Scott, Raymond v. Snyder Services Plumbing Co.

COURT OF WORKERS' COMPENSATION CLAIMS
AT MEMPHIS
Raymond Scott, Docket No.: 2015-08-0118
Employee,
v. State File No.: 27889-2015
Snyder Services Plumbing Co.,
Employer, Date of Injury: January 28, 2015
And
Builders Mutual Insurance Co., Judge: Jim Umsted
Insurance Carrier.
COMPENSATION HEARING ORDER
On January 6, 2016, the Court held a Compensation Hearing on this claim filed by
Raymond Scott, the employee, against Snyder Services Plumbing Co. (Snyder), the
employer. The issues are: (1) compensability of the claimed work injury; (2) entitlement
to medical benefits; (3) entitlement to temporary disability benefits; and (4) entitlement to
permanent partial disability benefits. 1 The Court finds that Mr. Scott established by a
preponderance of the evidence that he sustained a compensable injury and is entitled to
future medical benefits, past temporary disability benefits, and permanent partial
disability benefits.
History of Claim
Mr. Scott is a fifty-year-old resident of Shelby County, Tennessee. He worked
for Snyder as a plumber since January 15, 2015. Mr. Scott claims he injured his right
arm at work on January 28, 2015. Snyder disputes that Mr. Scott sustained a
compensable injury at work.
Mr. Scott testified he injured his right arm at work, when he pulled on an overhead
pipe and felt several pops in his arm. He did not immediately report the injury to Snyder
because he hoped his injury was minor and feared losing his job.
His arm injury did not improve, and Mr. Scott sought medical treatment on his
1
A complete listing of the technical record, stipulations, and exhibits admitted at the Compensation Hearing is
attached to this Order as an appendix.
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own. He chose to treat at Specialty Orthopedics (Specialty) because his girlfriend
worked at that clinic. He first treated at Specialty with Dr. Richard Ennis on January 30,
2015. Dr. Ennis noted the injury occurred two days earlier when Mr. Scott "was pulling
hard with his elbow" and "felt a pop." (Ex. 1 at 1.) Mr. Scott did not tell Dr. Ennis the
injury occurred at work, and the intake report completed on that date indicates the injury
did not occur at work. Dr. Ennis placed Mr. Scott's arm in a sling and splint and referred
him to his partner, Dr. Robert Bobo. (Ex. 1 at 1.) On February 3, 2015, Mr. Scott
returned to see Dr. Bobo. (Ex. 1 at 2.) Dr. Bobo diagnosed Mr. Scott with a torn biceps
tendon and recommended surgery. (Ex. 1 at 2.)
Mr. Scott testified he reported his work injury to his boss, Larry Snyder, shortly
after his first visit with Dr. Bobo. According to Mr. Scott, Mr. Snyder recommended
handling the injury claim under health insurance rather than reporting a workers'
compensation claim. Mr. Scott testified Mr. Snyder told him to talk to his wife, Lisa
Snyder, about getting his health insurance backdated, since it was not scheduled to take
effect until May 2015. Mr. Scott continued working for Snyder while he awaited
coverage approval under Snyder's health insurance plan.
On March 18, 2015, Dr. Bobo performed surgery on Mr. Scott's right arm. (Ex. 1
at 2.) Dr. Bobo testified at his deposition that he kept Mr. Scott off work until releasing
him to light-duty work on March 31, 2015. (Ex. 2 at 19.) Mr. Scott testified that Snyder
initially accommodated his restrictions of no right-handed work by giving him a helper.
However, after approximately one and one-half weeks, Snyder sent him on a job without
a helper, and he could not perform the job using one hand. According to Mr. Scott, Mr.
Snyder stated he could not pay Mr. Scott to do nothing, and sent him home.
On April 9, 2015, Dr. Bobo entered a note in his records, indicating Mr. Scott's
right-arm injury occurred while he was working. (Ex. 1 at 3.) This notation was the first
mention of a work-related injury. However, Dr. Bobo testified at a deposition that Mr.
Scott advised during his first visit that he injured his right arm at work and the medical
record was simply clarified on April 9, 2015. (Ex. 2 at 25.)
Snyder ultimately notified its workers' compensation insurance carrier of this
claim. On April 13, 2015, Mr. Scott received a panel of physicians and selected Dr.
Bobo.
On April 16, 2015, after Mr. Scott told Dr. Bobo that Snyder was not
accommodating his restrictions, Dr. Bobo took him completely off work to protect his
right arm. (Ex. 2 at 21-22.) Dr. Bobo received correspondence from Snyder's workers'
compensation carrier, asking if certain duties would satisfy Mr. Scott's work restrictions.
