1\llay 10, 2016 

1N COlJRT OF 

WORKERS' COl\.IPENSATION 

CLAThlS 

Time: 2:33 Pl\1 

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

COURT OF WORKERS' COMPENSATION CLAIMS 

AT CHATTANOOGA 

Bonnie Brown, 

Employee, 

v. 

Whole Foods Markets, Inc., 

Employer, 

And 

Ace American Ins. Co., 

Carrier. 

) Docket No.: 2016-01-0139 

) 

) State File No.: 58807-2015 

) 

) Judge Thomas Wyatt 

) 

) 

) 

ORDER DENYING EXPEDITED HEARING REQUEST FOR DISCOVERY 

(Review of the File) 

This case came before the undersigned Workers' Compensation Judge on May 6, 

20 16, upon the Request for Expedited Hearing filed by the employee, Bonnie Brown, 

pursuant to Tennessee Code Annotated section 50-6-239 (2015). Ms. Brown requested 

the Court render its decision based upon a review of the file without an evidentiary 

hearing. (T .R. 3 at 1.) 

Ms. Brown filed her Request for Expedited Hearing on April 12, 2016, 

accompanied by the affidavit of her attorney, Ronald J. Berke. (T.R. 3, 4.) Mr. Berke's 

affidavit states, "I have filed a Request for an Expedited Hearing regarding my [client's] 

Petition for Benefit Determination request seeking discovery documents in this matter." 

(T.R. 4 at 1.) Later in his affidavit, Mr. Berke avers that the Court need not conduct a 

hearing on Ms. Brown's Request for Expedited Hearing because it "pertains solely to 

discovery issues." I d. For the reasons set forth below, the Court finds Ms. Brown cannot 

obtain the relief requested through a Request for Expedited Hearing. 

History of Claim 

Ms. Brown is a fifty-seven-year-old resident of Whitfield County, Georgia. (T.R. 

1 at 1.) On February 29, 2016, she filed a Petition for Benefit Determination (PBD) 

alleging she sustained a compensable spinal injury on July 22, 2015, when she picked up 

a heavy box in the course and scope of her employment as a food preparer for the 

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employer, Whole Foods Markets, Inc. (Whole Foods). (T.R. 1-2.) In her PBD, Ms. 

Brown described the disputed issues between the parties as "Employer has not provided 

Employee a proper panel of back specialists/neurosurgeons. Employer has also failed to 

provide Employee's counsel with requested documents." (T.R. 1 at 1.) 

The mediating specialist assigned to the claim issued a Dispute Certification 

Notice on April 7, 2016, upon the failure to achieve a mediated resolution of the parties' 

disputes (T.R. 2.) On April 12, 2016, Ms. Brown filed her Request for Expedited 

Hearing accompanied by the affidavit of her attorney, Ronald J. Berke. (T.R. 3, 4.) Mr. 

Berke's affidavit states that Ms. Brown's Request for Expedited Hearing addresses only 

discovery issues. 1 Ms. Brown asks the Court to decide the undesignated discovery issues 

upon a review of the file without an evidentiary hearing. Whole Foods did not respond to 

Ms. Brown's Request for Expedited Hearing. 2 

Findings of Fact and Conclusions of Law 

The Tennessee Workers' Compensation Law does not permit Ms. Brown to 

address discovery disputes through a Request for Expedited Hearing. Tennessee Code 

Annotated section 50-6-239(d)(l) (2015) permits a workers' compensation judge to 'hear 

disputes over issues provided in the dispute certification notice concerning the provision 

of temporary disability or medical benefits on an expedited basis[.]" (Emphasis added.) 

Alternatively, Section 50-6-239(e) (2015) provides that "[a]ll discovery disputes ... shall 

be adjudicated upon the review of written motions and affidavits." 

Tennessee Code Annotated section 50-6-239(c)(l) (2015) provides that "[t]he ... 

Tennessee Rules of Civil Procedure shall govern proceedings at all hearings before a 

workers' compensation judge unless an alternate procedural ... rule has been adopted by 

the administrator." Both the Rules of Civil Procedure and the Bureau's Mediation and 

Hearing Rules provide for discovery in a workers' compensation claim by the use of 

interrogatorie 3 and depositions.4 The Rules of Civil Procedure provide for the use of 

requests for production of documents and requests for admissions, among other discovery 

devices. 

1 Mr. Berke's affidavit did not identify the records or information Ms. Brown seeks, nor does it state whether he 

previously propounded discovery on Whole Foods seeking the requested records/information. (Ex. 4.) 

2 At the time the Court issued this order, no attorney had made an appearance on behalf of Whole Foods. 

3 Tennessee Compilation Rules and Regulations 0800-02-21-.16(4)(b) (2015) provides that a party is not required to 

answer interrogatories until after the Court schedules discovery guidelines in an Initial (Scheduling) Order. 

However, the rule also gives the Court authority to order a party to answer interrogatories at an earlier stage of the 

claim. The Court urges the parties to agree to the reasonable exchange of written discovery without the Court's 

intervention, but will address any discovery motion filed by a party. 

4 The parties should review Tennessee Compilation Rules and Regulations 0800-02-2 I -.16(5) pertaining to the use 

of depositions for discovery in a workers' compensation claim. 

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Ms. Brown should engage in the discovery procedures available under the 

applicable rules to obtain the information she seeks. If Whole Foods fails to provide 

appropriate responses to discovery requests that Ms. Brown properly propounded under 

applicable procedural rules, she may file a motion asking the court to compel discovery. 

Upon the filing of a discovery motion, the Court will address the issues between the 

parties within the parameters of the applicable procedural rules. 

IT IS, THEREFORE, ORDERED: 

1. Ms. Brown's Request for Expedited Hearing is denied because she limited 

the relief sought therein to an attempt to obtain discovery. 

2. This matter is set for a Status Conference on June 7, 2016, at 9:00 a.m. 

Eastern Time. The parties shall call in to 855-747-1721 (toll-free) or 615-

741-3061 to participate. 

ENTERED this the lOth day of ~ 

Thomas Wyatt, Judge 

Court of Workers' Compensation Claims 

Status Conference: 

A Status Conference has been set with Judge Thomas Wyatt, Court of 

Workers' Compensation Claims. You must call855-747-1721 (toll-free) or 615-741-

3061 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." 

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2. Pile 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 

with the Court Clerk within ten calendar days of the filing of the Expedited 

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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Technical record: 

1. Petition for Benefit Determination, filed February 29, 2016; 

2. Dispute Certification Notice filed April 7, 2016; 

3. Request for Expedited Hearing, filed April 12, 2016; and 

4. Affidavit of Ronald J. Berke, accompanying filing of Request for Expedited Hearing 

on April12, 2016. 

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 

ofMay, 2016. 

Name Certified Via Via Service sent to: 

Mail Fax Email 

Ronald J. Berke, X Ronnie(G),berkcanys .corn; 

Attorney margo(a1berkeattvs.com 

Whole Foods Markets, X Sheila_ dargan@gbtpa.com 

Inc., c/o Sheila Dargan 

claim representative fo 

Gallagher-Bassett 

m, Clerk of Court 

Court o orkers' Compensation Claims 

WC.CourtClerk@tn.gov 

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