Warren, Timothy v. Yates Services , 2016 TN WC 210 ( 2016 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
TIMOTHY WARREN ) Docket No.: 2016-05-0285
Employee, )
v. ) State File Number: 23674-2016
YATES SERVICES )
Employer, ) Judge Dale Tipps
And )
TRAVELERS INS. )
Insurance Carrier/TPA. )
)
EXPEDITED HEARING ORDER GRANTING BENEFITS
This matter came before the undersigned workers’ compensation judge on
September 14, 2016, on the Request for Expedited Hearing filed by Timothy Warren,
pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus of
this case is whether Mr. Warren is entitled to medical treatment and temporary disability
benefits for his left arm injury. The central legal issue is whether the evidence is
sufficient for the Court to determine that Mr. Warren is likely to establish at a hearing on
the merits he suffered an injury arising primarily out of and in the course and scope of his
employment. For the reasons set forth below, the Court holds Mr. Warren is likely to
meet this burden and is entitled to medical and temporary disability benefits. 1
History of Claim
The following facts were established at the Expedited Hearing. Mr. Warren began
working for Yates Services in August 2013. He was working at the Nissan engine
manufacturing facility in Decherd, Tennessee when he suffered a fall at work on
December 22, 2015. He testified he fell and caught himself with his left arm on that date
when his heel caught on a pallet. Mr. Warren reported the accident to his supervisor,
Gary Reed, who filled out an accident report, gave Mr. Warren some Ibuprofen, and
provided light duty for the rest of Ms. Warren’s shift. Mr. Reed did not offer Mr. Warren
a panel or send him for in-house medical treatment.
1
A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
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The plant closed the next day for a scheduled winter shutdown. During that time,
Mr. Warren sought treatment at Dr. Karen Tidmore’s office in Winchester, Tennessee.
He saw the nurse practitioner, who prescribed a brace for him to wear on his left hand,
wrist, and arm.
Following the shutdown, Mr. Warren returned to work on January 4, 2016. He
explained to Mr. Reed that he had gone to the doctor for treatment of his wrist and
forearm pain. At the end of Mr. Warren’s shift, Mr. Reed took him to see Carlos Shelton,
the safety manager. Mr. Shelton provided Mr. Warren a smaller brace, which he
instructed Mr. Warren to wear while working.
Yates provided light duty for Mr. Warren, consisting primarily of building collets,
a small engine part. Mr. Warren’s condition gradually worsened as he performed this
light duty work over the next few weeks. On the morning of February 4, 2016, Mr.
Warren left work at the end of his shift and went home. As he reached for the screen
door of his house, he felt a pop in the inside of his left forearm. He returned to work later
the same day and, before beginning his shift, told Mr. Reed what had happened at home.
At the end of that shift the next morning, February 5, Mr. Warren went home. However,
his arm was hurting so badly that he drove back to the plant to see Mr. Shelton. Mr.
Shelton offered no panel or medical treatment, telling Mr. Warren that Yates was not
responsible because the injury had occurred at home.
Handwritten statements made by Mr. Reed and Mr. Shelton on February 4th and 5th
were admitted into evidence without objection. They both confirm Mr. Warren reported
a pop between his wrist and elbow while reaching for a screen door at his home.
Mr. Warren sought additional medical treatment at the emergency room of Unity
Medical Center on February 8, 2016. Triage documents state: “First hurt arm at work
December 22 and reinjured it Feb 4th c/o pain entire left arm. He denies this is w/c injury
at this time.” (Ex. 6 at 7.) Mr. Warren testified the providers at Unity referred him to Dr.
Jason Haslam at Seven Springs Orthopaedics.
