Miller, Torris v. TA Operating Corp.

FILED
October 12, 2015
DCOl.iRTOF
WORKERS' CO:.IPE'ISATIO'I
CLAI.\iS
Time: 10:47 AM
COURT OF WORKERS' COMPENSATION CLAIMS
AT JACKSON
TORRIS MILLER, ) Docket No.: 2015-07-0114
Employee, )
v. ) State File No.: 95843-2014
)
TA OPERATING CORP., ) Judge Amber E. Luttrell
Employer, )
And )
)
AMERICAN ZURICH INS. CO., )
Insurance Carrier. )
)
)
EXPEDITED HEARING ORDER FOR TEMPORARY DISABILITY BENEFITS
THIS CAUSE came before the undersigned Workers' Compensation Judge upon
the Requests for Expedited Hearing (REH) filed by the employee, Torris Miller, pursuant
to Tennessee Code Annotated section 50-6-239 (2014). Mr. Miller seeks past medical
and temporary disability benefits for a back injury. The primary issues before the Court
concern when Mr. Miller gave notice of a work-related injury triggering the employer's
obligation to furnish a panel of physicians and initiate temporary disability benefits, and
whether the employee's termination for job abandonment precludes him from receiving
ongoing temporary disability benefits. For the reasons set forth below, the Court finds
Mr. Miller carried his burden of proving entitlement to temporary disability benefits, but
did not establish the requisite proof for an award of past medical expenses.
History of Claim
Mr. Miller is a forty-four-year-old resident of Madison County, Tennessee, who
worked for TA Operating as a diesel mechanic. Mr. Miller worked the night shift from
six o'clock in the evening until six o'clock the following morning.
On November 3, 2014, while changing a tractor-trailer tire, Mr. Miller stooped to
remove the lug nuts with an air gun weighing one hundred pounds and experienced
sudden pain from his low back to his left foot. Mr. Miller continued working and
finished changing the tire. His back pain increased; therefore, at the end of his shift on
November 4, 2014, Mr. Miller reported the injury to his immediate supervisor, Kevin
Corbin. Mr. Miller testified he told Mr. Corbin he "messed up something in his back"
and described how it happened. Mr. Corbin advised he would file a workers'
compensation claim. However, Mr. Miller responded, "Don't do that because I'll lose
my job. It may be just a strain or pull and I don't want to lose my job." 1 Despite his
request, Mr. Miller testified that Mr. Corbin insisted he must file a workers'
compensation claim under Tennessee law. Following this conversation, Mr. Miller
believed Mr. Corbin filed a workers' compensation claim for his back injury. TA
Operating did not give Mr. Miller a report of injury to sign or offer a panel of physicians
at that time.
On November 5, 2014, Mr. Miller sought treatment from Dr. Michael Pearson, a
chiropractor at Sports Orthopedic and Spine Clinic. (Ex. 1 at 5-8.) He gave a history of
acute low-back pain and weakness in the left leg following a November 3, 2014 injury
while lifting an impact gun at work. Following a physical exam, Dr. Pearson diagnosed
lumbalgia, muscle spasms, probable lumbar degenerative disc disease, and possible
lumbar radiculitis. He ordered ultrasound therapy and took Mr. Miller off work for a few
days. Mr. Miller continued therapy until November 19, 2014, when Dr. Pearson referred
him to Dr. Keith Nord for an orthopedic evaluation.
On November 19, 2014, Mr. Miller saw Dr. Nord and reported continued low-
back pain and pain running down his left leg. Id. at 14-20. Dr. Nord diagnosed a lumbar
strain, ordered an MRI, and took Mr. Miller off work. The MRI revealed disc
abnormalities at multiple levels. Dr. Nord diagnosed "intervertebral disc rupture," and
referred Mr. Miller to Dr. Roy Schmidt for an LES injection. 2 He kept Mr. Miller off
work. Id. at 22-31.
