Blakney, James v. YRC. Inc.

FILED
Nov 28, 2018
08:01 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
JAMES K. BLAKNEY, ) Docket No: 2017-08-1430
Employee, )
v. ) State File No: 68032-2016
YRC, INC., )
Employer, ) Judge Dale Tipps
And )
OLD REPUBLIC INS. CO., )
Carrier. )
COMPENSATION HEARING ORDER
This matter came before the Court on November 20, 2018, for a Compensation
Hearing. The central legal issues are: (1) whether Mr. Blakney suffered a compensable
injury arising primarily out of and in the course and scope of his employment; and (2) if
so, whether he is entitled to permanent partial disability benefits, temporary disability
benefits, and future medical treatment. For the reasons below, this Court holds that Mr.
Blakney failed to establish by a preponderance of the evidence that he sustained an injury
primarily arising out of and in the course and scope of his employment. Accordingly, the
Court holds that he is not entitled to the requested benefits.
History of Claim
Mr. Blakney testified that he injured his right knee while driving a truck for YRC
on August 27, 2016. YRC provided medical treatment, including surgery, with Dr.
Kenneth Weiss, who released Mr. Blakney to return to work. Mr. Blakney returned to
work for YRC almost two years ago, but he continues to have pain in his right knee, as
well as difficulty walking and running.
When the parties were unable to agree on a settlement of this claim, YRC filed a
Petition for Benefit Determination and requested a Scheduling Hearing. Mr. Blakney did
1
not appear for that hearing1 and did not file any medical records, witness and exhibit lists,
or prehearing statement as required by the Scheduling Order. He also failed to attend and
participate in the Court-ordered post-discovery mediation. At the Compensation Hearing,
neither party introduced medical records, deposition testimony, or C32 Medical Reports
into evidence.
Mr. Blakney contended at the hearing that he hurt himself on the job and needs
additional medical treatment.
YRC countered that, even though it properly provided benefits to Mr. Blakney, it
is not responsible for further medical treatment or permanent disability benefits. It
argued that, because Mr. Blakney submitted no medical opinions establishing causation,
he has not met his burden of establishing that his injuries arose primarily out of and in the
course and scope of his work.
Findings of Fact and Conclusions of Law
The following legal principles govern this case. Mr. Blakney has the burden of
proof on all essential elements of his claim. Scott v. Integrity Staffing Solutions, 2015 TN
Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). “[A]t a compensation hearing
where the injured employee has arrived at a trial on the merits, 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, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *18
(Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-239(c)(6) (“[T]he employee shall bear
the burden of proving each and every element of the claim by a preponderance of the
evidence.”).
Mr. Blakney’s burden includes proving that his injury arose primarily out of and in
the course and scope of the employment. To meet this burden, he must show his injury
was “caused by a specific incident, or set of incidents, arising primarily out of and in the
course and scope of employment, and is identifiable by time and place of occurrence.”
Further, he must show, “to a reasonable degree of medical certainty that [the work injury]
contributed more than fifty percent (50%) in causing the . . . disablement or need for
medical treatment, considering all causes.” Tenn. Code Ann. § 50-6-102(14).
Applying these principles to the facts of this case, the Court cannot find that Mr.
1
Mr. Blakney explained that he failed to appear for the telephonic Show Cause and Scheduling Hearings
because he was waiting for someone to call him. The Court recognizes that, even though the docketing
notices clearly stated that participants must call in to the hearing, this process can be confusing for self-
represented litigants. However, it does not appear that Mr. Blakney made any effort to contact the Court
after missing these hearings. Had he done so, he would have learned how to participate and would likely
have been able to reschedule.
2
Blakney met this burden. As noted above, he introduced no medical reports, opinions, or
testimony. Without this evidence, Mr. Blakney cannot prove “to a reasonable degree of
medical certainty” that his work “contributed more than fifty percent (50%) in causing
the . . . disablement or need for medical treatment, considering all causes.”
Therefore, this Court concludes that Mr. Blakney failed to establish by a
preponderance of the evidence that he sustained a compensable injury arising primarily
out of and in the course and scope of his employment with YRC.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Blakney’s claim against YRC, Inc. and its workers’ compensation carrier is
dismissed with prejudice against its refiling.
2. Costs of $150.00 are assessed against YRC, Inc. under Tennessee Compilation
Rules and Regulations 0800-02-21-.07 (2018), to be paid to the Court Clerk within
five days of this order becoming final.
3. YRC, Inc., shall prepare and file a statistical data form (SD2) within ten business
days of the date of this order under Tennessee Code Annotated section 50-6-244
(2018).
4. Absent an appeal, this Order shall become final in thirty days.
ENTERED this the 28th day of November, 2018.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Technical Record:
1. Petition for Benefit Determination
2. Show Cause Order
3. Scheduling Order
4. Post-Discovery Dispute Certification Notice
3
5. YRC’s Exhibit and Witness Lists
6. YRC’s Pretrial Position Statement
CERTIFICATE OF SERVICE
I 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 28th day of
November, 2018.
Name U.S. Email Service sent to:
Mail
James Blakney, X X BLAKNEY_JAMES@YAHOO.COM
Employee
Stephen K. Heard, X SKHEARD@CCLAWTN.COM
Employer’s Attorney
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
4
II
I 'I
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: "Compensation Hearing 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 ofthe 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 lndigency 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.
II I.
' I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-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, I 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 All Dependents:
- - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -
- - - - - - - - - - - - - -- -- Relationship: - - - - - -- - - -- - -
- - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -
6. I am 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. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ! ~ li
I
'
Rent/House Payment $ per month Med icai/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
I 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
____ dayof _____________________ , 20_ __
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ _ __
LB-1108 (REV 11/15) RDA 11082