Dr. Haslam saw Mr. Warren on February 10, 2016, for left elbow, forearm, and
wrist pain. Mr. Warren described an initial injury at work on December 22 when he
tripped over a pallet and fell on his outstretched left arm. Following that incident, he
worked light duty, had pain in his wrist and forearm, and wore a brace given to him by
his safety manager. A week before seeing Dr. Haslam, Mr. Warren reached out to open a
screen door at his home when he “felt and heard a pop in his left elbow region.” This
resulted in increasing pain, decreased function, and weakness in the left elbow and
forearm. Dr. Haslam ordered an MRI and took Mr. Warren off work. Id. at 14-16.
On Mr. Warren’s return visit, Dr. Haslam noted the MRI showed a full-thickness
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tear with retraction of the distal biceps tendon. He recommended a surgical repair, which
took place on February 22. Mr. Warren continued to follow up with Dr. Haslam for the
biceps tendon injury and for continued complaints of wrist pain. At Mr. Warren’s last
visit on May 3, 2016, Dr. Haslam found the surgical wound had healed and Mr. Warren’s
wrist pain had improved following an injection. He assigned five-pound lifting
restrictions and asked Mr. Warren to return in four weeks. He also stated, “It is my
opinion that this is a work-related injury.” (Id. at 19-33.)
Dr. Haslam’s records also include a clinic note dated March 15, 2016, which
states:
Injury which occurred approximately 3 months ago. In my opinion, I
believe that greater than 51% of his current symptoms and diagnosis is
directly caused from his fall at work. The minor trauma at his home was a
final culmination of this particular work injury which was a biceps tendon
rupture.
(Ex. 7.)
Mr. Warren testified that he filed for short-term disability benefits under his
private insurance when Yates failed to provide temporary disability benefits after his
doctors took him off work for this injury. After his disability benefits ended in May,
Yates terminated his employment on May 16, 2016. The reason given for his termination
was failure to return to work from leave of absence. (Ex. 4.) He would have accepted
light duty, but Yates did not offer any before terminating him. Mr. Warren has not
worked anywhere since his termination. Because he lost his medical insurance, he cannot
afford to return to Dr. Haslam.
Mr. Warren filed a Petition for Benefit Determination on March 31, 2016. Yates
subsequently issued a Notice of Denial, the basis of which was, “Claim is denied for no
medical evidence of an injury on the left wrist. Left tendon bicep rupture is not primarily
work related and did not happen in the course and scope of employment.” Yates
subsequently prepared a First Report of Injury on April 27, 2016. The parties did not
resolve the disputed issues through mediation, so the Mediating Specialist filed a Dispute
Certification Notice and Mr. Warren filed a Request for Expedited Hearing.
At the hearing, Mr. Warren asserted he is entitled to medical and temporary
disability benefits because he has established all the necessary elements of his claim.
There is no evidence controverting his description of the incident and no dispute that he
gave prompt notice of his injury. He argued that he has established causation because the
only medical proof submitted is Dr. Haslam’s opinion that Mr. Warren’s condition arose
primarily out of his work accident. Mr. Warren requested payment for his past medical
treatment and requested that Dr. Haslam be designated his authorized treating physician.
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He also seeks payment of temporary disability benefits beginning with his last day
worked. Further, because his claim was denied after he sent Dr. Haslam’s causation
opinion to Yates’ workers’ compensation carrier, he also requested imposition of a 25%
penalty pursuant to Tennessee Code Annotated section 50-6-205(b)(3) (2015).
Yates countered that Mr. Warren is not entitled to any workers’ compensation
benefits. It argued that he cannot meet his burden of proving an injury arising primarily
out of his work because, by his own admission, the biceps tendon tear occurred while he
was at home. Yates contends the work injury resulted in injuries to Mr. Warren’s wrist
and forearm, and there is no proof that he injured his biceps tendon at work on December
22, 2016.
Findings of Fact and Conclusions of Law
The following legal principles govern this case. Because this case is in a posture
of an Expedited Hearing, Mr. Warren need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). Instead, he must come forward with
sufficient evidence from which this Court might determine he is likely to prevail at a
hearing on the merits. Id.; Tenn. Code Ann. § 50-6-239(d)(1) (2015).
