Ferrell, Michael v. Wade Norris Logging, LLC ( 2020 )

FILED
Jun 25, 2020
12:27 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
MICHAEL FERRELL, ) Docket No. 2017-07-0828
Employee, )
v. )
WADE NORRIS LOGGING, LLC, ) State File No. 56416-2015
Employer, )
And )
FORESTRY MUT. INS. CO, ) Judge Amber E. Luttrell
Carrier. )
)
COMPENSATION HEARING ORDER
The Court held a Compensation Hearing to determine whether Mr. Ferrell is entitled
to increased benefits under Tennessee Code Annotated section 50-6-207(3)(B) or
additional benefits under section 50-6-242 as an extraordinary case. Wade Norris Logging
contended that Mr. Ferrell’s claim for benefits under either section is barred by his
termination. Alternatively, WNL contended Mr. Ferrell is limited to increased benefits
because his case is not extraordinary. For the reasons below, the Court holds Mr. Ferrell’s
termination does not prevent his award for increased benefits, and his case is extraordinary.
History of Claim
The Court previously held a Compensation Hearing on February 7, 2019,
concluding that Mr. Ferrell sustained compensable injuries to his neck, back, and inner-
ear. He was not permanently and totally disabled, and he retained a thirteen-percent
permanent impairment. This entitled him to an original award of $25,687.35 based on the
rating. His initial compensation period expired on April 5, 2019.
The facts of Mr. Ferrell’s case and the medical proof about his treatment, which was
introduced at both hearings, is summarized below.1
1
The Court provided a detailed summary of the medical testimony in its first Compensation Hearing Order
and incorporates it by reference.
1
On July 11, 2015, Mr. Ferrell sustained injuries in a work-related truck wreck, when
he drove off the road to avoid hitting a car crossing into his lane, and his truck overturned.
Mr. Ferrell injured his neck, back, and inner ear in the accident.2 He had no prior problems
with his neck but did have a previous back injury and surgery at L5-S1 in the early nineties.
WNL authorized treatment for Mr. Ferrell’s neck injury with Dr. John Brophy,
whom he selected from a panel. Dr. Brophy diagnosed a broad-based left C5-6 herniated
disc with cord compression and signal changes, and he performed surgery. After follow-
up treatment, Dr. Brophy concluded Mr. Ferrell’s cervical radiculopathy had resolved. He
testified that, from a neurosurgical standpoint, Mr. Ferrell reached maximum medical
improvement and could return to work at full duty on July 28, 2016. He assigned a six-
percent impairment and no permanent restrictions from the neck injury.
Mr. Ferrell sought an independent medical evaluation with Dr. Samuel Chung for
his neck. Dr. Chung testified that, as an evaluating physician, he does not assign permanent
restrictions. Instead, he suggested activity recommendations of avoiding overhead work,
work away from the body, and work requiring repetitive flexion, extension, and rotation of
the neck. Dr. Chung did not think Mr. Ferrell could return to truck driving or doing
“physical kinds of work” due to his back and neck surgeries and symptoms. Dr. Brophy
disagreed with Dr. Chung’s findings and activity recommendations.
Turning to the back, Dr. Brophy concluded that Mr. Ferrell’s L4-5 HNP was
unrelated to his work injury. WNL denied Mr. Ferrell’s back injury based on Dr. Brophy’s
opinion, so Mr. Ferrell sought treatment from Dr. Raymond Gardocki. Dr. Gardocki was
the only treating physician to assign permanent restrictions. Dr. Gardocki treated Mr.
Ferrell for a broad-based L4-5 herniated disc HNP, which he causally related to the work
injury. After conservative measures failed, he performed surgery.
After six months of follow-up treatment, Dr. Gardocki ordered a functional capacity
evaluation (FCE). He testified the FCE concluded Mr. Ferrell could safely work in the
light- to medium-workload category. Based on Mr. Ferrell’s description of his commercial
driving, the therapist determined he demonstrated less tolerance than required of the truck-
driving job demands. Specifically, he performed below the required tolerance of consistent
sitting, frequent bending, and occasional lifting and carrying to return to driving. Dr.
