Foutch, James v. Burkeen Trucking Company

2019 TN WC 51
CourtTennessee Court of Workers' Compensation Claims
DecidedApril 1, 2019
Docket2015-07-0374
StatusPublished

This text of 2019 TN WC 51 (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, 2019 TN WC 51 (Tenn. Super. Ct. 2019).

Opinion

TENNESSEE BUREAU OF WORKERS’ COMPENSATION FILED IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT JACKSON April 1, 2019 TN COURT OF JAMES FOUTCH, ) Docket No. 2015-07-0374 WORKERS’ Employee, ) COMPENSATION v. ) State File No. 88348-2015 CLAIMS BURKEEN TRUCKING COMPANY, ) s6 PM Uninsured Employer. ) Judge Amber E. Luttrell

COMPENSATION HEARING ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART

This matter came before the Court on February 19, 2019, on Mr. Foutch’s Motion for Summary Judgment seeking workers’ compensation benefits for an ankle injury. Burkeen Trucking did not respond and has not participated in this case. For the reasons below, the Court holds he is entitled to judgment as a matter of law for his ankle injury.

Claim History

Mr. Foutch, a resident of Gibson County, Tennessee, worked as a truck driver for Burkeen Trucking. On September 24, 2015, while unloading lumber, Mr. Foutch fell off the truck and injured his right ankle. He gave notice to Burkeen Trucking, who failed to carry workers’ compensation insurance. Mr. Foutch sought emergency treatment at Henry County Medical Center and follow-up treatment from orthopedist Dr. Blake Chandler.

Mr. Foutch first saw Dr. Charles Rainbolt in the emergency room, who noted as 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 fracture of the right ankle and a possible tibia avulsion fracture. He referred Mr. Foutch to Dr. Blake Chandler.

Mr. Foutch saw Dr. Chandler at West Tennessee Bone and Joint Clinic and gave a consistent history of his work injury. Dr. Chandler diagnosed an ankle fracture and performed surgery. Mr. Foutch continued seeing Dr. Chandler or FNP Clay Nolen through January 6, 2016, when Dr. Chandler released him to return as needed. Dr. Chandler concluded Mr. Foutch sustained a two-percent permanent impairment to the body as a whole for his ankle injury based on the Sixth Edition of the AMA Guides.

1 Procedural History

Mr. Foutch filed a Petition for Benefit Determination seeking medical benefits for his ankle injury and an alleged shoulder injury.

Following an Expedited Hearing, the Court held Mr. Foutch was likely to prevail in establishing an ankle injury arising primarily out of and in the course and scope of his employment. It ordered Burkeen Trucking to pay Mr. Foutch’s past medical expenses for his ankle injury and ongoing medical treatment with Dr. Chandler. The Court denied benefits for the alleged shoulder injury.

A Request for Investigation was filed based on Mr. Foutch’s affidavit stating Burkeen Trucking was not insured for workers’ compensation. The investigator prepared an “Expedited Request for Investigation Report-Investigation Summary,” which indicated Burkeen Trucking was subject to the Workers’ Compensation Law and did not have insurance at the time of Mr. Foutch’s injury.

Following the Expedited Hearing Order, Mr. Foutch filed a Motion for Contempt based on Burkeen Trucking’s failure to comply with the Expedited Hearing Order. Upon finding a violation of the Bureau’s rules and the Workers’ Compensation Act, this Court referred Burkeen Trucking to the Compliance Unit for potential assessment of a civil penalty. An Agency Decision assessed a penalty.’

The Court ultimately entered a scheduling order, and Mr. Foutch later served Requests for Admissions to Burkeen Trucking on October 2, 2018. Burkeen Trucking did not respond to the requests. Mr. Foutch then filed this Motion for Summary Judgment.

Mr. Foutch’s Motion

Mr. Foutch argued that, by failing to answer the Requests for Admissions, Burkeen Trucking admitted all of the facts necessary to his claim. He argued there are no genuine issues of material fact for trial as to his entitlement to medical benefits, temporary, and permanent disability benefits for his ankle injury, and he is entitled to judgment as a matter of law.

While not included in his motion and Statement of Undisputed Facts, Mr. Foutch further asserted at the hearing that he is entitled to summary judgment for his alleged shoulder injury.

Law and Analysis

' The Court notes an almost two-year delay in this case due to Burkeen Trucking’s Chapter 11 bankruptcy filed in 2016. Upon Mr. Foutch’s notice of the dismissal of Burkeen Trucking’s bankruptcy in August 2018, the Court entered an order on September 4, 2018, setting a scheduling hearing.

2 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 of law.” Tenn. R. Civ. P. 56.04. The Workers’ Compensation Appeals Board has stated:

The burden is on the party pursuing summary judgment to demonstrate both that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. If the moving party does not meet its initial burden of production, the nonmoving party’s burden is not triggered and the motion for summary judgment should be denied. If the moving party makes a properly supported motion, the burden of production then shifts to the nonmoving party to demonstrate the existence of a genuine issue of material fact.

Rye v. Calsonic Kansei N. Am., Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 64, at *7-8 (Nov. 29, 2018) (internal citations omitted).

Mr. Foutch filed a Statement of Undisputed Material Facts containing twenty-six statements with citations to the unanswered Requests for Admissions.” Tennessee Rule of Civil Procedure 36 governs requests for admissions. The rule provides that an unanswered request is deemed admitted and conclusively establishes it unless the court on motion permits withdrawal or amendment of the admission. Tenn. R. Civ. P. 36.02; Neely v. Velsicol Chem. Corp., 906 S.W.2d 915, 917 (Tenn. Ct. App. 1995). Procedurally, admissions under Rule 36 may be brought to the trial court’s attention through a motion for summary judgment. /d. Because Burkeen Trucking failed to respond to the Requests for Admissions, the Court holds Mr. Foutch conclusively established the facts contained in the requests for purposes of this action.

Further, as Burkeen Trucking did not respond to the Statement of Undisputed Facts, the Court holds there are no genuine issues of material fact for trial regarding the compensability of Mr. Foutch’s ankle injury and his entitlement to workers’ compensation benefits. Thus, the Court holds he is entitled to summary judgment as a matter of law for the ankle injury.

The Court holds the undisputed facts in this case conclusively established the following:

e Mr. Foutch, a Tennessee resident, sustained a compensable work injury to his right ankle on September 24, 2015, and gave proper notice of the injury.

e His treatment and the medical bills incurred at Henry County Medical Center and with Dr. Blake Chandler were reasonable and necessary for his ankle injury.

* For brevity, the Court incorporates by reference Mr. Foutch’s twenty-six statements of undisputed facts in an appendix to this Order. Mr. Foutch was on light duty, which Burkeen could not accommodate, from September 24 through November 16, 2015, and off work completely from November 16 through December 3, 2015.

He has a permanent impairment of two percent to the body.

Mr. Foutch did not return to work at Burkeen Trucking because he was fired due to his workers’ compensation claim.

He is entitled to the increased benefit multipliers of 1.35 for not returning to work and 1.2 for his age.

His compensation rate is $497.91.

Mr.

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Related

Neely v. Velsicol Chemical Corp.
906 S.W.2d 915 (Court of Appeals of Tennessee, 1995)

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Bluebook (online)
2019 TN WC 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foutch-james-v-burkeen-trucking-company-tennworkcompcl-2019.