Foutch, James v. Burkeen Trucking Company

IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT JACKSON
JAMES FOUTCH, ) Docket No.: 2015-07-0374
Employee, )
v. ) State File Number: 88348-2015
BURKEEN TRUCKING COMPANY )
Employer. ) Judge Amber E. Luttrell
EXPEDITED HEARING ORDER GRANTING CERTAIN MEDICAL BENEFITS
AND DENYING TEMORARY DISABILITY BENEFITS
(FILE REVIEW DETERMINATION)
THIS CAUSE came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the employee, James Foutch, pursuant to
Tennessee Code Annotated section 50-6-239 (2015). Mr. Foutch requested the Court
decide his interlocutory claim for medical and temporary disability benefits based on a
review of the file without an evidentiary hearing. The employer, Burkeen Trucking, did
not request an in-person evidentiary hearing or otherwise respond to the Request for
Expedited Hearing.
The Court issued a Docketing Notice on February 2, 2016, allowing the parties
seven business days to raise any objections to the admissibility of any document filed in
this case. (Ex. 7.) The parties filed no objections. The Court further advised Burkeen
Trucking of the Bureau's Mediation and Procedure Rule 0800-02-21-.05 requiring
corporations to be represented by counsel in all court proceedings. The Court ordered
Burkeen Trucking to retain counsel within seven business days of issuance of the
Docketing Notice to proceed in this action. No attorney filed an appearance on behalf of
Burkeen Trucking.
This Court finds it does not need any additional information to determine whether
Mr. Foutch is likely to prevail at a hearing on the merits of the claim. Accordingly,
pursuant to Rule 0800-02-21-.14(l)(c) (2015) of the Tennessee Compilation Rules and
Regulations, the Court decided the issues in this case upon a review of the written
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materials and without the benefit of an evidentiary hearing. 1
The issue in this case is whether Mr. Foutch is likely to prevail at a hearing on the
merits that his right ankle and shoulder injuries arose primarily out of and in the course
and scope of his employment. If so, Mr. Foutch requested medical and temporary
disability benefits. For the reasons set forth below, the Court finds Mr. Foutch came
forward with sufficient evidence from which this Court concludes he is likely to prevail
at a hearing on the merits for his right ankle injury. The Court finds Mr. Foutch did not
present sufficient information from which this Court can conclude he is likely to prevail
at a hearing on the merits regarding his alleged right shoulder injury or temporary
disability benefits.
History of Claim
Mr. Foutch is a fifty-eight-year-old resident of Gibson County, Tennessee. (T.R.
1.) He worked as a truck driver for Burkeen Trucking since May 2015? (Ex. 1.)
According to his affidavit, on September 24, 2015, while unloading lumber at Henry
County Hardwood, Mr. Foutch fell off the truck and injured his right ankle and right
shoulder. !d.
An ambulance transported Mr. Foutch to the emergency room at Henry County
Medical Center. (Ex. 3.) Mr. Foutch reported his injury to "Ms. Mary," an office
employee at Burkeen Trucking. He also reported his injury to Billy Burkeen, owner of
Burkeen Trucking. Mr. Foutch testified by affidavit that Mr. Burkeen advised he did not
carry workers' compensation insurance because he could not afford it. Mr. Foutch stated
Mr. Burkeen assured him he would pay his medical bills. (Ex. 1.)
Mr. Foutch saw Dr. Charles Rainbolt in the emergency room. (Ex. 3.) The medical
records indicated the following history, "He was working on flatbed fell 8ft. landed on
right foot has limited range of motion and lot of pain." Dr. Rainbolt diagnosed a closed
fracture of the right ankle. He discharged Mr. Foutch with crutches and pain medication,
and referred him to an orthopedist, Dr. Blake Chandler.
On September 28, 2015, Mr. Foutch saw Dr. Chandler at West Tennessee Bone
and Joint. (Ex. 4.) Dr. Chandler noted a history of Mr. Foutch falling from a loaded trailer
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By making a file review determination, the Court makes no decision as to the admissibility of the information
submitted in the case file absent an objection from a party. The Court notes in this case that the parties did not raise
any objection to admissibility of any information in the file; therefore, the Court reviewed and considered the entire
case file in making its determination.
