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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE 

JULIE DEMOTTE, )

Employee, ) Docket No. 2017-06-1778

v. )

UPS,

 Employer,

)

) State File No. 89793-2016

)

and

LIBERTY INSURANCE CO.,

 Carrier.

)

)

)

Judge Joshua Davis Baker

COMPENSATION HEARING ORDER AWARDING FUTURE MEDICAL 

BENEFITS AND DENYING TEMPORARY AND PERMANENT DISABILITY 

BENEFITS

The parties appeared for a compensation hearing on March 14, 2018, to determine 

Ms. Demotte’s entitlement to permanent disability, temporary disability, and future 

medical benefits for her workplace injury. The Court holds UPS must provide Ms. 

Demotte with lifetime medical benefits for her workplace injury but denies her claim for 

temporary and permanent disability benefits. 

History of Claim

With the exception of Ms. Demotte’s impairment rating, the parties stipulated to 

almost all the material facts in this case. On November 11, 2016, Ms. Demotte fell and 

broke her hip and leg while retrieving packages from a clogged package-transport 

conveyor at a UPS-distribution facility.1 UPS accepted the claim, and Ms. Demotte 

chose Dr. Jason Evans as the authorized treating physician. She also, however, received 

treatment from Dr. Philip Kregor, Dr. Evans’ partner. 

 

1 Only Ms. Demotte testified at trial, and the Court summarized this history from the stipulations and her 

testimony. 
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On March 9, 2017, Ms. Demotte saw Dr. Evans and requested he release her to 

return to work. However, for reasons unclear, Dr. Kregor, instead of Dr. Evans, signed 

her release. 

Before her release, UPS paid Ms. Demotte temporary disability benefits at two 

different rates. For the first twelve weeks, UPS paid Ms. Demotte at a rate of $186.67 

per week. Because of an overpayment, UPS lowered the rate to $134.18 per week on 

February 8 and continued payments at that rate until her release.2

Ms. Demotte worked for a few days and then left UPS on March 21. She testified 

she left because she could not physically perform the job. On April 10, Dr. Evans placed 

Ms. Demotte at maximum medical improvement (MMI). He issued a form C-30A Final 

Medical Report assigning Ms. Demotte a three-percent whole-person impairment rating

and releasing her to return to work at full duty. 

UPS stipulated to Ms. Demotte’s entitlement to future medical benefits but 

objected to admission of the form C-30A to establish Ms. Demotte’s permanent 

impairment rating. UPS argued that the medical report was inadmissible to prove 

impairment because Ms. Demotte failed to give proper notice of her intent to use it,

which deprived UPS of the opportunity to depose Dr. Evans. Ms. Demotte opposed the 

objection, arguing that UPS presented no medical proof rebutting Dr. Evans’ opinion. 

She further argued that the Court should admit the form C-30A as a medical record, and 

that requiring her to submit a form C-32 contravenes a central goal of the reform by 

fomenting unnecessary litigation. The Court admitted the form but sustained UPS’ 

objection concerning its use to prove Ms. Demotte’s permanent impairment rating. 

After the trial, the Court reviewed the scheduling order and noticed it contained no 

deadlines regarding expert witnesses. The Court then reviewed the recording from the 

hearing to determine why the order omitted these deadlines. At the scheduling hearing, 

the following exchange occurred between the Court and defense counsel, David Hooper:

Court: It almost seems to me like ADR might be a good thing for you all?

Hooper: Well, I don’t have any, um, unrealistic expectation about that. 

Based on things up to this point, I doubt that that’s helpful in this case. I’ll 

go through it if the Court wishes it because I realize that it’s, at least on, 

under the rules, it’s mandatory but I don’t know that there’s a reasonable 

expectation this will work. Honestly, the issues here, however they’ve 

been, and I think they’ve been skewed a bit by Zach [Wiley], but I think the 

issue here is what she’s entitled to receive in terms of permanency. 

 

2 The parties stipulated to a compensation rate of $141.96 per week. 
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Court: So there is a dispute over that? There’s a three-percent and a one—

is there an agreement on the rating?

Hooper: There is.

Court: Okay, okay, so then the issue is whether there’s additional benefits 

that she’s entitled to? 

Hooper: Right, well there’s a, well it actually is skewed a bit because of 

the, of um, of the overpayment of temporary disability benefits. 

Court: Okay, okay. I’ve gotcha, I’ve gotcha. 

Hooper: But there is no dispute about the three-percent rating. 

Later in the hearing, the Court questioned the parties about discovery needed before the 

compensation hearing:3

Court: Do we need to take any expert witness depositions?

Mr. Goodman: No your honor.

Court: Mr. Hooper?