To prove a compensable injury, Mr. Warren must show that his alleged injury
arose primarily out of and in the course and scope of his employment. Tenn. Code Ann.
§ 50-6-102(14) (2015). To do so, he must show his injury was caused by an incident, or
specific set of incidents, identifiable by time and place of occurrence. Tenn. Code Ann. §
50-6-102(14)(A) (2015). Further, he must show, “to a reasonable degree of medical
certainty that it contributed more than fifty percent (50%) in causing the . . . 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 treating 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).
Applying these principles to the facts of this case, the Court holds Mr. Warren
appears likely to prove a compensable claim. As noted above, medical proof is required
to establish the requisite causal link between an employee’s work and their injury. The
sole medical opinion submitted is that of Dr. Haslam, who stated, “greater than 51% of
his current symptoms and diagnosis is directly caused from his fall at work.” In the
absence of any conflicting medical evidence, Dr. Haslam’s unrebutted opinion would be
sufficient at a hearing on the merits for Mr. Warren to meet his burden of proving his
biceps tendon injury arose primarily out of and in the course and scope of his
employment.
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Yates made several arguments against the question of causation, but the Court
finds them to be unpersuasive. First, Yates characterized Dr. Haslam’s opinion as weak,
citing another part of his March 15, 2016 note where he stated, “Given his clinical history
and reported fall at work I’m highly suspicious that this may be primarily due to his
work-related injury which occurred approximately 3 months ago.” Yates argued this
statement indicates indecision on the part of Dr. Haslam and militates against the Court
accepting his subsequent determination that the tendon injury is compensable. Yates also
argued the Court should not accept Dr. Haslam’s opinion because he gave no basis or
explanation how he reached that opinion.
This argument ignores the fact that, even if the statement referred to by Yates
indicated any uncertainty or reservations on the part of Dr. Haslam, he appears to have
resolved any such reservations by subsequently issuing a plain and clearly-stated opinion.
Yates cited no authority suggesting whether, or to what extent, an unrebutted medical
opinion must detail a doctor’s methodology in reaching his conclusion. In the absence of
such authority, the Court is reluctant to substitute its medical judgment (or Yates’) for
that of Dr. Haslam. If, as Yates suggests, Dr. Haslam’s opinion is weak, it could have
sought to depose him about it or provided a contrary medical opinion.
Further, Yates’ argument overlooks the rest of Dr. Haslam’s note, which states:
This injury did occur at work approximately 3 months ago. This was
apparently reported to his work superiors. He socially [sic] continued to
have significant discomfort in the forearm. These discomforts culminated
in a rupture of the biceps tendon at home when reaching for a door.
Dr. Haslam also wrote, “The minor trauma at his home was a final culmination of this
particular work injury which was a biceps tendon rupture.” Thus, contrary to Yates’
contention, the Court finds Dr. Haslam provided considerable explanation of how at least
51% of Mr. Warren’s injury arose out of his work.
Yates also argued that the work injury and the incident at Mr. Warren’s home
were separate events because his symptoms were located in different parts of his arm.
This argument ignores the fact that the only medical opinion admitted into evidence
related these two events to a single injury. Even without that opinion, the other evidence
would not support Yates’ attempt to characterize the first incident as a wrist injury and
the second one as an elbow injury. Mr. Warren’s unrebutted testimony was that he had
forearm pain following his workplace fall, which he reported to both Mr. Reed and Mr.
Shelton. This is consistent with the complaints recorded in the Unity Medical Center
records, which refer to pain from “bicep to hand” and “felt pop in forearm.”2 Further, the
2
Yates also argued Mr. Warren “denied this was work-related injury” when he spoke to Unity Medical Center
personnel. The intake notice from Unity states, “He denies this is w/c injury at this time.” Mr. Warren denied
saying his injury was not work-related, but explained he actually told Unity personnel that the injury was not
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Court observed during the hearing that Mr. Warren’s surgical scar was, in fact, on his
forearm.