Dr. Bobo testified that the mentioned duties would be "hard to do just one-handed." (Ex.
2 at 44-45.) Mr. Scott stated that he remained off work until Dr. Bobo placed him at
maximum medical improvement (MMI).
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Snyder's carrier denied Mr. Scott's workers' compensation claim, and Mr. Scott
filed a Petition for Benefit Determination on July 1, 2015, seeking medical and temporary
disability benefits. (TR 1.) The parties did not resolve the disputed issues through
mediation, and the Mediating Specialist filed a Dispute Certification Notice on July 21,
2015. (TR 2.) The Court held an Expedited Hearing on August 14, 2015, and on
October 1, 2015, it issued an order denying Mr. Scott's request for benefits. The
Expedited Hearing Order set the matter for an initial hearing on October 23, 2015, and
this Court ent red an Agreed Initial Hearing Order on Octob r 30, 2015. ( R 3.) As set
forth in the Agreed Initial Hearing Order, 2 the Court conducted a Cmnpensation Hearing
on January 6, 2016.
At the Compensation Hearing, Mr. Scott called a former coworker, Brandon
Hardin, to corroborate his description of the injury. Mr. Hardin testified he did not know
Mr. Scott personally but worked with him at Snyder for about three months in early 2015.
He testified he was Mr. Scott's helper and was assisting Mr. Scott lay pipe at Trinity
Baptist Church in Southaven, Mississippi on January 28, 2015, when Mr. Scott injured
his arm. According to Mr. Hardin, Mr. Scott was on a ladder trying to fit a pipe through
a small hole in the concrete slab above him and had to pull the pipe to get it in place. Mr.
Hardin stated he was on the floor above Mr. Scott and heard a pop and a noise that
sounded like Mr. Scott was in pain. Mr. Scott instructed Mr. Hardin to come downsta'irs,
and when he did, he saw Mr. Scott holding his arm. Mr. Hardin further testified Mr.
Scott complained that his arm was hurting.
Snyder did not call any witnesses to testify at the Compensation Hearing.
However, both Mr. Scott and Snyder relied on Dr. Bobo's deposition testimony of June
25, 2015. During his deposition, Dr. Bobo testified Mr. Scott's employment caused his
torn distal biceps tendon. (Ex. 2 at 18, 41.) Dr. Bobo also testified it was Mr. Scott's
idea to treat under his health insurance rather than workers' compensation. Dr. Bobo
stated he agreed to treat Mr. Scott under health insurance, at least in part, because Mr.
Scott's significant other worked for Specialty. (Ex. 2 at 37-39.) Snyder argued Dr. Bobo
showed favoritism toward Mr. Scott and colluded with Mr. Scott to defraud Mr. Scott's
health insurance carrier. As such, it contended Dr. Bobo was not a "reputable physician"
as required by Tennessee Code Annotated section 50-6-204 (2015).
Mr. Scott further relied on Dr. Bobo's Form C-32 Standard Form Medical Report,
dated November 16, 2015. This report indicated Mr. Scott reached MMI on August 25,
2015, and retained a four percent permanent impairment rating to the body as a whole
2
The Agreed Initial Hearing Order also required the parties to participate in post-discovery mediation, which they
did on December 15, 2015. The mediation did not result in a settlement, and the Mediating Specialist prepared a
"Benefit Review Conference Report" listing the remaining contested issues as compensability, temporary disability
benefits, medical benefits, and extent of permanent vocational disability. At the Compensation Hearing, the parties
agreed to consider the "Benefit Review Conference Report" as a "Dispute Certification Notice."
3
based on the American Medical Association Guide to Evaluation of Permanent
Impairment, 61h Edition (AMA Guides). (Ex. 3 at 4.) The parties did not present any
further evidence with regard to permanent impairment. However, they stipulated Mr.
Scott returned to work for a different employer after reaching MMI and stipulated his
average weekly wage was $1,009.07, resulting in a compensation rate of$672.74.
As evident from the above, the Court must determine whether Mr. Scott has
proven he injured hi~ right arm at work, entitling him to workers' compensation benefits.
Findings of Fact and Conclusions of Law
General Legal Principles
This Court must interpret the Workers' Compensation Law fairly, impartially, and
without favor for either the employee or employer. Tenn. Code Ann. § 50-6-116
(20 15). The employee in a workers' compensation claim must prove all essential
elements of his claim. Tindall v. Waring Park Ass 'n, 725 S.W.2d 935, 937 (Tenn.