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The Court notes Mr. Foutch stated in his Affidavit that Burkeen Trucking hired him as a company driver, not an
independent contractor. Burkeen Trucking paid Mr. Foutch $0.35 a mile, paid tolls, and reimbursed Mr. Foutch for
scales. Burkeen Trucking owned the truck driven by Mr. Foutch. The Court notes Mr. Foutch's status as an
employee of Burkeen Trucking or independent contractor was not listed as a disputed issue in the Dispute
Certification Notice. Thus, the Court did not consider any such defense in this file review determination.
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and seeking emergency care for his ankle on September 24. Upon exam, Dr. Chandler
diagnosed a lateral malleolus fracture. Dr. Chandler performed an open reduction internal
fixation (ORIF) on Mr. Foutch's ankle on September 29, 2015.
Mr. Foutch continued seeing Dr. Chandler or FNP Clay Nolen for follow-up care
through November 12, 2015. On this visit, Practitioner Nolen instructed Mr. Foutch to
return in three weeks for x-rays and to discontinue his use of crutches. Mr. Foutch
provided no additional medical records. (Ex. 4.)
Mr. Foutch filed medical bills associated with his emergency room visit at Henry
County Medical on the date of injury. He also filed medical bills from West Tennessee
Bone and Joint that correspond with his surgery on September 29, 2015, and a follow-up
visit on October 14, 2015. (Ex. 6.)
Mr. Foutch filed a Petition for Benefit Determination seeking medical benefits.
The parties did not resolve the disputed issues through mediation, and the mediating
specialist filed a Dispute Certification Notice adding temporary disability benefits as a
disputed issue. Mr. Foutch filed a Request for Expedited Hearing seeking a ruling based
upon a review of the file without an evidentiary hearing. Burkeen Trucking filed no
response to the Request for Expedited Hearing.
Findings of Fact and Conclusions of Law
Because this case is in a posture of an Expedited Hearing, Mr. Foutch need not
prove every element of his claim by a preponderance of the evidence in order to obtain
relief. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
Instead, he must come forward with sufficient evidence from which this court might
determine he is likely to prevail at a hearing on the merits. !d.; Tenn. Code Ann. § 50-6-
239(d)(l) (2015). In analyzing whether he has met his burden, the Court will not
remedially or liberally construe the law in his favor, but instead shall construe the law
fairly, impartially, and in accordance with basic principles of statutory construction
favoring neither Mr. Foutch nor Burkeen Trucking. See Tenn. Code Ann. § 50-6-116
(2015)..
To be compensable, Mr. Foutch must show his alleged injury arose primarily out
of and in the course and scope of his employment. Tenn. Code Ann. § 50-6-102(14)
(20 15). He must also show his injury was caused by an incident, or specific set of
incidents, identifiable by time and place of occurrence. Tenn. Code Ann. § 50-6-
102(14)(A) (2015). Further, he must show, "to a reasonable degree of medical certainty
that [his alleged work injury] contributed more than fifty percent (50%) in causing the ...
disablement or need for medical treatment, considering all causes." Tenn. Code Ann. §
50-6-1 02(14 )(C) (20 15). "Shown to a reasonable degree of medical certainty" means that,
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in the opinion of the treating physician, it is more likely than not considering all causes as
opposed to speculation or possibility. Tenn. Code Ann.§ 50-6-102(14)(D) (2015).
Mindful of the foregoing, the Court will first address the lay proof that consisted
solely of Mr. Foutch's affidavit testimony. In his affidavit, Mr. Foutch stated he worked
for Burkeen Trucking as a truck driver. He was in the course and scope of his
employment for Burkeen on September 24, 2015, when he unloaded a load of lumber at
Henry County Hardwood and fell off the truck, injuring his right ankle and right
shoulder. Based upon the uncontroverted testimony of Mr. Foutch and the medical
records, the Court finds he is likely to prevail at a hearing on the merits with regard to
establishing a specific work-related event, identifiable by time and place of occurrence,
wherein he injured his right ankle.