As Mr. Warren has come forward with sufficient evidence to show he is likely to
prevail at a hearing on the merits, the Court must address his request for medical benefits.
Under the Workers’ Compensation Law, “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) (2015).
“The injured employee shall accept the medical benefits . . . provided that in any case
when the employee has suffered an injury and expressed a need for medical care, the
employer shall designate a group of three (3) or more independent reputable physicians . .
. from which the employee shall select one (1) to be the treating physician.” Tenn. Code
Ann. § 50-6-204(a)(3)(A)(i) (2015). However, “an employer who elects to deny a claim
runs the risk that it will be held responsible for medical benefits obtained from a medical
provider of the employee’s choice and/or that it may be subject to penalties for failure to
provide a panel of physicians and/or benefits in a timely manner.” McCord v. Advantage
Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *13
(Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015); see also Bond v. Am. Air Filter, 692
S.W.2d 638 (Tenn. 1985). Moreover, when an employer initially fails to provide a panel
of physicians from which an employee might choose a treating physician, then such
employer cannot belatedly seek to control selection of the treating physician by the late
provision of a panel. Lambert v. Famous Hospitality, Inc., 947 S.W.2d 852 (Tenn. 1997).
It is undisputed that Mr. Warren provided notice of his injury to his supervisor at
Yates on the date of his injury. Returning after the plant shutdown, he informed his
supervisors of his medical restrictions and continuing problems, which resulted in Yates
assigning him a light duty job. However, Yates never provided a panel of physicians,
even though the event that led to Yates’ denial of the claim did not take place until
February 4, 2016. In other words, for over a month before it ever had any reason to deny
Mr. Warren’s claim, Yates failed to provide a panel. As a result, pursuant to Lambert,
the Court concludes it is appropriate to designate Dr. Haslam as Mr. Warren’s authorized
treating physician for future treatment.
Mr. Warren also seeks payment of temporary disability benefits. An injured
worker is eligible for temporary total 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. Jones v. Crencor Leasing and Sales, No. 2015-06-0332, 2015
TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Tenn. Workers’ Comp. App. Bd. Dec. 11,
2015) (citing Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978). The first record
indicating a medical professional taking Mr. Warren off work is Dr. Haslam’s note of
covered by workers’ compensation because Yates denied coverage. This explanation was unrebutted.
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February 10, 2016. Dr. Haslam subsequently performed surgery and none of his records
refer to disability until he released Mr. Warren with five-pound lifting restrictions on
May 3, 2016.3 Accordingly, Mr. Warren appears likely to prove he is entitled to
temporary total disability benefits for the period of February 10, 2016, through May 2,
2016.4
Temporary partial disability benefits, a category of vocational disability distinct
from temporary total disability, are available when the temporary disability is not total.
Id.; see also Tenn. Code Ann. § 50-6-207(1)-(2) (2015). Specifically, “[t]emporary
partial disability refers to the time, if any, during which the injured employee is able to
resume some gainful employment but has not reached maximum recovery.” Id. (citing
Williams v. Saturn Corp., No. M2004-01215-WC-R3-CV, 2005 Tenn. LEXIS 1032, at *6
(Tenn. Workers’ Comp. Panel Nov. 15, 2005)). Thus, in circumstances where the
treating physician has released the injured worker to return to work with restrictions prior
to maximum medical improvement, and the employer either (1) cannot return the
employee to work within the restrictions or (2) cannot provide restricted work for a
sufficient number of hours and/or at a rate of pay equal to or greater than the employee’s
average weekly wage on the date of injury, the injured worker may be eligible for
temporary partial disability. Id.
As noted above, Dr. Haslam released Mr. Warren to light duty with a five-pound
lifting restriction on May 3, 2016. Mr. Warren testified he would have accepted light
duty from Yates if it had made him an offer. However, he presented no proof that he ever
presented Dr. Haslam’s restrictions to Yates or gave it an opportunity to make an offer of
light duty. In the absence of such proof, the Court cannot find at this time that Mr.