1987); 3 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). At a
compensation hearing, the employee "must establish by a preponderance of the evidence
that he or she is, in fact, entitled to the requested benefits." Willis v. All Staff, No. 2014-
05-0005,2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Tenn. Workers' Comp. App.
Bd. Nov. 9, 20 15).
Compensability
The first issue this Court must address is whether Mr. Scott sustained a
compensable injury. Mr. Scott persuasively testified he injured his right arm at work on
January 28, 2015, when he pulled on an overhead pipe. He also persuasively testified he
reported his work injury to his boss shortly after his first visit with Dr. Bobo on February
3, 2015, which satisfies the thirty-day notice requirement provided in Tennessee Code
Annotated section 50-6-201(a)(1) (2015).
Mr. Hardin corroborated Mr. Scott's testimony, testifying he was assisting Mr.
Scott set a pipe and heard a pop and a noise that sounded like Mr. Scott was in pain.
According to Mr. Hardin, Mr. Scott asked him to come downstairs, and when he did, he
saw Mr. Scott holding his arm. Mr. Hardin further testified Mr. Scott complained of
3
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 I, 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, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
4
arm pam. Snyder presented no evidence to refute the testimony of Mr. Scott or Mr.
Hardin.
Furthermore, Dr. Bobo, relying on the history provided by Mr. Scott and his
findings during Mr. Scott's March 18, 2015 surgery, testified Mr. Scott's employment
caused the tom biceps tendon due to "the straining on an object with his right arm and
hand causing the biceps tendon to give way." (Ex. 2 at 18, 41.) The Court does not
agree with Snyder's contention that Dr. Bobo is disreputable and notes Snyder failed to
introduce any evidence to rebut Dr. Bobo's causation opinion.
To be compensable under the Workers' Compensation Law, an injury must
arise primarily out of and occur in the course and scope of the employment, be caused
by an incident or specific set of incidents, and be identifiable by time and place of
occurrence. Tenn. Code Ann. § 50-6-102(14) (2015). Based on the evidence
presented at the Compensation Hearing, the only suggested cause for Mr. Scott's right
arm injury was the January 28, 2015 work incident described by Mr. Scott and Mr.
Hardin.
Moreover, the opinion of the treating physician, selected by the employee from
the employer's designated panel of physicians, is presumed correct on the issue of
causation. Tenn. Code Ann. § 50-6-102(14)(E) (2015). This presumption, however, is
rebuttable by a preponderance of the evidence. !d. Mr. Scott selected Dr. Bobo from
Snyder's panel of physicians on April 13, 2015. As the authorized treating physician,
Dr. Bobo's causation opinion is presumed correct. He causally related Mr. Scott's tom
biceps tendon to Mr. Scott's work incident, and Snyder has not presented any evidence
to rebut Dr. Bobo's causation opinion.
The Court finds that Mr. Scott established by a preponderance of the evidence that
he sustained a compensable injury primarily arising out of and in the course and scope of
his employment with Snyder.
Medical Benefits
Having so found, the Court turns to the issue of medical benefits. Pursuant to
Tennessee Code Annotated section 50-6-204(a)(l)(A) (2015), "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 as defined in this chapter."
Accordingly, Mr. Scott is entitled to reasonably necessary future medical treatment as
recommended by his authorized treating physician, Dr. Bobo, and as required by
Tennessee Code Annotated section 50-6-204 (2015).
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Mr. Scott also seeks payment of past medical expenses. However, he provided
no proof of the amount of these expenses or that they were reasonable and necessary.
Mr. Scott did not admit any medical bills into evidence and did not ask Dr. Bobo to
testify about the reasonableness and necessity of his prior treatment and charges.
Therefore, the Court is unable to order any past medical benefits.
Temporary Disability Benefits
Mr. Scott further asks this court to order temporary disability benefits. To
establish a case for temporary total disability benefits, an employee must show that: ( 1)
he was totally disabled and unable to work as a result of a compensable injury; (2) a
causal connection exists between the injury and the employee's inability to work; and (3)
the duration of the period of the employee's disability. Gray v. Cullom Mach., Tool &
Die, Inc., 152 S.W.3d 439, 443 (Tenn. 2004).
Temporary partial disability arises when the temporary disability is not total.