Gardocki adopted the FCE findings as permanent restrictions. He stated Mr. Ferrell reached
MMI for his back on February 20, 2018, and he assigned a seven-percent impairment. As
stated above, the Court awarded Mr. Ferrell benefits equal to thirteen percent to the body
as a whole at the first Compensation Hearing.
After Mr. Ferrell’s initial compensation period expired, he filed a Petition for
2
WNL provided authorized treatment for the inner-ear condition, with providers concluding he had a zero-
percent impairment and no permanent restrictions from a vestibular standpoint.
2
Benefit Determination asserting entitlement to increased benefits under Tennessee Code
Annotated section 50-6-207(3)(B) or Tennessee Code Annotated section 50-6-242(a) as an
extraordinary case.
At this hearing, Mr. Ferrell and Mr. Wade Norris, owner of Wade Norris Logging,
testified and the parties introduced supplemental deposition testimony from Dr. Raymond
Gardocki. For Mr. Ferrell’s vocational proof, he introduced the deposition testimony of Dr.
Woody Kennon and WNL relied on the in-person testimony of Michelle McBroom Weiss.
The Court summarizes this testimony below.
Lay testimony
Mr. Ferrell is now sixty years old, and he lives in Henderson County, Tennessee.
He completed the tenth grade and obtained a GED. He has not worked since his 2015 work
injury. As for his work history, he testified his last five jobs over the last ten to twelve years
involved truck-driving. The physical requirements of these jobs included climbing in and
out of the truck, shifting gears, securing loads, performing pre- and post-trip inspections,
and pulling the hood to check the oil. He stated he was once the owner/operator of a truck.
He has also worked as a driver and manager for a trucking company, managing/dispatching
loads, preparing paperwork, and maintaining the drivers’ DOT certifications.
Before commercial driving, he worked as a carpet installer, owner of a convenience
store, computer technician, and flea market vendor. The carpet installation work was
“extremely physical.” His work at his family-owned convenience store involved sweeping,
mopping, stocking shelves, and lifting heavy inventory. He also purchased products,
maintained inventory, operated the cash register, managed the business, and cooked.
Concerning his computer work, Mr. Ferrell is self-taught, worked in a computer store, and
performed some freelance work. He has no certification or formal training. He last worked
in computers in 1999. Mr. Ferrell testified he also sold merchandise at flea markets, which
involved buying items and reselling them.
Mr. Ferrell testified that after treatment, he has ongoing back pain, left-leg pain,
neck pain radiating down both arms, and balance difficulties. While not prescribed by a
doctor, he walks with a cane. He cannot do household chores, bush hog, mow his small
farm, or sit or stand for long periods of time. He did not renew his commercial driver’s
license because he would not pass the physical. He no longer drives at all. His adult son
assists with cooking and cleaning. He stated he feels worse now than when he underwent
the FCE. He takes 1,600 milligrams or more of ibuprofen daily.
Mr. Ferrell said he has not looked for work since WNL for several reasons. He
underwent treatment for many years after the accident and was not released until February
2018. He cannot physically drive a truck based on his permanent restrictions. He cannot
stand long enough to perform any job he is qualified to do and is limited by pain. Regarding
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computers, his knowledge is outdated. Finally, as for additional education, he could not sit
long enough to attend school, and his poor internet connection would hinder his ability to
complete an online program.
As for his termination, Mr. Ferrell testified WNL terminated him shortly after the
accident because it did not have a truck for him to drive. However, a separation notice
stated he was “terminated for cause as employee involved in wreck causing significant
property damage to truck; no truck available for employee to drive.” Mr. Ferrell maintained
that WNL never accused him of misconduct or any policy violation.
