# FILED .July

### 26,2017

TN COURTOF WOR.K:ERS'COl\IPI S

.. '\.TION CLAIMS Time 1:17PM TENNESSEEBUREAU OFWORKERS' COMPENSATION INTHE COURT OFWORKERS' COMPENSATION CLAIMS AT CHATTANOOGA DAMIONEICE, Employee, 

### v. DIONDAVE AND ANITA DAVE (NETIAREEL-DAVE), D/B/A D&N TRANSPORTATION, INC. AND/OR DNTTRANSPORT, Uninsured Employers. ) ) DocketNo.: 2016-01-0366 ) ) StateFile No.: 57572-2016 ) ) JudgeThomasWyatt ) )

COMPENSATION HEARING ORDERGRANTING SUMMARYJUDGMENT

This matter came before the undersigned Workers' Compensation Judge on July 17, 2017, upon Mr. Ice's Motion for Summary Judgment. Mr. Ice seeks summary judgment establishing: (1) he was an employee ofDion Dave, Anita Dave (Netia ReelDave) and D&N Transportation (hereinafter, collectively referred to as "the D&N parties") on the date of injury; (2) the D&N parties employed more than five regular employees from 2009 until 2012 and never administratively filed to remove their status as a covered employer; (3) on April 28, 2016, he suffered second-degree burns to his right hand and left thumb that arose primarily out of and in the course and scope of employment by the D&N parties; (4) due to his compensable injury, he was totally disabled from working from April 29, 2016, to May 31, 2016, thus entitling him to temporary total disability benefits in the amount of$2,121.40; (5) his compensable injury required emergent treatment at Doctor's Hospital in Augusta, Georgia for which he was billed $39,353.22; and (6) he is eligible for payments from the Uninsured Employer's Fund. For the reasons set forth below, the Court finds Mr. Ice is entitled to summary judgmenton all the matters discussed above.

1History ofthe Claim Mr. Ice filed a Petition for Benefit Determination on July 19, 2016, seeking benefits based on burn injuries he sustained April 28, 2016. He later filed a Request for Expedited Hearing, to which the D&N parties responded, seeking a determination on the record that he was entitled to medical and temporary disability benefits. On March 22, 2017, the Court entered an Expedited Hearing Order holding Mr. Ice would likely prevail at a hearing on the merits in establishing the compensability of his claim and his entitlementto medical and temporary disabilitybenefits. Mr. Ice filed his Motion for Summary Judgment on June 5, 2017. The D&N parties did not file a timely response. On July 17, at the originally-scheduled oral argument on Mr. Ice's motion for summaryjudgment, counsel for the D&Nparties made an oral motion for an extension oftime to respond to the summary judgment motion. Counsel for Mr. Ice objected and the Courttook the matter under advisement and delayed the oral argument. On July 18, the Court denied the D&N parties' motion for an extension oftime. Thus, the Court considers Mr. Ice's motion to be unopposed. See Rule 4.01(8) ofthe Practices and Procedures ofthe Court ofWorkers' Compensation Claims (Jan. 20 17). Neither party requested an oral argument ofthe unopposed Motion for Summary Judgment. Accordingly, the Court decides the motion onthe record. Decision LegalAuthority Rule 56 of the Tennessee Rules of Civil Procedure (2016) governs the determination of summary judgments in the Court ofWorkers' Compensation Claims. See Syph v. Choice FoodGroup, Inc., 2016 TN Wrk. Comp. App. Bd. 18, at *20-22 (Apr. 21, 2016). Rule 56.04provides that summaryjudgmentis appropriate "ifthepleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, ifany, show that there is no genuine issue as to any material fact and that the moving party is entitled to ajudgment as a matter oflaw." See also Tenn. R. Civ. P. 56.06 (2016). The Appeals Board wrote in Syph, at *21: '[W]hen a motion for summaryjudgmentis made [and]

... supported as provided in [Tennessee Rule 56],' to survive summary judgment, the nonmoving party 'may not rest upon the mere allegations or denials of [its] pleading,' but must respond, and by affidavits or one ofthe other means provided in Tennessee Rule 56, 'set forth specific facts' at the summary judgment stage 'showing that there is a genuine issue for trial."'