Tennessee Code Annotated section 50-6-207(2) (2015) provides that "[i]n all cases of
temporary partial disability, the compensation shall be sixty-six and two-thirds percent of
the difference between the average weekly wage of the worker at the time of the injury
and the wage the worker is able to earn in the worker's partially disableci .condition."
When an injured worker is willing to return to work within his restrictions, but the
employer is unwilling or unable to return the injured worker to work, the injured worker
may be entitled to recover temporary partial disability benefits equal to the amount of
temporary total disability benefits. See Williams v. Saturn Corp., No. M2004-01215-
WC-R3-CV, 2005 Tenn. LEXIS 1032, at *7-8 (Tenn. Workers' Comp. Panel Nov. 15,
2005).
Dr. Bobo kept Mr. Scott completely off work after his surgery on March 18, 2015.
(Ex. 2 at 19.) Mr. Scott remained off work until March 31, 2015, when Dr. Bobo
released him to light-duty work with restrictions limiting use of his right hand. (Ex. 2 at
19.) Dr. Bobo took Mr. Scott totally off work again on Apri116, 2015, after Mr. Scott
advised that Snyder required him to work outside his restrictions. (Ex. 2 at 21-22.) Mr.
Scott testified he remained off work until August 25, 2015, when Dr. Bobo placed him at
MMI.
No one from Snyder testified about the alleged light-duty work Snyder offered Mr.
Scott. Moreover, in response to correspondence from Snyder's workers' compensation
carrier, asking if certain duties would satisfy Mr. Scott's work restrictions, Dr. Bobo
testified the mentioned duties would be "hard to do just one-handed." (Ex. 2 at 44-45.)
Dr. Bobo further testified he took Mr. Scott off work to protect his arm. (Ex. 2 at 21-22.)
Considering all of the evidence presented, the Court finds Mr. Scott was totally disabled
from working, as a result of his work injury, from the date of his surgery on March 18,
2015, to March 31, 2015, when Dr. Bobo released him to light-duty work. The Court
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further finds that Mr. Scott was totally disabled from working, as a result of his work
injury, from April 16, 2015, to August 25, 2015, when he reached MMI.
With regard to the period between April 1, 2015, and April 15, 2015, Dr. Bobo
placed Mr. Scott on restricted duty of no right-handed work. As such, he was not totally
disabled and unable to work during this period. According to Mr. Scott, Snyder initially
accommodated his restrictions. However, after about one and one-half weeks, Snyder
sent him on a job without a helper, and he could not perform the job using one hand. Mr.
Snyder ultimately told Mr. Scott he could not pay him to do nothing, and sent him home.
Mr. Scott could not give specific dates regarding these events, so it is not clear when a
period of temporary partial disability would begin. Consequently, Mr. Scott has not
established entitlement to benefits during this period.
Extent of Permanent Disability
Finally, the Court will address the issue of permanent disability benefits. For
post-July 1, 2014 injuries, permanent partial disability is paid at sixty-six and two-
thirds percent of the injured employee's average weekly wage for the period of
compensation as determined by multiplying the employee's impairment rating by 450
weeks. Tenn. Code Ann. § 506-207(3)(A) (2015). Mr. Scott returned to work with a
different employer during his initial compensation period, and did not request or show
entitlement to any enhancement factors.
Dr. Bobo assessed a four percent permanent partial impairment to the body as a
whole pursuant to the AMA Guides. (Ex. 3 at 4.) Subject to rebuttal by a preponderance
of the evidence, Dr. Bobo's impairment rating is presumed accurate. Tenn. Code Ann. §
50-6-201(k)(7) (2015). Since Dr. Bobo's impairment rating was the only rating presented
by the parties, it follows that Mr. Scott's permanent partial disability is 450 weeks
multiplied by four percent, a period of eighteen weeks, at his compensation rate of
$672.74.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Scott shall receive lifetime future reasonable, necessary, and related
medical benefits pursuant to statute.
2. The amount of temporary disability benefit is $672.74 per week based on Mr.
Scott's average weekly wage of$1,009.07.
3. Payment of past due temporary disability benefits in the amount of $13,839.22
shall be made for the periods between March 18, 2015, and March 31, 2015,
and between April16, 2015, and August 25, 2015.
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4. Mr. Scott shall recover from Snyder permanent partial disability benefits in
the amount of $12,109.32, representing a four percent permanent partial
disability to the body, or eighteen weeks of compensation. These benefits,
having accrued, are payable in a lump sum.
5. Costs of this cause of $150.00 are assessed against Snyder pursuant to Tenn.
Comp. R. and Reg. 0800-02-21-.07 (2015), to be paid within five days of
this order becoming final.