Wade Norris, WNL’s owner, testified regarding Mr. Ferrell’s termination. He stated
Mr. Ferrell called him after the accident, and he went to the scene and observed the damage
to the trailer. Mr. Norris did not see any skid marks on the road. He terminated Mr. Ferrell
several days later in part because of the damage to the truck. Although the First Report of
Injury stated that WNL prepared it, Mr. Norris testified that he does not agree with the
description of the injury. Despite his disagreement, Mr. Norris acknowledged he did not
witness the accident, could not cite any company rule Mr. Ferrell violated, and did not
discipline him.
Dr. Gardocki’s testimony
Dr. Gardocki’s supplemental deposition testimony focused on Mr. Ferrell’s
symptoms after surgery for his work injury at L4-5 versus symptoms relating to his pre-
existing condition at L5-S1 and the impact of each on the permanent restrictions Dr.
Gardocki assigned. He stated that after the May 2017 surgery, Mr. Ferrell complained of
ongoing back pain. He eventually ordered the FCE to obtain an objective basis for
assigning permanent restrictions for Mr. Ferrell’s work injury. The FCE was performed on
December 28, 2017.
Dr. Gardocki stated he believed Mr. Ferrell was having symptoms from his L5-S1
at the time of the FCE. When asked whether Mr. Ferrell’s performance on the FCE was
related to his L4-5 surgery versus his degenerative disc at L5-S1, Dr. Gardocki stated, “I
don’t think you could separate that out reasonably. There’s just too much overlap between
the two of them.” Later in his testimony, he stated, “I can’t be sure whether his performance
on the FCE was wholly from L4-5 or from L5-S1, or a little of both.” Dr. Gardocki later
confirmed that the rating and restrictions he assigned for the L4-5 level, based on the FCE,
remained the same, and he would not change the restrictions for the work injury.
Mr. Ferrell returned several times to Dr. Gardocki after he was released at MMI in
February 2018. Dr. Gardocki stated Mr. Ferrell’s L4-5 disc looked good, but he was
developing a degenerative disc at L5-S1 that was worsening, and he thought the source of
his leg pain was likely the foraminal stenosis at L5-S1.
Dr. Gardocki signed a Physician Certification Form, which states “due to permanent
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restrictions on activity the employee has suffered as a result of the injury . . . the employee
no longer has the ability to perform . . . [his] pre-injury occupation.” He testified that the
FCE that he adopted said that Mr. Ferrell should not return to his truck-driving job, and
that was the basis for him signing the form.
Vocational Proof
Mr. Ferrell underwent an in-person vocational evaluation with Woody Kennon PhD,
a licensed psychologist whose practice includes performing vocational evaluations in
workers’ compensation cases. Dr. Kennon performed several tests, and Mr. Ferrell did very
well on intellectual testing. His cognitive ability was in the “above average” range and
seventy-ninth percentile. On academic testing, Mr. Ferrell performed above a twelfth-grade
level. He tested with excellent reading and comprehension skills atypical for someone with
a GED. His cognitive ability is at a college level, and Dr. Kennon stated he demonstrated
the ability to learn.
Mr. Ferrell’s truck-driving work at WNL was in the medium-strength category. Dr.
Kennon performed a transferrable skills analysis and considered the restrictions placed by
Dr. Gardocki, putting him in the light to medium-work category. However, when
considering Mr. Ferrell’s limitations in sitting, standing and walking, Dr. Kennon placed
him in the sedentary category. Based on these findings, he concluded Mr. Ferrell suffered
a 91.46% loss of highly transferrable jobs and a ninety-percent loss of moderately
transferrable jobs. Based on Dr. Chung’s activity recommendations, Dr. Kennon testified
Mr. Ferrell suffered a 96.78% loss of highly transferrable jobs and 99.57% of moderately
transferrable jobs.
Dr. Kennon acknowledged that Mr. Ferrell’s vocational opportunities would have
been greater if he had considered light to medium jobs instead of sedentary only. He further
acknowledged that Dr. Chung’s opinion that Mr. Ferrell could not do “any kind of physical
work” was inconsistent with Dr. Brophy’s and Dr. Gardocki’s testimony, and as
demonstrated by the FCE.