Turning to medical causation, our Appeals Board recently stated, "[w ]ith respect
to the element of medical causation, it was traditionally the employee's burden to offer
expert medical proof of causation ' [e]xcept in the most obvious, simple and routine
cases."' Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp.
App. Bd. LEXIS 24 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015), citing Cloyd v.
Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008). The Court finds medical
causation for Mr. Foutch's right ankle fracture is obvious in this case. The medical
records from Henry County Medical Center emergency room were consistent with Mr.
Foutch's testimony regarding his fall off a truck onto his right ankle. An ambulance
transported him to the emergency room and the physician treated him for an acute ankle
fracture. The Court finds the proof sufficient to establish Mr. Foutch is likely to prevail at
a hearing on the merits regarding medical causation for his right ankle fracture.
The evidence is insufficient, however, at this interlocutory stage, for the Court to
conclude Mr. Foutch is likely to prevail at a hearing on the merits regarding his alleged
right shoulder injury. The only mention of a right shoulder injury in the file is contained
in Mr. Foutch's affidavit. The medical records do not reference a right shoulder injury. It
appears the treatment Mr. Foutch received at the emergency room and with Dr. Chandler
was solely for the right ankle fracture. Unlike the ankle fracture, the Court finds Mr.
Foutch's right shoulder injury is not so obvious as to remove the need for expert proof of
causation. In Scott, the Appeals Board further noted that:
[F]or injuries before July 1, 2014, an injured employee could satisfy her
burden of proof of medical causation by offering expert medical testimony
that a work accident 'could be' the cause of the employee's medical
condition, when there was corroborating lay testimony from which it could
reasonably be inferred that the incident was in fact the cause of the injury.
See, e.g., Hill v. Eagle Bend Mfg., 942 S.W.2d 483 (Tenn. 1997). The
analysis in such cases was predicated on expert medical testimony
combined with corroborative lay testimony. Thus, even under pre-reform
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law, lay testimony alone was insufficient in most cases to establish
adequate evidence of medical causation.
Scott, at * 11 (emphasis added).
Accordingly, Mr. Foutch cannot rely solely upon his own testimony because it is
he who must establish causation and his "lay testimony ... without corroborative expert
testimony, [does] not constitute adequate evidence of medical causation." Scott, at * 12.
He must "secure expert opinions or other evidence necessary to address any applicable
burden of proof." Pool v. Jarmon D&Q Transport, No. 2015-06-0510, 2016 TN Wrk.
Comp. App. Bd. LEXIS 1, at *10 (Tenn. Workers' Comp. App. Bd. Jan. 4, 2016).
Turning to the issue of temporary disability, the Appeals Board held that:
As the name implies, an injured worker is entitled to temporary partial
disability benefits, a category of vocational disability distinct from
temporary total disability, when the temporary disability is not total. See
Tenn. Code Ann. § 50-6-207(1)-(2) (2014). Specifically, while temporary
total disability refers to the employee's condition while completely unable
to work because of the injury until the worker recovers as far as the nature
of the injury permits, "[t]emporary partial disability refers to the time, if
any, during which the injured employee is able to resume some gainful
employment but has not reached maximum recovery."
Mace v. Express Services, Inc., No. 2015-06-0059, 2015 Tn. Wrk. Comp. App. Bd.
LEXIS 49 (Tenn. Workers' Comp. App. Bd. Dec. 11, 2015), citing Williams v. Saturn
Corp., No. M2004-01215-WC-R3-CV, 2005 Tenn. LEXIS 1032, at *6 (Tenn. Workers'
Comp. Panel Nov. 15, 2005).
In the instant case, the medical records do not indicate whether the physicians took
Mr. Foutch off work or assigned any work restrictions. Absent such information, the
Court finds there is insufficient evidence of temporary disability at this time for the Court
to conclude Mr. Foutch is likely to prevail at a hearing on the merits. Thus, Mr. Foutch's
request for temporary disability benefits is denied.