ENTERED this the 26th day of January, 2016.
a~
HON. JIM UMSTED
Workers' Compensation Judge
Right to Appeal:
Tennessee Law allows any party who disagrees with this Compensation 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: "Compensation Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within thirty calendar days of the
date the Workers' Compensation Judge entered the Compensation Hearing Order.
3. Serve a copy of the Compensation 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
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 lndigency in accordance
with this section shall result in dismissal of the appeal.
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5. The party filing the notice of appeal, 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 fifteen calendar days of the filing
of the Expedited Hearing Notice of Appeal. Alternatively, the party filing the
appeal may file a joint statement of the evidence within fifteen calendar days of
the filing of the Compensation 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. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (2015).
6. After the Workers' Compensation Judge approves the record and the Court Clerk
transmits it to the Workers' Compensation Appeals Board, the appeal will be
docketed and assigned to an Appeals Board Judge for review. At that time, a
docketing notice shall be sent to the parties. Thereafter, the party who filed the
notice of appeal shall have fifteen calendar days after the issuance of the docketing
notice to submit a brief to the Appeals Board for consideration. Any opposing
party shall have fifteen calendar days after the filing of the appellant's brief to file
a brief in response. No reply briefs shall be filed. Briefs shall comply with the
Practice and Procedure Guidelines of the Workers' Compensation Appeals Board.
See Tenn. Comp. R. & Regs. 0800-02-22-.03(6) (2015).
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APPENDIX
Technical record:
• Petition for Benefit Determination, filed July 1, 2015;
• Dispute Certification Notice, filed July 21, 2015;
• Agreed Initial Hearing Order, entered October 30, 2015;
• Raymond Scott's Proposed Witness and Exhibit List, filed December 7, 2015;
• Snyder Services Plumbing Co.'s Proposed Witness and Exhibit List, filed
December 8, 2015;
• Raymond Scott's Pre-Compensation Hearing Statement, filed December 18, 2015;
• Snyder Services Plumbing Co.'s Pre-Compensation Hearing Statement, filed
December 18, 2015;
• Snyder Services Plumbing Co.'s Motion for Summary Judgment, filed December
18, 2015;
• Snyder Services Plumbing Co.'s Statement of Undisputed Facts Filed in Support
of its Motion for Summary Judgment, filed December 18, 2015;
• Raymond Scott's Response to Snyder Services Plumbing Co.'s Statement of
Undisputed Material Facts, filed January 5, 2016;
• Raymond Scott's Response in Opposition to Snyder Services Plumbing Co.'s
Motion for Summary Judgment, filed January 5, 2016; and
• Benefit Review Conference Report, dated December 15, 2015.
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.
Stipulated Findings of Facts of tbe Parties:
• Mr. Scott is fifty years old, and presently lives in Shelby County, Tennessee.
• Mr. Scott was working as a plumber for Snyder Services on January 28, 2015.
• Mr. Scott selected Dr. Robert Bobo from a panel of physicians on April13, 2015.
• Dr. Bobo placed Mr. Scott at maximum medical improvement for his alleged
work-related right arm injury on August 25, 2015.
• Dr. Bobo has opined that Mr. Scott retains a four percent impairment to the body
as a whole.
• Mr. Scott's average weekly wage while working for Snyder Services was
$1,009.07, which resulted in a compensation rate of$672.74.
• Mr. Scott is currently working for another employer.
Stipulated Conclusions of Law of the Parties:
• This claim is governed by the Workers' Compensation Law for the State of
Tennessee.
10
• Mr. Scott filed his Petition for Benefit Determination within the applicable statute
of limitations.
Exhibits:
• EXHIBIT 1: Raymond Scott's medical records from Specialty Orthopedics (32
pages);
• EXHIBIT 2: Deposition Transcript of Dr. Robert Bobo;
• EXHIBIT 3: Form C-32 Standard Form Medical Report prepared by Dr. Robert
Bobo;
• EXHIBIT 4: Form C-41 Wage Statement; and
• EXHIBIT 5: Benefit Review Conference Report.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Compensation Hearing Order
was sent to the following recipients by the following methods of service on this the 26th
day of January, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Drew Davis, Esq., X drew@donatilaw. com
Employee's Attorney billv@.donatilaw .com
Devin R. Williams, Esq., X drw@Qsw-law.com
Employer's Attorney
Penny Shrum, Court Clerk
Court of Workers' Compensation Claims
WC.CourtClerk@tn.gov
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