Turning to WNL’s vocational proof, Michelle McBroom Weiss holds a master’s
degree in vocational rehabilitation, and her practice includes performing vocational testing
and evaluations in workers’ compensation cases.3 Ms. Weiss reviewed Mr. Ferrell’s
medical records, the FCE, medical depositions, interrogatories, and Dr. Kennon’s report.
She interviewed Mr. Ferrell, used his academic and intelligence test results from Dr.
Kennon’s evaluation, and performed a pre-injury work profile and transferrable skills
analysis using the local labor market. As for restrictions, Ms. Weiss testified that Dr.
3
Ms. Weiss testified that due to the pandemic, the evaluation was conducted telephonically. She did not
perform her own testing because the evaluation was not in-person. However, she stated she administers the
same academic and intelligence testing as Dr. Kennon and, in general, her test results are very similar to
Dr. Kennon’s.
5
Brophy assigned no permanent restrictions; therefore, she used Dr. Gardocki’s restrictions
from the FCE, which stated Mr. Ferrell was in the light-to medium safe workload level.
She noted the FCE-specific test results showed he could sit for fewer than fifteen minutes,
stand less than forty minutes, and intermittently stand, sit, and walk less than sixty minutes.
She stated his weight-lifting abilities were at the medium level. Dr. Gardocki adopted the
therapist’s conclusion that Mr. Ferrell’s demonstrated tolerance was less than the required
demands of a commercial truck driver.
Ms. Weiss found Mr. Ferrell experienced a twenty-four to twenty-six percent loss
of access to jobs in West Tennessee. She stated that, if she considered the FCE to restrict
him to limited light work, Mr. Ferrell would have a fifty-seven percent loss of access to
jobs in the Jackson metropolitan area. She further found a thirty-three percent loss of wage-
earning capacity. She concluded Mr. Ferrell’s overall vocational disability, based on Dr.
Gardocki’s restrictions, is thirty percent for limited medium-level work and forty-five
percent for limited light work. Mr. Ferrell’s overall vocational disability for the neck was
zero percent based on Dr. Brophy assigning no restrictions.
Ms. Weiss disagreed with Dr. Kennon’s decision to consider sedentary jobs in his
transferrable skills analysis instead of light to medium jobs. She explained that sedentary
jobs involve predominantly sitting, which Mr. Ferrell would have difficulty doing. She
stated that light to medium jobs are a “better match” with his restrictions and the FCE
findings regarding his ability to sit, stand, and walk, because it considers jobs where he can
alternate sitting, standing, and walking. She further disagreed with Dr. Kennon’s use of Dr.
Chung’s activity recommendations in his analysis because, as an evaluating physician, Dr.
Chung provided recommendations not restrictions. She also stated Dr. Chung’s
recommendations were too vague to assist her in assessing Mr. Farrell’s vocational
situation.
Findings of Fact and Conclusions of Law
At a Compensation Hearing, the employee must establish by a preponderance of the
evidence that he is entitled to the requested benefits. Willis v. All Staff, 2015 TN Wrk.
Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-
239(c)(6) (2019).
The Court first considers whether Mr. Ferrell is entitled to increased benefits under
Tennessee Code Annotated section 50-6-207(3)(B). Under that statute, he is entitled to
increased benefits if, at the time his initial benefit period expired, he had not returned to
work at the same or greater wage earned at the time of injury. The proof is uncontroverted
that Mr. Ferrell had not returned to work when his initial compensation period expired.
However, section 50-6-207(3)(D)(ii) provides an employee is not entitled to increased
benefits when his loss of employment is due to misconduct. WNL argued Mr. Ferrell is not
entitled to additional benefits based on misconduct in having a wreck. The Court finds this
argument meritless.
6
Mr. Ferrell gave credible, uncontroverted testimony that the collision causing his
work injury occurred when he swerved to avoid hitting a car encroaching his lane of traffic.