Finally, the Court finds the medical bills submitted by Mr. Foutch correspond with
his dates of service for treatment of his right ankle injury and represent necessary
treatment for his work injury. Based upon the uncontroverted testimony of Mr. Foutch,
the Court finds Burkeen Trucking authorized his medical treatment at Henry County
Medical Center as well as his treatment from Dr. Chandler and West Tennessee Bone and
Joint. The Court further finds the treatment provided by Mr. Foutch's authorized treating
physician is presumed reasonable and necessary. Tenn. Code Ann. § 50-6-204(a)(3)(H)
(2015). Accordingly, the Court finds Mr. Foutch is likely to prevail at a hearing on the
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merits regarding payment of his medical bills.
IT IS, THEREFORE, ORDERED as follows:
1. Medical care for Mr. Foutch's right ankle InJury shall be paid and Burkeen
Trucking shall provide Mr. Foutch with medical treatment for this injury as
required by Tennessee Code Annotated section 50-6-204 (2014). Dr. Blake
Chandler shall be Mr. Foutch's authorized treating physician. Medical bills shall
be furnished to Burkeen Trucking by Mr. Foutch or the medical providers.
2. Burkeen Trucking shall promptly pay all reasonable and necessary past medical
expenses for Mr. Foutch's right ankle injury.
3. Mr. Foutch's request for medical benefits for a right shoulder injury is denied at
this time.
4. Mr. Foutch's request for the temporary disability benefits is denied at this time.
5. This matter is set for an Initial (Scheduling) Hearing on April 28, 2016, at 10:00
a.m. Central Standard Time.
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)
(2015). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Bureau by email to
WCCompliance.Program@tn .gov no later than the seventh business day after
entry of this Order. Failure to submit the necessary confirmation within the period
of compliance may result in a penalty assessment for non-compliance.
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.
ENTERED this the lOth day~ ~
4~
Ju ge Amber E. Luttrell
~
Court of Workers' Compensation Claims
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initial (Scheduling) Hearing:
An Initial (Scheduling) Hearing has been set with Judge Luttrell, Court of
Workers' Compensation Claims. You must call 901-543-2668 or toll-free at 855-543-
5046 to participate in the Initial Hearing.
Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.
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
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of
Indigency in accordance with this section shall result in dismissal of the
appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal,
may request, from the Court Clerk, the audio recording of the hearing for the
purpose of having a transcript prepared by a licensed court reporter and filing it
"':ith the Court Clerk within ten calendar days of the filing of the Expedited
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Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifYing the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within five business days of the filing of the appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order should include: (1) a statement summarizing the facts of the
case from the evidence admitted during the expedited hearing; (2) a statement
summarizing the disposition of the case as a result of the expedited hearing; (3) a
statement of the issue( s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.
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APPENDIX
The Court reviewed the following documents and designates these documents as the
Technical Record:
1. Petition for Benefit Determination, filed November 12, 2015, and January 8, 2016
2. Dispute Certification Notice, filed January 8, 2016
3. Request for Expedited Hearing, filed January 11, 2016
The Court reviewed the following documents in reaching its decision and designates the
documents as Exhibits solely for ease of reference by the Court:
1. Affidavit of James Foutch
2. Medical records and bills of Dr. Blake Chandler and West Tennessee Bone and
Joint
3. Medical records of Henry County Medical Center
4. Mr. Foutch's wage information
5. Request for Investigation of Burkeen Trucking and Investigation Report
6. Medical Bills
7. Docketing Notice
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CERTIFICATE OF SERVICE
I hereby certifY that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 1Oth day
ofMarch, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Charles Holliday, Esq., X chuckh@garretylaw .com
Employee's Counsel
Billy Burkeen, Burkeen X 34 Gibson Wells Brazil Road
Trucking, self- Humboldt, Tennessee 38343
represented
Employer
Penny Shrum, Clerk of Court
Court of Workers' Compensation Claims
WC.CourtCierk@tn.gov
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