Mr. Miller presented to Dr. Schmidt on December 22, 2014. Id. at 34-35. He
informed Dr. Schmidt of his November work injury to his back. Dr. Schmidt noted the
visit was under Mr. Miller's personal health insurance; however, Mr. Miller reported it as
a work injury and stated "WC is involved now." Dr. Schmidt scheduled the LES
injection and kept Mr. Miller off work. Id. at 33. On January 6, 2015, Dr. Schmidt
performed an LES injection at the L3-4 level on the left. He kept Mr. Miller off work,
and referred him to physical therapy. Id. at 37-38. Mr. Miller completed therapy and
returned to Dr. Nord on March 30, 2015. Id. at 69.
According to Mr. Miller's undisputed testimony, he regularly communicated with
TA Operating while undergoing medical treatment for his work injury. Specifically, Mr.
1
Mr. Miller testified his apprehension was based upon his experience with a previous employer, who terminated
him fo II owing his report of a work-related shoulder injury.
2
Dr. Nord did not indicate the level ofthe disc rupture in his diagnosis.
2
Miller testified his wife drove him to TA Operating's office after every doctor's
appointment, and he personally gave Arnold Wells, the general manager, or another
manager his work-status note from the doctor showing he was off work. Mr. Miller also
communicated with Mr. Wells on the telephone in December 2014, concerning his work
injury. A written statement from Mr. Wells confirmed he spoke on the telephone to Mr.
Miller on December 1, 2014, regarding his back injury and possible surgery. In the
statement, Mr. Wells stated, "Mr. Miller told me that he was concerned that his insurance
would not pick up the bill once they found out he done it at work." (Ex. 2C.) Mr. Wells
further stated that Mr. Miller did not want to tum this into a workers' compensation
claim, and he refused to make a statement since an online report had already been filed.
Mr. Wells' statement further indicated that Mr. Miller commented he would not see the
medical doctor provided by the company. 3 ld.
Mr. Miller acknowledged speaking to Mr. Wells in December 20 14; however, he
denied refusing medical treatment to Mr. Wells or telling him that he did not want to file
a workers' compensation claim. Although there appears to be a dispute over the details
of the December 1, 2014 telephone conversation, the following day Mr. Wells prepared
and filed an Employer's First Report of Work Injury. (Ex. 6.) In the report, Mr. Wells
identified the November 3, 2014 injury date, and noted Mr. Miller notified the employer
ofhis injury on November 5, 2014. 4
Mr. Miller received a letter dated December 17, 2014, from TA Operating's senior
vice-president acknowledging his workers' compensation claim and requesting that Mr.
Miller submit for a post-accident drug test on or before December 23, 2014. (Ex. 7.) Mr.
Miller complied and submitted to a drug screen on December 22, 2014.
Following the drug test, Mr. Miller testified he called Mr. Wells and asked
whether he would receive workers' compensation temporary benefits or unemployment
benefits from TA Operating. Mr. Wells responded he could not speak to him because he
was represented by counsel. TA Operating did not offer Mr. Miller a panel of physicians
at any of these interactions in the month of December 2014.
TA Operating's workers' compensation carrier requested a recorded statement
from Mr. Miller through counsel at the end of January 2015. The adjuster took Mr.
Miller's statement on February 24, 2015. TA Operating subsequently offered Mr. Miller
a panel of orthopedic physicians, and he selected Dr. Nord on March 11, 2015.
Mr. Miller returned to Dr. Nord on March 30, 2015, for authorized treatment. Dr.
3
The Court notes TA Operating had not offered Mr. Miller any medical treatment at the time Mr. Wells prepared his
statement.
4
The Court notes the November 5 date is one day after Mr. Miller testified he reported the injury to Mr. Corbin on
November 4. However, the Court does not find this minor inconsistency material, considering either date is well
within the thirty-day period to give proper notice under Tennessee Code Annotated section 50-6-201 (2014).
3
Nord recommended ongoing treatment; however, he opined Mr. Miller could return to
work on restricted duty of no lifting over ten pounds and alternating sitting/standing.
When his counsel contacted TA Operating regarding returning to work on light duty, Mr.