Mr. Norris insinuated the wreck was his fault; however, he was not a witness to the
accident, had no personal knowledge of it, and introduced no proof to contest Mr. Ferrell’s
version of the accident. Moreover, Mr. Norris could not cite any rule Mr. Ferrell violated
and admitted he did not discuss the termination or discipline him. Thus, the Court holds
Mr. Ferrell is not barred from additional benefits based on misconduct and is entitled to
increased benefits under section 50-6-207(3)(B).
Next, the Court considers whether Mr. Ferrell is entitled to additional benefits under
section 50-6-242(a) instead of section 50-6-207(3)(B). To receive additional benefits, the
Court must find this is an extraordinary case and that, by clear and convincing evidence, it
would be inequitable to limit Mr. Ferrell’s recovery to only the benefits under section 50-
6-207(3)(B). Further, the Court must make specific, documented findings that as of the
date of the award: (1) Mr. Ferrell has an impairment rating of at least ten percent to the
body as a whole according to the AMA Guides from the authorized treating physician; (2)
the authorized treating physician certified on a Bureau form that he no longer has the ability
to perform his pre-injury occupation due to permanent restrictions from the work injury;
and (3) he is earning less than seventy percent of the pre-injury average weekly wage or
salary. See generally Tenn. Code Ann. § 50-6-242(a) (Emphasis added).
WNL argued that Mr. Ferrell is not entitled to benefits under this section because
he did not establish all three factors by a preponderance of the evidence.
As for the first and second factors, WNL argued the statute requires Mr. Farrell to
prove that he has at least a ten-percent impairment rating and provide a Physician
Certification Form from the same authorized treating physician. WNL contended that Mr.
Ferrell did not meet these requirements because Dr. Gardocki provided the Physician
Certification Form, and his rating was less than ten percent. The Court disagrees. WNL’s
argument overly restricts section 50-6-242(a)(2), suggesting that an employee can only
have one authorized treating physician. This discounts cases like this one where an
employee has injuries to multiple body parts, with multiple impairment ratings from more
than one authorized physician. In the previous Compensation Hearing Order, this Court
designated Dr. Gardocki as Mr. Ferrell’s authorized treating physician for his back and
held Mr. Ferrell sustained a total permanent impairment of thirteen percent to the body as
a whole, based on the AMA Guides, from the combined ratings of six and seven percent
from Drs. Brophy and Gardocki. Thus, at the time of the award, specifically the trial for
additional benefits, Dr. Gardocki was an authorized treating physician, and the Court finds
Mr. Ferrell had a thirteen-percent impairment.
As to the second factor, the Court finds that Mr. Ferrell’s authorized physician, Dr.
Gardocki, certified on a form that Mr. Ferrell no longer has the ability to perform his pre-
injury occupation due to permanent restrictions from the injury. Under Tennessee Code
7
Annotated section 50-6-242(a)(2)(B), Dr. Gardocki’s certification is presumed correct and
may only be overcome by contrary clear and convincing evidence. WNL offered no
medical proof refuting Dr. Gardocki’s opinion but relied solely on its cross-examination of
him. The cross-examination failed to establish clear and convincing evidence to overcome
Dr. Gardocki’s certification.
WNL also challenged whether Dr. Gardocki’s permanent restrictions resulted from
his work injury or his pre-existing L5-S1 condition. Dr. Gardocki assigned permanent
restrictions for the L4-5 back injury of light to medium work based on FCE findings, which
also concluded Mr. Ferrell could not return to truck driving. In Dr. Gardocki’s deposition,
WNL questioned whether Mr. Ferrell’s L5-S1 symptoms impacted his performance on the
FCE. He responded, “I don’t think you could separate that out reasonably. There’s just too
much overlap between the two of them.” However, Dr. Gardocki did not change his opinion
regarding restrictions for the L4-5 work injury. He testified that the restrictions he assigned
for the L4-5 level, based on the FCE, “remained the same,” and he would not change them.