Mr. Hooper: I don’t think so. 

The scheduling order identified permanent disability benefits and temporary disability 

benefits as disputed issues for trial. Additionally, the pretrial statement contained no 

stipulation as to the impairment rating. 

Legal Principles and Analysis

At a compensation hearing, Ms. Demotte must establish by a preponderance of the 

evidence that she is entitled to workers’ compensation 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) (2017). She has the burden of proof on all essential elements of her

claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at 

*6 (Aug. 18, 2015). 

 

3 Attorney David Goodman appeared at the scheduling hearing in place of counsel of record, Zachary 

Wiley. 
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At the outset of the hearing, the parties stipulated to most of the essential elements 

of the claim. They agreed Ms. Demotte suffered a compensable injury, and UPS paid for 

all treatment to date. They also agreed Ms. Demotte is entitled to continuing medical 

benefits with Dr. Evans. In the end, the only disputed issues concerned Ms. Demotte’s

entitlement to permanent disability benefits and additional temporary disability benefits. 

The dispute concerning permanent disability benefits centered on the admissibility 

of form C-30A as proof of Ms. Demotte’s impairment rating. UPS objected to 

admissibility of the rating, and the Court sustained the objection. The Court provides the 

following analysis to address the admissibility of medical reports at a compensation 

hearing. To that end, the analysis focuses on three legal pronouncements: statutory law, 

regulatory law, and evidentiary rules. 

Admissibility of Medical Reports Under Statute

Tennessee Code Annotated section 50-6-235(c)(1) allows for introduction of 

direct testimony “through a written medical report on a form established by the 

administrator.” The administrator adopted form C-32 for this purpose. See Tenn. Comp. 

R. & Regs. 0800-02-01-.16(2). When completed by a physician, form C-32 satisfies the 

requirements for a signed medical report contained in section 50-6-235(c)(1). A party 

may introduce a form C-32, in lieu of deposition testimony, at any stage of litigation 

upon giving the opposing party at least twenty days’ notice of its intent to rely on it. The 

opposing party may object to the report’s introduction but must depose the physician 

within a “reasonable period of time,” or the objection is waived. Tenn. Code Ann. § 50-

6-235(c)(2).

Ms. Demotte attempted to introduce form C-30A instead of form C-32. While 

both are technically medical reports, the difference in the amount of information 

contained in form C-32 as opposed to form C-30A is overwhelming. Form C-32 is 

several pages in length and contains more detailed information concerning an employee’s 

physical condition. It also includes a causation opinion and physician certification. Form 

C-30A, on the other hand, provides limited information and does not require certification. 

The Court finds that it is for this reason that the administrator provided form C-32 for 

admissibility in lieu of deposition testimony. Additionally, filing a C-32 signals an 

intention to rely on the report in lieu of deposition testimony, which triggers the opposing 

party’s right to demand a deposition. Because Ms. Demotte failed to file form C-32, 

UPS’ right to demand a deposition never arose. 

While UPS had the right to object to the admissibility of form C-30A to prove Ms. 

Demotte’s impairment rating, the Court found the objection puzzling. UPS voiced no 

objection to the three-percent impairment rating at the scheduling hearing. In fact, when 

the Court asked whether there was an agreement to the impairment rating, Mr. Hooper 

responded, “There is.” Additionally, when the Court asked the parties whether they 
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needed to take expert witness depositions, Mr. Goodman said no, and Mr. Hooper said, “I 

don’t think so.” 

At the compensation hearing, the parties stipulated to all material aspects of the 

case including compensability of the injury. With these stipulations and Mr. Hooper’s 

previous statement of agreement to the impairment rating, the Court fails to see what 

would be accomplished if UPS chose to take Dr. Evans’ deposition. Ms. Demotte, 

however, had the burden to prove her permanent impairment and needed to provide either 

expert witness testimony via a deposition transcript or through form C-32. Ms. Demotte 

attempted to rely on form C-30A instead, which is not admissible to prove permanent 

medical impairment under Tennessee Code Annotated section 50-6-235(c)(1). In short, 

Ms. Demotte had the duty to present her case through admissible evidence and failed to 

do so

Medical Reports Under Regulatory Law

Ms. Demotte argued that despite the statutory law concerning admissibility of 

medical reports, the Court’s rules and regulations allow for admissibility of the 

completed form C-30A as a medical record. She cited Tennessee Compilation Rules and 

Regulations 0800-02-21-.16(6)(B) in support of this argument. The rule provides in 

pertinent part: “All medical records signed by a physician, including via electronic 

signature, or accompanied by a certification that the records are true and accurate which 

has been signed by the medical provider shall be admissible.” The Court disagrees with 

Ms. Demotte’s position. 