Miller learned that TA Operating terminated him on January 29, 2015, for what the
employer described as a "voluntary separation." (Ex. 2A.) At the hearing, TA Operating
alleged that Mr. Miller abandoned his job effective January 29,2015.
Mr. Miller's termination stemmed from Mr. Miller's visit to the office to pick up
his tools. The parties disputed the actual date of this visit at the hearing. Regardless of
the date, the parties agreed that Mr. Miller did, in fact, come to the office to pick up his
personal toolbox. Mr. Miller testified that someone previously stole tools from his
toolbox. Given the period of time Mr. Miller was off work, he stated he went to the
office with two friends to pick up his toolbox for safekeeping. The toolbox was too large
and heavy to pick up by himself; therefore, his friends loaded the tool box on a truck. At
that time, Mr. Miller spoke to Mr. Wells at the office, and Mr. Wells stated, "You aren't
leaving me, are you?" Mr. Miller responded, "No, that will never happen." He told Mr.
Wells he was simply concerned about his tools. Mr. Wells assisted Mr. Miller by placing
bags over the top of the toolbox to protect it from the rain.
Somewhat contrary to Mr. Miller's account, TA Operating's Personnel Action
Form notes, "The employee came into the shop and removed his tool box. A notice was
not given to management as to what his intentions were. The employee has not returned
to work as of this date." !d. 5 The form is signed by Mr. Wells and Becky Weatherholt,
the bookkeeper. Mr. Miller testified he did not see Ms. Weatherholt when he visited the
office. He contended he spoke to Mr. Wells and made clear he was not resigning.
Mr. Miller continues to receive authorized medical treatment. Dr. Nord referred
Mr. Miller for a neurosurgical evaluation. Subsequently, TA Operating offered Mr.
Miller a panel of neurosurgeons, and he selected Dr. Parsioon.
TA Operating declined to pay temporary disability benefits, and also declined to
pay Mr. Miller's medical expenses prior to February 24, 2015, the date of Mr. Miller's
recorded statement. Mr. Miller filed a Petition for Benefit Determination on June 16,
2015. (T.R. 1.) The parties did not resolve the disputed issues through mediation;
therefore, the Mediation Specialist filed the Dispute Certification Notice on July 27,
2015.
Findings of Fact and Conclusions of Law
The Workers' Compensation Law shall not be remedially or liberally construed in
5
Employer concedes that the Personnel Action Form dated January 29, 2015, contains a typographical error. In the
"termination" section, it states Mr. Miller's last day worked was November 1, 2014, which was two days prior to his
work injury. They admit that date is incorrect. However, they failed to offer the correct date.
4
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987);6 Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element
of his or her 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 *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27,
20 15). At an expedited hearing, an employee has the burden to come forward with
sufficient evidence from which the trial court can determine that the employee is likely to
prevail at a hearing on the merits. !d.
Notice
Tennessee Code Annotated section 50-6-201(a)(1) (2014) provides that an injured
employee "shall, immediately upon the occurrence of an injury, or as soon thereafter as
practicable, give or cause to be given to the employer who has no actual notice, written
notice of the injury ... within thirty (30) days after the occurrence of the accident." The
notice should reasonably convey the idea that the employee has suffered an injury arising
out of and in the course of his employment. Masters v. Industrial Garments Mfg. Co.,
Inc., 595 S.W.2d 811, 816 (Tenn. 1980). Courts will consider the following criteria in
determining whether an employee demonstrates a reasonable excuse for failure to give
notice: (1) the employer's actual knowledge of the employee's injury, (2) lack of
prejudice to the employer by an excusing of the requirement, and (3) the excuse or
inability of the employee to timely notify the employer. Gluck Brothers, Inc. v. Pollard,
426 S.W.2d 763, 766 (Tenn. 1968).
In the present case, TA Operating contended Mr. Miller failed to give written
notice of his work injury pursuant to Tennessee Code Annotated section 50-6-201 (20 14)
until he provided his recorded statement to the adjuster on February 24, 2015. Thus, TA
Operating submitted that Mr. Miller is not entitled to any medical or temporary disability
benefits prior to February 24, 2015. The Court respectfully disagrees.