As for his “pre-injury occupation,” Mr. Ferrell’s uncontroverted testimony was that
his last five jobs over the last ten to twelve years involved mostly truck-driving. He testified
that he dispatched, managed loads, and did paperwork for one employer, but he also drove
a truck at that time. The Court holds that Mr. Ferrell’s pre-injury occupation was truck-
driving, and WNL did not present clear and convincing evidence to overcome the
presumption of correctness afforded Dr. Gardocki’s opinion that Mr. Ferrell can no longer
perform that occupation due to permanent restrictions from his work injury.
As to the third factor, WNL did not rebut Mr. Ferrell’s testimony that he has not
worked since his termination from WNL. Thus, he established that he is not earning an
average weekly wage or salary greater than seventy percent of his pre-injury wage.
Accordingly, the Court holds Mr. Ferrell demonstrated all three factors supporting an
award for additional disability benefits.
The Court next examines the totality of the circumstances in assessing whether it is
inequitable to limit Mr. Ferrell’s award to increased benefits. Mr. Ferrell testified to
ongoing neck, arm, back, and leg pain, as well as balance difficulties. He no longer drives
a car and cannot perform household chores or maintain his yard. He described difficulty
sitting, standing, and walking for long periods of time, which the FCE corroborated. These
findings are important because the Appeals Board has held that “an employee’s assessment
as to his or her own physical condition is competent testimony that is not to be
disregarded.” Limberakis v. Pro-Tech Sec., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS
53, at *5-6 (Sept. 12, 2017).
Mr. Ferrell remains under restrictions from Dr. Gardocki that preclude him from
returning to commercial trucking. Both vocational experts considered Dr. Gardocki’s
restrictions when analyzing Mr. Ferrell’s transferrable skills, employment opportunities,
8
and vocational disability, and they arrived at vastly different conclusions. Ms. Weiss
concluded his restrictions and findings were consistent with limited light to limited medium
jobs, and his vocational disability ranged from thirty percent for limited medium-level
work and forty-five percent for limited light work. Dr. Kennon, on the other hand, found
Mr. Ferrell’s restrictions limited him to only sedentary jobs and concluded Mr. Ferrell had
at least a ninety percent loss of access to jobs.
After considering the experts’ testimony, the Court finds Ms. Weiss’s testimony
more persuasive and more accurately represents the vocational impact of Mr. Ferrell’s
injuries. Dr. Kennon’s consideration of only sedentary jobs and his reliance on Dr. Chung’s
vague activity recommendations was inconsistent with Mr. Ferrell’s permanent restrictions
and his treating physicians’ testimony. Thus, the Court finds Ms. Weiss’s testimony more
helpful in assessing Mr. Ferrell’s award of permanent disability benefits.
Based on Ms. Weiss’s testimony, the Court finds Mr. Ferrell’s work capabilities,
considering the totality of the proof and Mr. Ferrell’s need to alternate sitting, standing,
and walking, fall in the limited light-work level and assesses his vocational disability to be
forty-five percent. If Mr. Ferrell were limited to the original award and increased benefits,
he would receive approximately 94.7 weeks or 21.06% PPD, which is significantly less
than Ms. Weiss’s assessment.
Thus, in light of the totality of the circumstances, the Court finds by clear and
convincing evidence that limiting Mr. Ferrell to benefits under section 50-6-207(3)(B)
would be inequitable and awards him 202.5 weeks or forty-five percent PPD under section
50-6-242. WNL paid Mr. Ferrell 58.5 weeks of benefits as an original award, which leaves
a balance of 144 weeks. At his weekly compensation rate of $439.10, Mr. Ferrell is
awarded $63,230.40 in additional benefits.
Discretionary Costs
Mr. Ferrell’s counsel sought discretionary costs under Rule 54 of the Tennessee
Rules of Civil Procedure. Specifically, he requested $650 for Dr. Kennon’s deposition;
$273.65 for the court reporter for Dr. Kennon’s deposition; and $101.75 for Dr. Gardocki’s
deposition.
