Clark, Birtie v. Cook Out Kingsport, Inc.

FILED
Aug 13, 2019
11:13 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
BIRTIE CLARK, ) Docket Number: 2019-02-0176
Employee, )
Vv. )
COOK OUT KINGSPORT, INC., ) State File Number: 17061-2019
Employer, )
And )
AMERICAN COMPENSATION, ) Judge Brian K. Addington
Insurance Carrier. )
)
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
Cook Out filed a Request for Expedited Hearing and asked the Court to deny
Birtie Clark’s claim for medical and temporary benefits. The Court reviewed the file and
found it needed no additional information to determine whether Ms. Clark is likely to
prevail at a hearing on the merits.' Because the evidence supports Cook Out’s assertions,
the Court denies Ms. Clark relief at this time.
History of Claim
While Cook Out acknowledged that Ms. Clark sustained a compensable March 30,
2018 work injury, it denied through affidavits that Ms. Clark provided notice of a
September 14, 2018 injury. It was not until after a February 2019 car wreck that Ms.
Clark filed a Petition for Benefit Determination alleging a September 14, 2018 injury.
Cook Out argued that Ms. Clark never provided notice of a September 14, 2018
injury, and it has not paid any benefits on the claim. Also, she has not provided any
affidavits or medical records to support her claim for benefits.
' The Court issued a docketing notice allowing the parties until August 12, 2019, to file objections or
submit position statements. Ms. Clark did not respond.
1
Findings of Fact and Conclusions of Law
To prevail at an expedited hearing, Ms. Clark must present sufficient evidence to
show she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2018).
Here, the evidence shows Ms. Clark did not provide any affidavits or medical
records to support a claim for benefits with a September 14, 2018 injury date. Cook Out
provided affidavits that it received neither notice of a September 14, 2018 injury nor any
medical records to support her claim. The Court holds Ms. Clark has not come forward
with sufficient evidence to prove she is likely to succeed in proving she suffered a
September 14, 2018 work injury that caused disablement and/or the need for medical
treatment.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Clark’s request for temporary and medical benefits is denied at this time.
2. This case is set for a Scheduling Hearing on October 3, 2019, at 10:30 a.m.
Eastern Time. You must call 855-543-5044 to participate in the Hearing. Failure
to call might result in a determination of the issues without your participation.
ENTERED August 13, 2019.
/s/Brian K. Addington
Judge Brian K. Addington
Court of Workers’ Compensation Claims
Appendix
Exhibits/Technical Record
Rockforde King’s Affidavit
Jana Johnson’s Affidavit
Rick McCormick’s Affidavit
Request for Expedited Hearing
Dispute Certification Notice with Attachments
Petition for Benefit Determination
Awe ye
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on August 13, 2019.
Name Certified | Email | Service sent to:
Mail
Birtie Clark, x 114 Walker Street, Apt. 6
Employee Kingsport, TN 37665
Rockforde King, Xx rking@emlaw.com
Attorney for Employer
YY my WM i
Penny I Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
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 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 the 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. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business 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 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. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals
Board. [List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
L] Temporary disability benefits
L] Medical benefits for current injury
LC Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
Address:
Party’s Phone: Email:
Attorney's Name: BPR#:
Attorney’s Address: Phone:
Attorney's City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: L]JEmployer LJEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I,
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of , 20
, certify that | have forwarded a true and exact copy of this
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of Ail Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam employed by:
My employer’s address is:
My employer’s phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
ssl $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe: )
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ __ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082