FILED Aug 13, 2019
11:13 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY BIRTIE CLARK, ) Docket Number: 2019-02-0176 Employee, ) Vv. ) COOK OUT KINGSPORT, INC., ) State File Number: 17061-2019 Employer, ) And ) AMERICAN COMPENSATION, ) Judge Brian K. Addington Insurance Carrier. ) )
EXPEDITED HEARING ORDER (DECISION ON THE RECORD)
Cook Out filed a Request for Expedited Hearing and asked the Court to deny Birtie Clark’s claim for medical and temporary benefits. The Court reviewed the file and found it needed no additional information to determine whether Ms. Clark is likely to prevail at a hearing on the merits.' Because the evidence supports Cook Out’s assertions, the Court denies Ms. Clark relief at this time.
History of Claim
While Cook Out acknowledged that Ms. Clark sustained a compensable March 30, 2018 work injury, it denied through affidavits that Ms. Clark provided notice of a September 14, 2018 injury. It was not until after a February 2019 car wreck that Ms. Clark filed a Petition for Benefit Determination alleging a September 14, 2018 injury.
Cook Out argued that Ms. Clark never provided notice of a September 14, 2018 injury, and it has not paid any benefits on the claim. Also, she has not provided any affidavits or medical records to support her claim for benefits.
' The Court issued a docketing notice allowing the parties until August 12, 2019, to file objections or submit position statements. Ms. Clark did not respond.
1 Findings of Fact and Conclusions of Law
To prevail at an expedited hearing, Ms. Clark must present sufficient evidence to show she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6- 239(d)(1) (2018).
Here, the evidence shows Ms. Clark did not provide any affidavits or medical records to support a claim for benefits with a September 14, 2018 injury date. Cook Out provided affidavits that it received neither notice of a September 14, 2018 injury nor any medical records to support her claim. The Court holds Ms. Clark has not come forward with sufficient evidence to prove she is likely to succeed in proving she suffered a September 14, 2018 work injury that caused disablement and/or the need for medical treatment.
IT IS, THEREFORE, ORDERED as follows: 1. Ms. Clark’s request for temporary and medical benefits is denied at this time.
2. This case is set for a Scheduling Hearing on October 3, 2019, at 10:30 a.m. Eastern Time. You must call 855-543-5044 to participate in the Hearing. Failure to call might result in a determination of the issues without your participation.
ENTERED August 13, 2019.
/s/Brian K. Addington Judge Brian K. Addington Court of Workers’ Compensation Claims Appendix Exhibits/Technical Record
Rockforde King’s Affidavit
Jana Johnson’s Affidavit
Rick McCormick’s Affidavit
Request for Expedited Hearing
Dispute Certification Notice with Attachments Petition for Benefit Determination
Awe ye
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on August 13, 2019.
Name Certified | Email | Service sent to: Mail Birtie Clark, x 114 Walker Street, Apt. 6 Employee Kingsport, TN 37665 Rockforde King, Xx rking@emlaw.com Attorney for Employer
YY my WM i
Penny I Clerk of Court Court of Workers’ Compensation Claims WC.CourtClerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’ Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the form with the Clerk of the Court of Workers’ Compensation Claims within seven business days of the date the expedited hearing order was filed. When filing the Notice of Appeal, you must serve a copy upon all parties.
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 of the 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 the 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. If a transcript of the proceedings is to be filed, a licensed court reporter must prepare the transcript and file it with the court clerk within ten business days of the filing the Notice of Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both parties within ten business 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 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. If you wish to file a position statement, you must file it with the court clerk within ten business days after the deadline to file a transcript or statement of the evidence. The party opposing the appeal may file a response with the court clerk within ten business days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667. LB-1099
EXPEDITED HEARING NOTICE OF APPEAL Tennessee Division of Workers’ Compensation www. tn.gov/labor-wid/weomp.shtml wce.courtclerk@tn.gov 1-800-332-2667
Docket #: State File #/YR:
Employee
Vv.
Employer Notice Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals
Board. [List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information Type of Case [Check the most appropriate item]
L] Temporary disability benefits L] Medical benefits for current injury LC Medical benefits under prior order issued by the Court
List of Parties Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
Address:
Party’s Phone: Email: Attorney's Name: BPR#: Attorney’s Address: Phone:
Attorney's City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
rev. 10/18 Page 1 of 2 RDA 11082 Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: L]JEmployer LJEmployee
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FILED Aug 13, 2019
11:13 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY BIRTIE CLARK, ) Docket Number: 2019-02-0176 Employee, ) Vv. ) COOK OUT KINGSPORT, INC., ) State File Number: 17061-2019 Employer, ) And ) AMERICAN COMPENSATION, ) Judge Brian K. Addington Insurance Carrier. ) )
EXPEDITED HEARING ORDER (DECISION ON THE RECORD)
Cook Out filed a Request for Expedited Hearing and asked the Court to deny Birtie Clark’s claim for medical and temporary benefits. The Court reviewed the file and found it needed no additional information to determine whether Ms. Clark is likely to prevail at a hearing on the merits.' Because the evidence supports Cook Out’s assertions, the Court denies Ms. Clark relief at this time.