Rule 54.04(2) provides recovery for reasonable and necessary “court reporter
expenses for depositions” and “expert witness fees for depositions.” Garassino v. W.
Express, Inc., No. M2016-02431-SC-R3-WC, 2018 Tenn. LEXIS 60, at *8-9 (Tenn.
Workers’ Comp. Panel Feb. 8, 2018). Here, because the Court accepted Ms. Weiss’s
vocational opinion, the Court, in its discretion, denies the request for costs associated with
Dr. Kennon’s deposition. The Court holds WNL shall pay discretionary costs of $101.75.
9
IT IS, THEREFORE, ORDERED as follows:
1. Wade Norris Logging or its carrier shall pay Mr. Ferrell additional benefits of 144
weeks or $63,230.40.
2. Wade Norris Logging shall continue to pay reasonable and necessary future medical
expenses as required by the previous Compensation Hearing Order.
3. Mr. Ferrell’s attorney fee will exceed $10,000. Therefore, Mr. Ferrell’s attorney
shall file an application for approval of fees within five business days, outlining the
factors identified in Tennessee Supreme Court Rule 8, Rules of Profession Conduct
1.5. See Tenn. Code Ann. 50-6-226(2)(C).
4. Wade Norris Logging shall pay Mr. Ferrell’s discretionary costs of $101.75.
5. Court costs of $150.00 are assessed against Wade Norris Logging under Tennessee
Compilation Rules and Regulations 0800-02-21-.06 (August, 2019), to be paid
within five days of this order becoming final. Wade Norris Logging shall file a
statistical data form (SD2) within ten business days of the date of this order under
Tennessee Code Annotated section 50-6-244.
6. Absent an appeal of this order, it shall become final thirty days after issuance.
ENTERED June 25, 2020.
_____________________________________
JUDGE AMBER E. LUTTRELL
Court of Workers’ Compensation Claims
APPENDIX
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Scheduling Order
4. Motion to Extend
5. Order Granting Motion to Extend Scheduling Order Deadlines
6. Amended Scheduling Order
7. Employer’s Motion to Extend Deadlines
8. Employee’s Objection to Motion to Extend Deadlines
9. Employee’s Amended Objection to Motion to Extend Deadlines
10. Order on Employer’s Motion to Extend Deadlines
10
11. Order Confirming Compensation Hearing
12. Employee’s Witness and Exhibit List
13. Employer’s Witness and Exhibit List
14. Employee’s Trial Brief
15. Employer’s Pre-Trial Brief
16. Employer’s Supplemental Pre-Trial Brief
17. March 13, 2019 Compensation Hearing Order Granting Benefits (original award)
18. Joint Pre-Compensation Hearing Statement
19. Dispute Certification Notice (post-discovery)
Exhibits:
1. First Report of Injury
2. Separation Notice
3. Photographs (collective exhibit-3 pages)
4. Physician Certification Form- Dr. Raymond Gardocki
5. Employer’s Vocational Report- Michelle McBroom Weiss
a. Curriculum Vitae of Michelle McBroom Weiss
6. Dr. Gardocki’s deposition
7. Dr. Chung’s deposition
8. Dr. Brophy’s deposition
9. Dr. Gardocki’s supplemental deposition
10. Dr. Woody Kennon’s deposition
11. Motion to Assess Discretionary Costs
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on June 25, 2020.
Name Via Email Service sent to:
David Hardee, Employee’s Attorney X kperry@hmdlaw1.com
Jeff Foster, Employer’s Attorney X jfoster@morganakins.com
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, 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 thirty calendar days of the
date the compensation hearing 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 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 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 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. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar 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
of the evidence 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. 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. The appealing
party has fifteen calendar days after the date of that notice to submit a brief to the
Appeals Board. See the Practices and Procedures of the Workers’ Compensation
Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. 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. See 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]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082