The Court finds the undisputed proof reveals Mr. Miller sustained a work injury to
his back on November 3, 2014, and properly reported it to his immediate supervisor, Mr.
6
The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July 1, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers ' Compensation
law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
5
Corbin, at the conclusion of his shift on November 4, 2014. The Court finds Mr. Miller's
immediate report of injury, combined with TA Operating's actions in December of filing
a First Report of Injury and requiring Mr. Miller submit to an post-accident drug test,
demonstrate TA Operating's actual notice of the work injury in accordance with
Tennessee Code Annotated section 50-6-201 (2014). Moreover, the Court finds that TA
Operating had actual knowledge that Mr. Miller's work injury required treatment by a
physician who placed him off work due to the injury. Accordingly, the Court finds Mr.
Miller came forward with sufficient evidence from which the Court concludes he is likely
to prevail at a hearing on the merits regarding notice.
Temporary Total Disability
Temporary total disability (TTD) is payable to an injured employee who is
totally disabled to work by her injury and while she is recovering as far as the
nature of the injury permits. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 776
(Tenn. 2000). Under Tennessee law, to establish entitlement to TTD, the employee
must show he was "( 1) totally disabled to work by a compensable injury; (2) that
there was a causal connection between the injury and [his] inability to work; and
(3) the duration of that period of disability. Gray v. Cullom Mach., Tool & Die, Inc.,
152 S.W.3d 439, 443 (Tenn. 2004); Jewell v. Cobble Construction and Arcus
Restoration, No. 2014-05-0003, 2015 TN Wrk. Comp. App. Bd. LEXIS 1, at *21 (Tenn.
Workers' Comp. App. Bd. Jan. 12, 2015). When an employee demonstrates the ability
to return to work or attains maximum medical improvement, then TTD benefits are
terminated. Jewell, 2015 TN Wrk. Comp. App. Bd. LEXIS 1, at *21.
Here, the Court finds that the November 3, 2014 back injury prevented Mr. Miller
from working. Thus, he is entitled to TTD benefits. The medical records establish that
Drs. Pearson, Nord, and Schmidt placed Mr. Miller off work most weeks between
November 5, 2014, and March 30, 2015. The Court finds the medical records do not
address Mr. Miller's work status from November 9, 2014, through November 18, 2014
(six days), or February 4, 2015, through March 29, 2015 (thirty-nine days). Therefore,
Mr. Miller has not provided proof of entitlement to TTD for those two periods.
Excluding these two periods, the Court concludes that Mr. Miller is entitled to twelve
weeks of past-due TTD benefits. 7
Temporary Partial Disability
Temporary partial disability (TPD) refers to the time during which the injured
employee is able to resume some gainful employment but has not yet reached maximum
recovery. Williams v. Saturn Corp., No. M2004-01215-WC-R3-CV, 2005 Tenn. LEXIS
1032, *3 (Tenn. Workers' Comp. Panel Nov. 15, 2005); Jewell, 2015 TN Wrk. Comp.
7
The Court notes a Child Support Income Withholding Order admitted into evidence as Exhibit 4.
6
App. Bd. LEXIS 1, at *21-22.
The medical records indicate on March 30, 2015, Dr. Nord returned Mr. Miller to
work with light-duty restrictions of no lifting greater than ten pounds and alternating
sitting and standing. Based upon these restrictions, Mr. Miller would not be entitled to
TTD benefits. However, he may be entitled to TPD benefits.
Ms. Weatherholt stated in her affidavit the company had temporary positions
available to Mr. Miller while on restricted duty. (Ex. 2.) Based upon Ms. Weatherholt's
statement, TA Operating contended it could have accommodated Mr. Miller's restrictions
but for his termination for job abandonment on January 29, 2015. Thus, TA Operating
submitted that Mr. Miller's termination for cause precludes him from receiving TPD
benefits. Mr. Miller contended that he never resigned his position with TA Operating,
and his termination on that basis was improper.