History of Claim
While Cook Out acknowledged that Ms. Clark sustained a compensable March 30, 2018 work injury, it denied through affidavits that Ms. Clark provided notice of a September 14, 2018 injury. It was not until after a February 2019 car wreck that Ms. Clark filed a Petition for Benefit Determination alleging a September 14, 2018 injury.
Cook Out argued that Ms. Clark never provided notice of a September 14, 2018 injury, and it has not paid any benefits on the claim. Also, she has not provided any affidavits or medical records to support her claim for benefits.
' The Court issued a docketing notice allowing the parties until August 12, 2019, to file objections or submit position statements. Ms. Clark did not respond.
1 Findings of Fact and Conclusions of Law
To prevail at an expedited hearing, Ms. Clark must present sufficient evidence to show she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6- 239(d)(1) (2018).
Here, the evidence shows Ms. Clark did not provide any affidavits or medical records to support a claim for benefits with a September 14, 2018 injury date. Cook Out provided affidavits that it received neither notice of a September 14, 2018 injury nor any medical records to support her claim. The Court holds Ms. Clark has not come forward with sufficient evidence to prove she is likely to succeed in proving she suffered a September 14, 2018 work injury that caused disablement and/or the need for medical treatment.
IT IS, THEREFORE, ORDERED as follows: 1. Ms. Clark’s request for temporary and medical benefits is denied at this time.
2. This case is set for a Scheduling Hearing on October 3, 2019, at 10:30 a.m. Eastern Time. You must call 855-543-5044 to participate in the Hearing. Failure to call might result in a determination of the issues without your participation.
ENTERED August 13, 2019.
/s/Brian K. Addington Judge Brian K. Addington Court of Workers’ Compensation Claims Appendix Exhibits/Technical Record
Rockforde King’s Affidavit
Jana Johnson’s Affidavit
Rick McCormick’s Affidavit
Request for Expedited Hearing
Dispute Certification Notice with Attachments Petition for Benefit Determination
Awe ye
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on August 13, 2019.
Name Certified | Email | Service sent to: Mail Birtie Clark, x 114 Walker Street, Apt. 6 Employee Kingsport, TN 37665 Rockforde King, Xx rking@emlaw.com Attorney for Employer
YY my WM i
Penny I Clerk of Court Court of Workers’ Compensation Claims WC.CourtClerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’ Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the form with the Clerk of the Court of Workers’ Compensation Claims within seven business days of the date the expedited hearing order was filed. When filing the Notice of Appeal, you must serve a copy upon all parties.
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 of the 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 the 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. If a transcript of the proceedings is to be filed, a licensed court reporter must prepare the transcript and file it with the court clerk within ten business days of the filing the Notice of Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both parties within ten business 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 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. If you wish to file a position statement, you must file it with the court clerk within ten business days after the deadline to file a transcript or statement of the evidence. The party opposing the appeal may file a response with the court clerk within ten business days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667. LB-1099
EXPEDITED HEARING NOTICE OF APPEAL Tennessee Division of Workers’ Compensation www. tn.gov/labor-wid/weomp.shtml wce.courtclerk@tn.gov 1-800-332-2667
Docket #: State File #/YR:
Employee
Vv.
Employer Notice Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals
Board. [List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information Type of Case [Check the most appropriate item]
L] Temporary disability benefits L] Medical benefits for current injury LC Medical benefits under prior order issued by the Court
List of Parties Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
Address:
Party’s Phone: Email: Attorney's Name: BPR#: Attorney’s Address: Phone:
Attorney's City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
rev. 10/18 Page 1 of 2 RDA 11082 Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: L]JEmployer LJEmployee
Appellee’s Address:
Appellee’s Phone: Email: Attorney’s Name: BPR#: Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
* Attach an additional sheet for each additional Appellee *
I, Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of Board of Workers’ Compensation Appeals on this the day of , 20
, certify that | have forwarded a true and exact copy of this
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation 220 French Landing Drive, I-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, | 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 Ail Dependents:
Relationship:
6. lam 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. | receive or expect to receive money from the following sources:
AFDC $ per month beginning ssl $ per month beginning Retirement $ per month beginning Disability $ per month beginning Unemployment $ per month beginning Worker's Comp.$ per month beginning Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082 9. My expenses are:
Rent/House Payment $ permonth Medical/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
| 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
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082