1\llay 10,2016
1N COlJ RT OF WORKERS' COl\.IPENSATION CLAThlS Time: 2:33 Pl\1 

### TENNESSEE BUREAU OFWORKERS' COMPENSATION COURT OFWORKERS' COMPENSATION CLAIMS AT CHATTANOOGA Bonnie Brown, Employee, 

### v. Whole Foods Markets,Inc., Employer, And Ace AmericanIns. Co., Carrier. ) DocketNo.: 2016-01-0139 ) 

### ) StateFile No.: 58807-2015 ) 

### ) JudgeThomas Wyatt ) ) ) 

### ORDERDENYING EXPEDITEDHEARINGREQUEST FORDISCOVERY (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 ofher 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." 

### Id. Forthe reasons set forth below, the Court finds Ms. Brown cannot obtainthe reliefrequestedthrough a Request for Expedited Hearing. History ofClaim Ms. Brown is a fifty-seven-year-old resident ofWhitfield 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 1employer, 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 properpanel ofback specialists/neurosurgeons. Employer has also failed to provideEmployee's counsel withrequested documents." (T.R. 1at 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 ofthe parties' disputes (T.R. 2.) On April 12, 2016, Ms. Brown filed her Request for Expedited Hearing accompanied by the affidavit ofher 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 Courtto decide the undesignated discovery issues upon a review ofthe filewithout an evidentiary hearing. Whole Foods did notrespond to Ms. Brown's Requestfor Expedited Hearing. 2 Findings ofFact and Conclusions ofLaw 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' compensationjudgeto 'hear disputes over issues provided in the dispute certification notice concerning theprovision 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 ofwritten 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' compensationjudgeunless an alternate procedural

...rule has been adopted by the administrator." Both the Rules ofCivil 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 ofdocuments 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 onWhole Foods seeking the requested records/information. (Ex. 4.)
2At the time the Court issuedthis order, no attorney had made an appearance onbehalfofWhole Foods.
3Tennessee Compilation Rules and Regulations 0800-02-21-.16(4)(b) (2015) provides that a party is notrequired 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 ofthe 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 aparty.
4 The parties should review Tennessee Compilation Rules and Regulations 0800-02-2I-.16(5) pertaining to the use ofdepositions for discovery in a workers' compensation claim. 2

### 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 withinthe parameters ofthe applicable procedural rules. IT IS, THEREFORE, ORDERED: 1. 

### Ms. Brown's Request for Expedited Hearing is denied because she limited the reliefsought thereinto an attemptto 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.
ENTEREDthisthe lOth day

### of**~** ThomasWyatt,Judge CourtofWorkers' 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 participatein theInitialHearing. 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 yourfurther 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: "ExpeditedHearing Notice ofAppeal."

32. Pile the completed form with the Court Clerk 

### within seven business days ofthe date the Workers' Compensation Judge enteredthe Expedited Hearing Order. 3. Serve a copy ofthe Expedited HearingNotice ofAppeal upon the opposingparty. 4. The appealing party is responsible for payment ofa 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 cardpayment. 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 ofIndigency, on a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit ofIndigency may be filed contemporaneously with the Notice ofAppeal ormust be filed within ten calendar days thereafter. The Appeals Board will consider the Affidavit ofIndigency 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 ofhaving 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 ofAppeal. Alternatively, the parties may file ajoint 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 ofthe Appeals Board. 6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file such position statement with the Court Clerk within five business days ofthe expiration ofthe 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 ofthe filing ofthe appellant's position statement. All position statements pertaining to an appeal of an interlocutory order should include: (1) a statement summarizing the facts ofthe case from the evidence admitted during the expedited hearing; (2) a statement summarizing the disposition ofthe case as a result ofthe expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an argument, citing appropriate statutes, case law, or other authority.

4Technical record: 1

. Petition for BenefitDetermination, filed February 29, 2016; 2. Dispute CertificationNotice filed April 7, 2016; 3. Request for ExpeditedHearing, filed April 12, 2016; and 4. Affidavit ofRonald J. Berke, accompanying filing ofRequest for Expedited Hearing onApril12, 2016.

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe Expedited Hearing Order was sent to the following recipients by the following methods ofservice on this the 1Oth day ofMay, 2016.

Name Certified Via Via Service sentto: 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 SheilaDargan claimrepresentative fo Gallagher-Bassett

m, ClerkofCourt Courto orkers' Compensation Claims WC.CourtClerk@tn.gov

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