The Court carefully considered TA Operating's position that Mr. Miller's
termination for job abandonment precludes him from receiving TPD benefits. However,
based upon the evidence in this case, the Court disagrees. The only proof before the
Court regarding the basis for Mr. Miller's termination was a "Personnel Action Form"
that simply checks a box by "termination" and lists the reason as a ''voluntary
separation." The "additional comments" section of the form indicates when Mr. Miller
picked up his tools, "A notice was not given to management as to what his intentions
were. The employee has not returned to work as of to date." (Ex. 2A.)
Mr. Miller had not returned to work because Dr. Schmidt took him off work in
January for his work-related back injury. The Court further finds Mr. Miller credible
when he testified he specifically told Mr. Wells he was not resigning when he picked up
his toolbox. The Court accepts Mr. Miller's explanation that he wanted to secure his
tools to avoid theft while he was off work. The evidence indicates this trip likely
occurred in January 20 15, as reflected in the Personnel Action Form, rather than March
2015. However, the Court finds Mr. Miller's poor recollection of dates does not discount
his otherwise credible testimony concerning his visit to the office. 8 Even if minor and
insignificant details vary, an injured worker should not be penalized simply for being a
poor historian. Orman v. William Sonoma, 803 S.W.2d 672, 677 (Tenn. 1991).
Accordingly, the Court finds Mr. Miller's termination was improper, and that Mr. Miller
is entitled to TPD from March 30, 2015, and ongoing until released without restrictions
by an authorized treating physician, is able to resume gainful employment, or until placed
atMMI.
8
The Court notes that Dr. Schmidt's January 6, 2015 record states, "Pt had been put off work in November and is
asking when he [can] go back to work as a diesel mechanic." (Ex. I at 36.) The Court finds this statement to Dr.
Schmidt in January supports Mr. Miller's contention that he had no intention of resigning his employment.
7
Compensation Rate
A dispute exists regarding the compensation rate of $296.47 reflected in the wage
statement. Mr. Miller contested the wage statement, arguing that it does not accurately
reflect the commission he earned at TA Operating after completing his three months of
training. The dispute centered around the date Mr. Miller began working for TA
Operating and when he started earning commission. Mr. Miller initially testified he
began work in May 2014. However, during cross-examination, Mr. Miller conceded he
was confused on the dates and agreed he actually started in August 2014. Nevertheless,
Mr. Miller challenged the accuracy of the wage statement. After hearing extensive
testimony regarding this issue, the Court finds that Mr. Miller has not come forward with
any evidence supporting his contention that the wage statement is incorrect. Thus, the
compensation rate for Mr. Miller's temporary disability benefits shall be $296.47 per
week.
Payment of Medical Expenses
Where an employer fails to give the employee the opportunity to choose the
ultimate treating physician from a panel of physicians, it runs the risk of having to pay
the reasonable cost for treatment of the employee's injuries by a physician of the
employee's choice. Lindsey v. Strohs Companies, Inc., 830 S.W.2d 899, 902 (Tenn.
1992). The liability of an employer for medical expenses incurred by the employee on
his own turns on whether, under the circumstances, the employee was justified in
obtaining further medical services without first consulting the employer. Pickett v.
Chattanooga Convalescent and Nursing Home, Inc., 627 S.W.2d 941, 944 (Tenn. 1982).
The Tennessee Supreme Court held that, when an employee receives medical care for a
work-related injury that the employer did not authorize, the employee must establish the
necessity and reasonableness of the charges before the employer is responsible. Moore v.
Town of Collierville, 124 S.W.3d 93, 98 (Tenn. 2004).
Having found Mr. Miller gave proper notice to TA Operating of a work-related
back injury on November 4, 2014, the Court finds TA Operating failed to timely offer
Mr. Miller a panel of physicians pursuant to Workers' Compensation Law. Despite
notice of a work injury, TA Operating did not offer Mr. Miller a panel until early March
20 15. Thus, the Court finds Mr. Miller justified in seeking medical treatment on his own.
The Court further finds the treatment provided by Drs. Pearson, Nord, Schmidt, and
Jackson Physical Therapy medically necessary for Mr. Miller's work-related back injury.
