FILED Apr 05, 2019 07:15 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT GRAY
EVAN BACH, ) Docket No. 2018-02-0298 Employee, ) v. ) LYNN FOGLEMAN ) State File No. 51112018 CONSTRUCTION, ) Employer, ) and ) PLAZA INSURANCE COMPANY, ) Judge Brian K. Addington Insurance Carrier. )
COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT
This claim came before the Court on April 2, 2019, upon Lynn Fogleman Construction's (Fogleman) Motion for Summary Judgment. Mr. Bach did not appear for the hearing.
Claim History
Mr. Bach fell from a ladder on January 1, 2018, and suffered multiple rib fractures, a subarachnoid hemorrhage, pleural effusion and a collapsed lung arising out of his employment with Fogleman. It provided medical treatment, and eventually all providers placed Mr. Bach at maximum medical improvement, determined he did not have any permanent impairment, and recommended no further treatment.
Mr. Bach filed a Petition for Benefit Determination requesting medical treatment for hearing loss and vertigo. This Court issued an Expedited Hearing Order denying additional medical treatment because Mr. Bach did not present any medical opinion that he needed further treatment related to his work. Later, Fogleman filed a Motion for
1 Summary Judgment. Fogleman first served the motion on Mr. Bach's attorney and later 1 Mr. Bach after the Court granted his attorney's motion to withdraw as counsel.
Findings of Fact and Conclusions of Law
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter oflaw." Tenn. R. Civ. P. 56.04 (2018). Fogleman must do one of two things to prevail on its motion for summary judgment: (1) submit affirmative evidence that negates an essential element of Mr. Bach's claim, or (2) demonstrate that Mr. Bach's evidence is insufficient to establish an essential element of his claim. Tenn. Code Ann. § 20-16-101 (2018); see also Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Fogleman is successful in meeting this burden, Mr. Bach "may not rest upon the mere allegations or denials of its pleading." !d. at 265. Rather, he must respond by producing evidence that sets forth specific facts showing there is a genuine issue for trial. !d.; Tenn. R. Civ. P. 56.06. He must do more than simply show that there is some metaphysical doubt as to the material facts. Rye, at 265.
To determine whether summary judgment is appropriate, the Court looks to whether there are genuine issues of material fact on the essential elements of Mr. Bach's claim. In doing so, the Court must review the evidence in the light most favorable to Mr. Bach as the nonmoving party and draw all reasonable inferences favoring him. Payne v. D and D Elec., 2016 TN Wrk. Comp. App. Bd. LEXIS 21, at* 12 (May 4, 2016).
Here, Fogleman asserted Mr. Bach's claim for additional benefits is without merit because he suffered no impairment and no physician has recommended further treatment. Mr. Bach did not respond to the motion and has not come forward with any medical proof demonstrating that he suffered permanent impairment or needs further treatment for any of his alleged injuries. The Court concludes no genuine issue of material fact exists and summary judgment is appropriate as a matter of law.
IT IS, THEREFORE, ORDERED as follows: 1. Mr. Bach's claim is dismissed with prejudice.
2. Fogleman shall pay court costs of $150.00 to the Court Clerk within five business days of this order becoming final.
3. Fogleman shall prepare and submit a Statistical Data Form (SD2) within ten
1 Mr. Bach did not attend the withdrawal hearing, but the Court reminded Mr. Bach of the summary judgment hearing in its order.
2 business days of this order becoming final.
4. Absent an appeal, this order shall become final thirty days after issuance.
ENTERED April 5, 2019.
BRIAN K. ADDINGTON, JUDGE Court of Workers' Compensation Claims
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Order was sent to the following recipients by the following methods of service on April 5, 20 19.
Name Certified Via Via Service sent to: Mail Fax Email Evan Bach, 5749 Natural Tunnel Pkwy. Employee X Duffield, VA 24244 Daniel Howard, Employer's Attorney X daniel.howard@sa-trial.com
3 II I 'I
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: "Compensation Hearing Notice of Appeal," and file 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 any Bureau office) seeking a waiver ofthe 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 lndigency 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 of 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 testimony 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 transmits 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.
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FILED Apr 05, 2019 07:15 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT GRAY
EVAN BACH, ) Docket No. 2018-02-0298 Employee, ) v. ) LYNN FOGLEMAN ) State File No. 51112018 CONSTRUCTION, ) Employer, ) and ) PLAZA INSURANCE COMPANY, ) Judge Brian K. Addington Insurance Carrier. )
COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT
This claim came before the Court on April 2, 2019, upon Lynn Fogleman Construction's (Fogleman) Motion for Summary Judgment. Mr. Bach did not appear for the hearing.
Claim History
Mr. Bach fell from a ladder on January 1, 2018, and suffered multiple rib fractures, a subarachnoid hemorrhage, pleural effusion and a collapsed lung arising out of his employment with Fogleman. It provided medical treatment, and eventually all providers placed Mr. Bach at maximum medical improvement, determined he did not have any permanent impairment, and recommended no further treatment.
