has been sent for July ____, 2016, at ___:00 __.m.
Central Time with Judge Joshua Davis Baker, Court of Workers’ Compensation
Claims. You must call 615-741-2113 or toll free at 855-874-0474 to participate in the
Initial Hearing.
Please Note: You must call in on the scheduled date/time to participate. Failure to
call in may result in a determination of the issues without your further
participation. All conferences are set using Central Time (CT).
Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers’ Compensation Appeals Board. To file a Notice of
Appeal, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal.”
2. File the completed form with the Court Clerk within seven business days of the
date the Workers’ Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.000. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is practicable.
Failure to timely pay the filing fee or file the Affidavit of Indigency in
accordance with this section shall result in dismissal of the appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal,
may request, from the Court Clerk, the audio recording of the hearing for the
purpose of having a transcript prepared by a licensed court reporter and filing it
with the Court Clerk within ten calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
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the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers’ Compensation
Claims and must be approved by the workers’ compensation judge before the
record is submitted to the clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within five business days of the filing of the appellant’s
position statement. All position statements pertaining to an appeal of an
interlocutory order 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.
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APPENDIX
Exhibits:
1. Medical Records of Horace Wade Thomas
2. Affidavit of Horace Wade Thomas
3. Dr. Garside’s Report
4. First Report of Injury
5. Wage Statement
6. Notice of Controversy
7. Termination Letter from Scott Lannom
8. Denial Letter from Occusure
9. Phone Records
10. Alliance Trip Summary
11. Correspondence from Middle Tennessee Family Care
12. Medical Bills
13. Surveillance Video
Technical record:4
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Show Cause Hearing Order
5. Show Cause Order – Notice of Hearing
6. Zipp’s Position Statement
7. Mr. Thomas’ Position Statement
4
The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was sent to the
following recipients by the following methods of service on this the 14thday of June,
2016.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
H. Wade Thomas X X 7888 Cairo Bend Rd
Lebanon, TN 37087
wadestruck@live.com
B. Duane Willis, X dwillis@morganakins.com
Attorney
_______________________________________
Penny Shrum, Court Clerk
Wc.courtclerk@tn.gov
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