However, Mr. Miller did not offer any proof as to the reasonableness of the medical
charges incurred. Thus, pursuant to Moore, the Court must deny his request for payment
of these charges, at this time. Id. at 98.
8
IT IS, THEREFORE, ORDERED as follows :
1. The temporary disability benefit rate is $296.47 per week based upon Mr. Miller's
average weekly wage of $444.71.
2. TA Operating or its workers' compensation carrier shall pay Mr. Miller past-due
TTD benefits in the amount of $3,557.64 for a twelve-week period beginning
November 5, 2014, through March 30, 2015, which excludes November 9, through
November 18, 2014, and February 4, through March 29, 2015. The TTD benefits
awarded are subject to the Child Support Income Withholding Order admitted into
evidence as Exhibit 4.
3.· TA Operating or its workers' compensation carrier shall pay Mr. Miller past-due
TPD benefits beginning March 30, 2015, at the rate of $296.47 per week until he
is no longer eligible for those benefits by: 1) reaching MMI; 2) returning to work
at a wage equal to or greater than the pre-injury wage, or 3) release without
restrictions by the authorized treating physician. TA Operating's representative
shall immediately notify the Bureau, Mr. Miller and Mr. Miller's counsel of the
intent to terminate temporary disability benefits by filing Form C-26, citing the
basis for the termination. The TPD benefits awarded are subject to the Child
Support Income Withholding Order admitted into evidence as Exhibit 4.
4. Mr. Miller's request for payment of the medical bills of Sports Orthopedic &
Spine, Dr. Schmidt, and Physical Therapy of Jackson for services prior to
February 24, 2015, is denied. At this time, Mr. Miller has not come forward with
sufficient evidence from which the Court may conclude he is likely to prevail at a
hearing on the merits on this issue.
5. This matter is set for an Initial (Scheduling) Hearing on December 9, 2015, at 9
a.m. (CDT).
6. 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) (2014). 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.
9
7. 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.
Ju
Court of Workers' Compensation Claims
Initial (Scheduling) Hearing:
An Initial (Scheduling) Hearing has been set with Judge Amber E. Luttrell,
Court of Workers' Compensation Claims. You must call 901-543-2668 or toll-free
at 855-543-5046 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
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
10
will consider the Affidavit of lndigency 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
lndigency 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
three 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 three 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.
11
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order for
Temporary Disability Benefits was sent to the following recipients by the following
methods of service on this the 12th day of October, 2015.
Name Certified Via Via Service sent to:
Mail Fax Email
Monica Rejaei, Esq. X mrejaei@nstlaw .com
Employee's Attorney
Amber Sauber, Esq. X asauber@nstlaw .com
Employee's Attorney
Jared Renfroe, Esq. X jrenfroe@spicerfirm.com
Employer's Attorney
))v~ ~
P m, Clerk of Court
Co orkers' Compensation Claims
WC.CourtCierk@tn.gov
12
APPENDIX
Exhibits:
1. Medical records of:
• Sports Orthopedic & Spine
• Dr. Schmidt
• Physical Therapy of Jackson
2. Affidavit of Becky Weatherholt with exhibits
3. Recorded Statement ofMr. Miller
4. Child Support Income Withholding Order
5. Post-Accident Drug Screen Lab Report
6. Employer's First Report of Work Injury
7. Correspondence from Bruce Sebera to Mr. Miller, dated December 17, 2014
8. Affidavit of Mr. Miller ·
Technical Record: 9
1. Petition for Benefit Determination (PBD), filed June 16, 20 15
2. Dispute Certification Notice (DCN), filed July 27, 2015
3. Request for Expedited Hearing (REH), filed August 13, 2015
4. Mr. Miller's Work Status/Restriction Table prepared by counsel for Employer
Marked for Identification Only:
1. Wage Statement
2. Mr. Miller's Employee Earning History Report
9
The Court did not consider attachments to the above filings unless admitted into evidence during the Expedited
Hearing. The Court considered factual statements in the above filings or any attachments to them as allegations
unless established by the evidence.
13