Warren is likely to establish entitlement to temporary partial disability benefits.
Finally, Mr. Warren seeks an order imposing a penalty pursuant to Tennessee
Code Annotated section 50-6-205(b)(3) (2015), which provides:
In addition to any other penalty provided by law, if an employer, trust or
pool or an employer’s insurer fails to pay, or untimely pays, temporary
disability benefits within twenty (20) days after the employer has
knowledge of any disability that would qualify for benefits under this
chapter, a workers’ compensation judge shall have the authority to assess
against the employer, trust or pool or the employer’s insurer a civil penalty
in addition to the temporary disability benefits that are due to the employee.
The penalty, if assessed, shall be in an amount equal to twenty-five percent
(25%) of the temporary disability benefits that were not paid in accordance
3
The Court notes that it is undisputed Mr. Warren was on short-term disability during this time.
4
The parties did not stipulate a compensation rate, but the wage statement entered into evidence without objection
indicates an average weekly wage of $648.97, which yields a compensation rate of $432.65.
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with this subsection (b). Furthermore, the penalty may be assessed as to all
temporary disability benefits that are determined not to be paid in
compliance with this subsection (b).
Mr. Warren may eventually establish entitlement to the requested penalty for
unpaid disability benefits, but the Court declines to make that determination at this time.
Section 50-6-205(b)(3) specifies that the penalty is only applicable to an employer who
has “knowledge of any disability that would qualify for benefits under this chapter.”
That Yates had knowledge of Mr. Warren’s disability is clear, as he provided Yates or its
carrier with a copy Dr. Haslam’s note. However, because the benefits awarded at this
time are based upon a lesser evidentiary standard than a final hearing, it would be
premature to conclude that Mr. Warren will, in fact, “qualify for benefits under this
chapter.” The matter of the requested penalty is more properly an issue for the final
compensation hearing of this matter.
IT IS, THEREFORE, ORDERED as follows:
1. Medical care for Mr. Warren’s injuries shall be paid and Yates or its workers’
compensation carrier shall provide Mr. Warren with medical treatment for his
injuries as required by Tennessee Code Annotated section 50-6-204 (2015),
including payment of his related medical expenses incurred to date. The Court
designates Dr. Haslam as the authorized treating physician for future treatment.
Mr. Warren or the medical providers shall furnish medical bills to Yates or its
workers’ compensation carrier.
2. The amount of temporary disability benefit is $432.65 per week based on Mr.
Warren’s average weekly wage of $648.97.
3. Yates shall pay past-due temporary total disability benefits in the amount of
$5129.99 for the period from February 10, 2016, to May 2, 2016.
4. This matter is set for an Initial (Scheduling) Hearing on October 26, 2016, at 9:30
a.m.
5. 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.
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6. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
253-1471 or (615) 532-1309.
ENTERED this the 21st day of September, 2016.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
Initial (Scheduling) Hearing:
An Initial (Scheduling) Hearing has been set with Judge Dale Tipps, Court of
Workers’ Compensation Claims. You must call 615-741-2112 or toll free at 855-
874-0473 to participate.
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
$75.00. 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
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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
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. Accident Investigation Report
2. First Report of Injury
3. Notice of Denial of Claim for Compensation
4. Notice of Termination
5. Wage Statement
6. Indexed Medical Records
7. Dr. Haslam’s March 15, 2016 chart note
8. Written statements of Gary Reed and Carlos Shelton
Technical record:5
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
5
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 Expedited Hearing Order
Granting Benefits was sent to the following recipients by the following methods of
service on this the 21st day of September, 2016.
Name Certified First Via Fax Via Email Address
Mail Class Fax Number Email
Mail
Zachary Wiley x zwiley@forthepeople.com
John R. Rucker, Jr. x jrucker@ruckerlaw.com
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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