The Court sees a distinction between a medical record and a medical report for 

two reasons. First, the Bureau’s rules and regulations identify forms C-30 and C-32 as 

medical reports. Second, physicians complete medical reports to support litigation in a 

workers’ compensation claim, while physicians dictate or prepare medical records to

track the course of treatment and determine appropriate next steps for care. In this 

Court’s view, the distinction between a report prepared for litigation and medical records 

used to document and support treatment make the records more reliable. The Court, 

therefore, holds that a medical record as provided in Rule 0800-02-21-.16(6)(B) does not 

include form C-30A. 

Medical Reports Under the Rules of Evidence

UPS objected to admission of the impairment rating in form C-30A because it 

constitutes hearsay. The Tennessee Rules of Evidence define hearsay as “a statement, 

other than one made by the declarant while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). “Hearsay is 

not admissible except as provided for these rules or otherwise by law.” Id. at 802.
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The Court agrees that the impairment rating Dr. Evans provided on form C-30A 

constitutes hearsay. Dr. Evans completed the form outside of Court, so it qualifies as an 

out-of-court statement. Additionally, Ms. Demotte attempted to introduce the form to 

prove the three-percent rating contained within it. Accordingly, the form C-30A 

constitutes hearsay. Further, it does not fall within any of the exceptions to hearsay. See 

id. at 803. Thus the impairment rating in form C-30A is not admissible under the Rules 

of Evidence. 

Ms. Demotte Failed to Prove Entitlement to 

Additional Temporary Disability Payments

Ms. Demotte also seeks additional temporary total disability benefits. The Court 

denies her request. 

UPS paid Ms. Demotte temporary disability benefits from the date of her injury 

until March 9, 2017. On March 9, Ms. Demotte saw Dr. Evans and asked him to release

her to return to full-duty work. Dr. Evans agreed. For an unexplained reason, Dr. Kregor 

issued the release. Ms. Demotte then returned to work, and UPS terminated her 

temporary disability benefits. 

Ms. Demotte worked for a few days and then left employment with UPS on March 

21. She testified she could not physically perform her job. On April 10, Dr. Evans

released her to return to work at full duty and noted that Ms. Demotte’s work disability

began on the date of injury and ended on April 10. 

For the first twelve weeks she missed work, UPS overpaid temporary disability 

benefits to Ms. Demotte by $44.71 per week, or a total of $536.52 (($186.67 - $141.96) x 

12 weeks). UPS then lowered the rate to $134.18 per week on February 8 and continued 

payments at that rate until her release to return to work—four weeks and two days later. 

This allowed UPS to recoup $33.34 (($141.96 - $134.18) x 4 weeks) + (($7.78/7) x 2 

days)) of the overpayment, and left the overpayment balance at $503.18. 

After Ms. Demotte left work on March 21, two weeks and six days passed before 

Dr. Evans placed her at maximum medical improvement and set her last date of disability 

at April 10. For that period, Ms. Demotte would have been due $405.60. Because this 

amount is less than the outstanding overpayment balance, Ms. Demotte cannot recover 

any additional temporary disability benefits. 

IT IS, THERFORE, ORDERED AS FOLLOWS:

1. UPS shall continue to provide Ms. Demotte with ongoing future medical benefits, 

with Dr. Evans acting as the authorized treating physician.
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2. Ms. Demotte’s claim for permanent disability benefits and additional temporary 

disability benefits is denied. 

3. Absent an appeal to the Appeals Board, this order shall become final in thirty 

days.

4. The Court taxes the $150.00 filing fee to UPS under Tennessee Compilation Rules 

and Regulations 0800-02-21-.07, for which execution may issue as necessary. 

UPS shall pay this fee within five business days of this ordering becoming final.

5. UPS shall file form SD-1 within ten business days of this order becoming final.

 

ENTERED ON APRIL 11, 2018.

_____________________________________

Joshua Davis Baker

Workers’ Compensation Judge
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APPENDIX

Exhibits:

1. Medical Records

2. Choice of Physician Form

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. UPS Compensation Hearing Brief

4. UPS Prehearing Statement

5. UPS Motion in Limine

6. UPS Exhibit List

7. Demotte Prehearing Statement

8. Demotte Witness and Exhibit List

9. Scheduling Order
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CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was sent to the following 

recipients by the following methods of service on April__2018.

Name Certified 

Mail

First 

Class 

Mail

Via 

Email

Service sent to:

Zachary Wiley

David Goodman

X zwiley@forthepeople.com

dgoodman@forthepeople.com

David Hooper X dhooper@hooperzinn.com

______________________________________

 PENNY SHRUM, COURT CLERK

 wc.courtclerk@tn.gov

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