1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT MEMPHIS

ANTHONY TERRY ,

Employee, ) ) ) Docket No. 2016

- 08

- 1054

v. WHALEY’S TOWING ,

Uninsured Employer. ) ) ) ) State File No

. 73704

- 2016

Judge Allen Phillips

COMPENSATION HEARING ORDER

This case came before the Court by telephone on July 6 , 20 20 for a Compensation Hearing. For the following reasons, the Court holds Mr. Terry is entitled to medical, temporary total, and permanent partial disability benefits

.
Mr. Terry was injured wh ile working as a tow truck driver. Whaley , an uninsured employer, contended Mr. Terry was not its e mployee but instead was an independent
contractor . It also questioned whether the injury occurred

.

After an Expedited Hearing , the Court enter e d an O rder for M edical Benefits that it incorporates by reference. In that order, the Court found Mr. Terry would likely prevail at a hearing on the merits in establishing he was Whaley’s employee and that he sustained a n injury arising primarily out of his employment

. Further, t he Court ordered that Whaley pay for Mr. Terry’s medical treatment

.
Whaley paid only a small amount of Mr. Terry’s medical bills

. Further, when Mr. Terry completed medical treatment in August 2018

, the treating physician would not provide an impairment rating

. S o , Mr. Terry’s attorney arranged an independent medical evaluation with Dr. Samuel Chung who assessed an eight percent rating under the American M

edical A ssociation Guidelines to the Evaluation of P ermanent Impairment, 6 th Edition. Whaley stipulated that the rating was correct and admissible in evidence.2

T he parties also stipulated to the following:

• Mr. Terry sustained a compensable injury on July 27, 2016 ;

• Mr. Terry’s compensation rate is $378.85 per week;

• Mr. Terry is entitled to temporary total disability benefits form July 27, 2016, through August 1, 2018, the date he reached maximum medical improvement, a period of 105.5 weeks in the amount of $39,968.68;

• Mr. Terry is entitled to an original award of eight percent permanent partial disability, plus enhancing factors for not having returned to work, for being more than forty years of age, and for having less than a high school education for a total award of permanent partial disability benefits of $32,037.07 ; and

• Mr. Terry received authorized medical treatment from Methodist Hospital and Dr. Samuel Murrell and is entitled to payment of past and future medical expenses under Tennessee Code Annotated section 50

- 6

- 204 ( a) (1)(A)

.
Finally, t he Court incorporates its finding in the Expedited Hearing Order that Mr. Terry established the factors of Tennessee Code Annotated section 50

- 6

- 801(d)(1)

- (4) for a claim to the Uninsured Employers Fund

. Specifically, Mr. Terry 1) worked for an employer who f

ailed to secure payment of compensation; 2) suffered an injury primarily in the course and scope of his employment after July 1, 2015; 3) was a Tennessee resident on the date of the injury; and 4) he provided notice to the B ureau of his injury and of Whale y ’s failure to secure the payment of compensation within sixty days of his injury by filing a Petition for Benefit Determination on September 23, 2016.

IT IS, THEREFORE, ORDERED as follows:

1. Whaley shall pay Mr. Terry temporary total disability benefits of $39,968.68 for the period of July 27, 2016, through August 1

, 2018. 2. Whaley shall pay Mr. Terry permanent partial disability benefits of $32,037.07. 3. Whaley shall pay all past and future reasonable and necessary medical expenses to
treat Mr. Terry’s July 27, 2016 injury under Tennessee Code Annotated section 50

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- 204(a)(1)(A). 4. The Court taxes the $150.00 filing fee to W haley to be paid to the Court Clerk under Tennessee Compilation Rules a nd Regulations 0800

- 02

- 21

- .06 (August, 2019) within five business days of this order becoming final, and for which execution might issue if necessary. 5. W haley shall file a Statistical Data Form (SD

- 2) with the Court Clerk within five business days of the da te this order becomes final. 6. Absent an appeal, this order shall become final thirty days after entry.

ENTERED July 8 , 20 20

.3 _______________________________ Judge Allen Phillips Court of Workers’ Compensation Claims

APPENDIX

Exhibits 1. Medical Report of Dr. Samuel Chung 2. Medical Records of Methodist Healthcare 3. Bureau’s Expedited Request for Investigation Report

Technical record 1. Expedited Hearing Order with E xhibits 2. Amended Scheduling Order 3. Dispute Certification Notice 4. Dispute Certification Notice

— Additional Issues Certification 5. Joint Pre

- Hearing Statement

CERTIFICATE OF SERVICE

I certify that a copy of th is Compensation Hearing Order was sent as indicated on July 8 , 20 20

.

Name Certified Mail First

Class Mail Via Email Service Sent To:

Jonathon L May, Employee ’s Attorney X jmay @forthepeople.com

William A. Wooten

, Employer ’s Attorney X wawooten@gmail.com

_____________________________________ Penny Shrum, Clerk of Court Court of Workers’ Compensation Claims WC.CourtClerk@tn.govFor self

- represented litigants: Help from an Ombudsman is available at 800

- 332

- 2667. 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: “Notice of Appeal,” and f ile 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 an y Bureau office) seeking a waiver of the 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 Indigency 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 o f 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 testi mony 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 transmi ts 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

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- 239(c)(7).LB -1099 rev. 01/20 Page 1 of 2 RDA 11082 NOTICE OF APPEAL Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries- at -work/ wc.courtclerk@tn.gov | 1- 800

- 332 -2667

Docket No. :

________________________ State File No.:

______________________ Date of Injury: _____________________

___________________________________________________________________________ Employee

v.

___________________________________________________________________________ Employer

Notice is given that ____________________________________________________________________

[List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Co mpensation Appeals Board (check one or more applicable boxes and include the date filestamped on the first page of the order(s) being appealed):



### □ Expedited Hearing Order fil ed on

_______________ 

### □ Motion Order filed on ___________________



### □ Compensation Order filed on

__________________ 

### □ Other Order filed on

_____________________ issued by Judge _____________________________________________________________________

____ .

Statement of the Issues on Appeal Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

______________________________________________________________________________________ __

______________________________________________________________________________________ __

______________________________________________________________________________________ __

______________________________________________________________________________________ __
Parties Appellant(s) (Requesting Party): _________________________________________ ☐ Employer ☐ Employee Address: _______________________________________________________

_ Ph one: ___________________ Email: __________________________________________________________ Attorney’s Na me:

_____________________________________________ _ BPR#: _______________________ Attorney’s E mail: _____________________________________________

_ Phone: _______________________ Attorney’s Ad dress:

_________________________________________________________________________ * Attach an additional sheet for each additional Appellant *LB -1099 rev. 01/20 Page 2 of 2 RDA 11082

Employee Name: _______________________________________ Docket No.: __________________

__ _ Date of Inj.:

____

___________

Appellee(s) (Opposing Party): ___________________________________________ ☐ Employer ☐ Employee App ellee’s Address:

_____________________________________________ _ Phone:

_ ___________________ Email: _________________________________________________________ Attorney’s Na me:

_____________________________________________ B PR#: ________________________ Attorney’s E mail: _____________________________________________ Phone:

_______________________ Attorney’s Ad dress:

_________________________________________________________________________ * Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described in Tennessee Compilation Rules & Regulations, Chapter 0800- 02

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, to all parties and/or their attorneys in this case on this the __________ day of ___________________________________, 20 ____.

__ ____________________________________________ [Signature of appellant or attorney for appellant]