2Likewise, the Workers' Compensation Appeals Board has described a nonmovant's obligation to respond to a Statement ofUndisputed Facts as a requisite one. See Mitchell v. RanstadNorth America, 2017 TN Wrk. Comp. App. Bd. LEXIS 2, at *8 (Jan. 13, 2017). In discussion ofa court's options when a party does not file a response to a Statement of Undisputed Facts, the Court of Appeals held in Holland v. City of Memphis, 125 S.W.3d425, 428-29 (Tenn. Ct. App. 2003): Although the trial court may, at its discretion, waive the requirements ofthe rule where appropriate, the court may also refuse to consider the factual contentions of a non-complying party even where such facts are ascertainable by the record. Thus, the material facts set forth in the statement ofthe moving party may be deemed admitted in the absence of a statement controverting them by the opposing party. Accordingly, failure to file a response in opposition to a motion for summaryjudgment generally will prove fatal in the trial court and upon appeal. (Internal citations omitted.) See also Cardiac Anesthesia Servs., PLLC v. Jones, 385 S.W.3d 530, 539 (Tenn. App. 2012), holding "when a non-moving party fails to respond to the moving party's statement ofundisputed facts, the courtmay considerthe facts admitted." In view ofthe above authority, the Court deems that the D&N parties' failure to respond to Mr. Ice's Statement of Undisputed Facts indicates their admission of the following facts set forth inthe statementandthe documentary exhibits to which it refers: 1. Mr. Ice was an employee of the D&N parties on April 28, 2016, when he suffered burns to his right hand and left thumb while performing duties near Graniteville, South Carolina, in the course and scope ofhis employmentby the D&Nparties; 2. The D&N parties regularly employed more than five drivers from 2009-2012 and never administratively filed to remove their status as a covered employer so as to establish their exemption from providing benefits under the Workers' CompensationLaw; 3. Mr. Ice's burn injuries required emergent treatment at the burn unit at Doctors Hospital in Augusta, Georgia. Mr. Ice incurred bills totaling $39,353.22 for the treatmentnecessitatedby his burn injuries;

34. Mr. Ice's burn injuries totally disabled him from April 28, 2016, until May 31, 2016, aperiod offour weeks and five days; 5. Mr. Ice's average weekly wage was $675.00, entitling him to a compensation rate of$450.00perweek; 6. The D&N parties were uninsured for workers' compensation risks on the date ofMr. Ice's injury and did not pay any workers' compensation benefits to him for his burn injuries; 7. Mr. Ice resided in Tennessee at the time his buminjuries occurred; 8. The Amended Expedited Request for Investigation Report of the Bureau's Compliance Specialist in the Court's file indicates that the specialistreceived a Request for Investigation ofthe D & N parties arising from Mr. Ice's injury twelve days after the injury. Accordingly, Mr. Ice gave the Bureau notice of his injury within sixty days oftheoccurrence ofthe injury; and 9. Mr. Ice retained Attorney Mike Wagnerto representhim in this claimbased on a contingency fee oftwenty percent ofMr. Ice'srecovery, plus expenses.

The Court finds that the undisputed facts set forth above entitle Mr. Ice to workers' compensation benefits as a matter of law. Mr. Ice's bum injuries arose primarily out ofand in the course and scope ofemployment as defined by the Tennessee Workers' CompensationLaw. Tenn. Code Ann.§ 50-6-102(14) (2016). Tennessee Code Annotated section 50-6-204 (2016) requires an employer to provide free ofcharge to the employee all reasonable and necessary treatment ofa work injury. The treatment Mr. Ice received in Georgia for his injuries was reasonable and necessary to treat his compensable bum injuries. As such, the D&N parties are liable to pay the charges billed to Mr. Ice for the subjecttreatment. Tennessee Code Annotated section 50-6-207(1) (2016) provides for an employee's entitlement to temporary total disability benefits when a work injury totally disables the employee from working. The statute provides a weekly disability benefitto an employee temporarily totally disabled due to a work injury based on two-thirds ofthe employee's average weekly wage. Mr. Ice established a compensation rate of$450 per week and a period ofdisability offour weeks and five days. Thus, as a matter oflaw, he is entitledto an award of$2,121.40 in temporary total disability benefits.