Mr. Bach filed a Petition for Benefit Determination requesting medical treatment for hearing loss and vertigo. This Court issued an Expedited Hearing Order denying additional medical treatment because Mr. Bach did not present any medical opinion that he needed further treatment related to his work. Later, Fogleman filed a Motion for
1 Summary Judgment. Fogleman first served the motion on Mr. Bach's attorney and later 1 Mr. Bach after the Court granted his attorney's motion to withdraw as counsel.
Findings of Fact and Conclusions of Law
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter oflaw." Tenn. R. Civ. P. 56.04 (2018). Fogleman must do one of two things to prevail on its motion for summary judgment: (1) submit affirmative evidence that negates an essential element of Mr. Bach's claim, or (2) demonstrate that Mr. Bach's evidence is insufficient to establish an essential element of his claim. Tenn. Code Ann. § 20-16-101 (2018); see also Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Fogleman is successful in meeting this burden, Mr. Bach "may not rest upon the mere allegations or denials of its pleading." !d. at 265. Rather, he must respond by producing evidence that sets forth specific facts showing there is a genuine issue for trial. !d.; Tenn. R. Civ. P. 56.06. He must do more than simply show that there is some metaphysical doubt as to the material facts. Rye, at 265.
To determine whether summary judgment is appropriate, the Court looks to whether there are genuine issues of material fact on the essential elements of Mr. Bach's claim. In doing so, the Court must review the evidence in the light most favorable to Mr. Bach as the nonmoving party and draw all reasonable inferences favoring him. Payne v. D and D Elec., 2016 TN Wrk. Comp. App. Bd. LEXIS 21, at* 12 (May 4, 2016).
Here, Fogleman asserted Mr. Bach's claim for additional benefits is without merit because he suffered no impairment and no physician has recommended further treatment. Mr. Bach did not respond to the motion and has not come forward with any medical proof demonstrating that he suffered permanent impairment or needs further treatment for any of his alleged injuries. The Court concludes no genuine issue of material fact exists and summary judgment is appropriate as a matter of law.
IT IS, THEREFORE, ORDERED as follows: 1. Mr. Bach's claim is dismissed with prejudice.
2. Fogleman shall pay court costs of $150.00 to the Court Clerk within five business days of this order becoming final.
3. Fogleman shall prepare and submit a Statistical Data Form (SD2) within ten
1 Mr. Bach did not attend the withdrawal hearing, but the Court reminded Mr. Bach of the summary judgment hearing in its order.
2 business days of this order becoming final.
4. Absent an appeal, this order shall become final thirty days after issuance.
ENTERED April 5, 2019.
BRIAN K. ADDINGTON, JUDGE Court of Workers' Compensation Claims
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Order was sent to the following recipients by the following methods of service on April 5, 20 19.
Name Certified Via Via Service sent to: Mail Fax Email Evan Bach, 5749 Natural Tunnel Pkwy. Employee X Duffield, VA 24244 Daniel Howard, Employer's Attorney X daniel.howard@sa-trial.com
3 II I 'I
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: "Compensation Hearing Notice of Appeal," and file 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 any Bureau office) seeking a waiver ofthe 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 lndigency 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 of 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 testimony 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 transmits 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.§ 50-6-239(c)(7). For self-represented litigants: Help from an Ombudsman is available at 800-332-2667. II I. ' I
Tennessee Bureau of Workers' Compensation 220 French Landing Drive, 1-B Nashville, TN 37243-1002 800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be waived. The following facts support my poverty.
1. Full Name:_ _ _ _ __ _ _ _ _ __ 2. Address: - - - - - - - -- - - --
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - -- - - -- -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -
- - - - - - - - - - - - - -- -- Relationship: - - - - - -- - - -- - -
- - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -
6. I am employed by: - - - - - - - - - - -- - - -- - - - - - -- - - -- - -
My employer's address is: - - - - -- - - - -- - - - - - -- - -- - - - -
My employer's phone number is: - - - -- - - - -- - - - - - -- - - -- - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ __
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning SSI $ per month beginning Retirement $ per month beginning Disability $ per month beginning Unemployment $ per month beginning Worker's Camp.$ per month beginning Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082 9. My expenses are: ! ~ li I '
Rent/House Payment $ per month Med icai/Dental $ _ _ ___ per month
Groceries $ per month Telephone $ _ __ _ _ per month Electricity $ per month School Supplies $ _ _ _ _ _ per month Water $ per month Clothing $ _ _ _ _ _ per month Gas $ per month Child Care $ _ _ _ _ _ per month Transportation $ per month Child Support $ _ _ _ _ _ per month Car $ per month Other $ per month (describe:
10. Assets:
Automobile $ _ _ _ __ (FMV) - - - - - - - - - - Checking/Savings Acct. $ _ _ _ __ House $ _ _ __ (FMV) - - - - - - - - - - Other $ _ _ _ __ Describe:_ _ _ _ __ _ __ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
____ dayof _____________________ , 20_ __
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ _ __
LB-1108 (REV 11/15) RDA 11082