Foutch, James v. Burkeen Trucking Company

2016 TN WC 57
CourtTennessee Court of Workers' Compensation Claims
DecidedMarch 10, 2016
Docket2015-07-0374
StatusPublished

This text of 2016 TN WC 57 (Foutch, James v. Burkeen Trucking Company) is published on Counsel Stack Legal Research, covering Tennessee Court of Workers' Compensation Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foutch, James v. Burkeen Trucking Company, 2016 TN WC 57 (Tenn. Super. Ct. 2016).

Opinion

IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT JACKSON

JAMES FOUTCH, ) Docket No.: 2015-07-0374 Employee, ) v. ) State File Number: 88348-2015 BURKEEN TRUCKING COMPANY ) Employer. ) Judge Amber E. Luttrell

EXPEDITED HEARING ORDER GRANTING CERTAIN MEDICAL BENEFITS AND DENYING TEMORARY DISABILITY BENEFITS (FILE REVIEW DETERMINATION)

THIS CAUSE came before the undersigned Workers' Compensation Judge on the Request for Expedited Hearing filed by the employee, James Foutch, pursuant to Tennessee Code Annotated section 50-6-239 (2015). Mr. Foutch requested the Court decide his interlocutory claim for medical and temporary disability benefits based on a review of the file without an evidentiary hearing. The employer, Burkeen Trucking, did not request an in-person evidentiary hearing or otherwise respond to the Request for Expedited Hearing.

The Court issued a Docketing Notice on February 2, 2016, allowing the parties seven business days to raise any objections to the admissibility of any document filed in this case. (Ex. 7.) The parties filed no objections. The Court further advised Burkeen Trucking of the Bureau's Mediation and Procedure Rule 0800-02-21-.05 requiring corporations to be represented by counsel in all court proceedings. The Court ordered Burkeen Trucking to retain counsel within seven business days of issuance of the Docketing Notice to proceed in this action. No attorney filed an appearance on behalf of Burkeen Trucking.

This Court finds it does not need any additional information to determine whether Mr. Foutch is likely to prevail at a hearing on the merits of the claim. Accordingly, pursuant to Rule 0800-02-21-.14(l)(c) (2015) of the Tennessee Compilation Rules and Regulations, the Court decided the issues in this case upon a review of the written

1 materials and without the benefit of an evidentiary hearing. 1

The issue in this case is whether Mr. Foutch is likely to prevail at a hearing on the merits that his right ankle and shoulder injuries arose primarily out of and in the course and scope of his employment. If so, Mr. Foutch requested medical and temporary disability benefits. For the reasons set forth below, the Court finds Mr. Foutch came forward with sufficient evidence from which this Court concludes he is likely to prevail at a hearing on the merits for his right ankle injury. The Court finds Mr. Foutch did not present sufficient information from which this Court can conclude he is likely to prevail at a hearing on the merits regarding his alleged right shoulder injury or temporary disability benefits.

History of Claim

Mr. Foutch is a fifty-eight-year-old resident of Gibson County, Tennessee. (T.R. 1.) He worked as a truck driver for Burkeen Trucking since May 2015? (Ex. 1.) According to his affidavit, on September 24, 2015, while unloading lumber at Henry County Hardwood, Mr. Foutch fell off the truck and injured his right ankle and right shoulder. !d.

An ambulance transported Mr. Foutch to the emergency room at Henry County Medical Center. (Ex. 3.) Mr. Foutch reported his injury to "Ms. Mary," an office employee at Burkeen Trucking. He also reported his injury to Billy Burkeen, owner of Burkeen Trucking. Mr. Foutch testified by affidavit that Mr. Burkeen advised he did not carry workers' compensation insurance because he could not afford it. Mr. Foutch stated Mr. Burkeen assured him he would pay his medical bills. (Ex. 1.)

Mr. Foutch saw Dr. Charles Rainbolt in the emergency room. (Ex. 3.) The medical records indicated the following history, "He was working on flatbed fell 8ft. landed on right foot has limited range of motion and lot of pain." Dr. Rainbolt diagnosed a closed fracture of the right ankle. He discharged Mr. Foutch with crutches and pain medication, and referred him to an orthopedist, Dr. Blake Chandler.

On September 28, 2015, Mr. Foutch saw Dr. Chandler at West Tennessee Bone and Joint. (Ex. 4.) Dr. Chandler noted a history of Mr. Foutch falling from a loaded trailer

1 By making a file review determination, the Court makes no decision as to the admissibility of the information submitted in the case file absent an objection from a party. The Court notes in this case that the parties did not raise any objection to admissibility of any information in the file; therefore, the Court reviewed and considered the entire case file in making its determination. 2 The Court notes Mr. Foutch stated in his Affidavit that Burkeen Trucking hired him as a company driver, not an independent contractor. Burkeen Trucking paid Mr. Foutch $0.35 a mile, paid tolls, and reimbursed Mr. Foutch for scales. Burkeen Trucking owned the truck driven by Mr. Foutch. The Court notes Mr. Foutch's status as an employee of Burkeen Trucking or independent contractor was not listed as a disputed issue in the Dispute Certification Notice. Thus, the Court did not consider any such defense in this file review determination.

2 and seeking emergency care for his ankle on September 24. Upon exam, Dr. Chandler diagnosed a lateral malleolus fracture. Dr. Chandler performed an open reduction internal fixation (ORIF) on Mr. Foutch's ankle on September 29, 2015.

Mr. Foutch continued seeing Dr. Chandler or FNP Clay Nolen for follow-up care through November 12, 2015. On this visit, Practitioner Nolen instructed Mr. Foutch to return in three weeks for x-rays and to discontinue his use of crutches. Mr. Foutch provided no additional medical records. (Ex. 4.)

Mr. Foutch filed medical bills associated with his emergency room visit at Henry County Medical on the date of injury. He also filed medical bills from West Tennessee Bone and Joint that correspond with his surgery on September 29, 2015, and a follow-up visit on October 14, 2015. (Ex. 6.)

Mr. Foutch filed a Petition for Benefit Determination seeking medical benefits. The parties did not resolve the disputed issues through mediation, and the mediating specialist filed a Dispute Certification Notice adding temporary disability benefits as a disputed issue. Mr. Foutch filed a Request for Expedited Hearing seeking a ruling based upon a review of the file without an evidentiary hearing. Burkeen Trucking filed no response to the Request for Expedited Hearing.

Findings of Fact and Conclusions of Law

Because this case is in a posture of an Expedited Hearing, Mr. Foutch need not prove every element of his claim by a preponderance of the evidence in order to obtain relief. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). Instead, he must come forward with sufficient evidence from which this court might determine he is likely to prevail at a hearing on the merits. !d.; Tenn. Code Ann. § 50-6- 239(d)(l) (2015). In analyzing whether he has met his burden, the Court will not remedially or liberally construe the law in his favor, but instead shall construe the law fairly, impartially, and in accordance with basic principles of statutory construction favoring neither Mr. Foutch nor Burkeen Trucking. See Tenn. Code Ann. § 50-6-116 (2015)..

To be compensable, Mr. Foutch must show his alleged injury arose primarily out of and in the course and scope of his employment. Tenn. Code Ann. § 50-6-102(14) (20 15). He must also show his injury was caused by an incident, or specific set of incidents, identifiable by time and place of occurrence. Tenn. Code Ann.

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2016 TN WC 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foutch-james-v-burkeen-trucking-company-tennworkcompcl-2016.