4Under Tennessee Code Annotated section 50-6-80l(d) (2016), the Bureau has discretion to pay limited temporary disability and medical benefits to employees who have established medical causation oftheir injury and who meetthe following criteria: 1. The employee worked for an employer who failed to carry workers' compensation insurance; 2. The employee suffered an injury primarily arising in the course and scope ofemployment afterJuly l, 2015; 3

. The employee was aTennessee resident on the date ofinjury; 4. The employee provided notice to the Bureau of the injury and of the employer's failure to provide workers' compensation msurance no more than sixty days afterthe injury occurred; and 5. The employee secured a judgment for workers' compensation benefits against the employerfor the injury in question. The facts Mr. Ice established on summaryjudgment provide the factual basis for his recovery from the Bureau's Uninsured Employers Fund under the above-listed criteria. The Court finds that, as a matter oflaw, Mr. Ice established that he is eligible for payments from the Uninsured Employers Fund. The Court considers its award ofsummaryjudgment to constitute a full and final disposition of all benefits sought by Mr. Ice in this claim. See Harrogate Corp. v. Systems Sales Corp., 915 S.W.2d 812, 816 (Tenn. App. 1995), holding "[s]ummary judgmentresolves the [issues] treated on their merits and is a finaljudgment for-purposes of res judicata." Counsel for Mr. Ice indicated his client intended that his summary judgment motion would address all benefits to which the Workers' Compensation Law might entitle him, including a claim for permanent disability benefits. Based on this assertion, the Court considers that Mr. Ice waived his claim for permanent disability benefits when he submitted no evidence on summaryjudgment seeking to establish his entitlement to permanent disability benefits. IT IS, THEREFORE, ORDERED that Mr. Ice's Motion for SummaryJudgment is granted, entitling him to the following benefits: 1. Payment ofthe charges Mr. Ice incurred for treatment ofhis burn injuries at Doctors Hospital, Augusta, Georgia; 2. Future reasonable and necessary treatment of Mr. Ice's burn injuries by physicians he sees throughtheburnunit atDoctors Hospital, August, Georgia;
53. Temporary disability benefits from April29, 2016, until May 31, 2016, in the amount of$2,121.40; 4. Mr. Ice's claim for permanentdisability benefits is denied becausehe waived that claim by failing to submit evidence in support ofpermanent disability benefits in his summaryjudgmentmotion; 5. Eligibility to request payment oftemporary disability benefits from April 29, 2016, until May 31, 2016, in the amount of$2,121.40, and medical benefits for past and future treatment ofhis burn injuries through the burn unit at Doctors Hospital, Augusta, Georgia, from the Uninsured Employer's Fund pursuant to Tennessee Code Annotated section 50-6-801 et seq. The clerk shall forward a copy ofthis ordertotheAdministrator.

ENTERED this the 26th day ofJuly, 2017.

Court ofWorkers' Compensation Claims

CERTIFICATE OF SERVICE Ihereby certify that atrue and correct copy ofthis OrderGranting Summary Judgmentwas sentto the following recipients by the following methods ofservice on this the 26th day ofJuly, 2017. Name Certified Fax Email Service sentto: Mail Mike Wagner, X maw@wagnerin

### iurv.com Attorney Art Grisham, X art@grishamattorney.com Attorney

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# HRUM, COURTCLERK wc.coultder k@tn.gov

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