GOodman, Deborah v. Schwartz Paper Company , 2016 TN WC 257 ( 2016 )

FILED
TNCOURTOf
WORKERS 'OOJi,fili!:NSATION
CLAIMS
Tim.e 9':50 Al\l
TENNESSEE BUREAU OF WORKERS' COMPENSATION
COURT OF WORKERS' COMPENSATION CLAIMS
AT JACKSON
DEBORAH GOODMAN, ) Docket No.: 2016-07-0051
Employee, )
v. )
)
SCHWARTZ PAPER COMPANY, ) State File Number: 95295-2014
Employer, )
And )
)
SEDGWICK CMS, ) JUDGE AMBER E. LUTTRELL
Insurance Carrier/TP A. )
COMPENSATION HEARING ORDER
This matter came before the undersigned Workers' Compensation Judge for a
Compensation Hearing on September 27, 2016, pursuant to Tennessee Code Annotated
section 50-6-239 (2015). The parties stipulated Ms. Goodman sustained a compensable
work injury on December 1, 2014. The remaining disputed issue concerns Ms.
Goodman's degree of permanent impairment. The parties presented competing
impairment ratings from Dr. John Masterson, the authorized treating physician, and Dr.
Samuel Chung, Ms. Goodman's evaluating physician. The legal issue before the Court is
whether Ms. Goodman successfully rebutted the presumption of accuracy afforded Dr.
Masterson's permanent impairment rating by a preponderance of the evidence. 1 For the
reasons set forth below, the Court holds Ms. Goodman failed to do so.
History of Claim
Ms. Goodman is a fifty-eight-year-old resident of Gibson County, Tennessee,
employed by Schwartz Paper Company. 2 On December 1, 2014, Ms. Goodman worked as
1
The parties stipulated to pertinent findings of facts set forth in the Appendix of this Compensation Order and more
fully set forth in the Technical Record as Exhibits 5 and 6.
2
Ms. Goodman presently works as a team leader at Schwartz Paper Company.
a "lumping clerk" 3 and sustained an injury to her back and right hip. (T.R. 1.) She
testified that, while walking and checking boxes, a forklift operator lifted a wooden skid
that broke and boxes on the skid fell onto her right side. Ms. Goodman experienced pain
in her back, hip, and right leg.
Schwartz accepted Ms. Goodman's injury as a compensable claim and provided
authorized medical treatment with several providers. She eventually treated with her
panel-selected orthopedist, Dr. John Masterson, and later underwent evaluation, at her
attorney's request, by Dr. Samuel Chung. The parties took the depositions of both
physicians in this case.
Treatment and Impairment Ratings
Dr. Masterson first saw Ms. Goodman on February 26, 2015. (Ex. 3 at 6.) He
noted her history of injury and her complaints of right lower lumbar and sacroiliac pain
and tingling into her fourth and fifth toes. On physical exam, he found no clinical
evidence of radicular pain. !d. at 7. Specifically, Dr. Masterson noted a negative straight-
leg raise test, intact light touch sensation, and no focal weakness on motor strength
testing bilaterally. !d. at ex. 6.
Dr. Masterson reviewed the radiology reports and films of MRls performed on
Ms. Goodman's lumbar spine and right hip. !d. at 7-8. The lumbar spine MRl revealed no
disc herniation. !d. at 7. Dr. Masterson opined the hip findings, "were really non-specific,
and they could have been found on somebody with no complaints of pain." !d. at 9.
Based upon her history, exam, and MRl findings, Dr. Masterson diagnosed "lumbar
sprain/strain with sacroiliitis." !d.
Ms. Goodman returned to Dr. Masterson on two more occasions prior to reaching
maximum medical improvement (MMI). !d. Dr. Masterson did not find any evidence of
radiculopathy on clinical exam. Dr. Masterson treated Ms. Goodman conservatively for
her injury with medication, physical therapy, and modified duty restrictions, and placed
her at MMI on April9, 2015. !d. at 10-11.
Ms. Goodman continued working for Schwartz throughout her treatment. !d. Dr.
Masterson testified that, at the time of MMI, Ms. Goodman did not complain of any
activities causing her discomfort. He noted her continued complaint of some pain down
the right lower extremity and noted a previous sacroiliac injection provided temporary
relief. !d. at 11. On exam, Dr. Masterson found no point tenderness on palpation of the
lumbar spine. He noted most of her discomfort was localized in the right sacroilliac
region. She still had a negative seated straight-leg raise test and her motor and sensory
findings were intact bilaterally. !d. at ex. 6.
3
The lumping clerk ensures that all boxes removed from the semi-trucks are stacked and numbered correctly.
2
Following MMI, Ms. Goodman returned to Dr. Masterson, and he ordered an
EMG-nerve conduction study (NCS) to check for a nerve issue based on her continued
complaints. !d. at 13. The results of the EMG/NCS were unremarkable. Dr. Masterson
maintained that he did not find any medically-defined radiculopathy. !d. On her last visit
of June 18, 2015, Dr. Masterson refilled Ms. Goodman's prescription for Flexeril and
continued her on full-duty work. !d. She did not report any problems with continuing full-
duty work and has not returned since for any further treatment. !d. at 15-16.
Dr. Masterson assessed a 2% impairment to the body as a whole based upon a
diagnosis of lumbar sprain/strain in Table 17-4 of the American Medical Association's
Guides to the Evaluation of Impairment, 6th Edition ("AMA Guides"). !d. at 17. Dr.
Masterson placed Ms. Goodman in Class 1, which is the class for a "documented history
of sprain/strain type injury with continued complaints of axial and/or non-verifiable
radicular complaints and similar findings documented in previous examinations and
present at the time of evaluation." (Ex. 1.) Dr. Masterson testified Ms. Goodman's two
return visits after MMI did not alter his impairment opinion. !d. at 18.
Dr. Masterson did not assign any impairment for Ms. Goodman's hip because he
did not diagnose any injury specific to the hip. !d. at 21-22 and ex. 5.
Ms. Goodman subsequently underwent an independent medical examination
(IME) with Dr. Samuel Chung. (Ex. 2 at 7.) He agreed the lumbar MRI clearly showed
no findings of a herniated disc and the EMG/NCS was normal, showing no entrapment
neuropathy, plexopathy, or radiculopathy. !d. at 11-12. Dr. Chung testified an MRI can
confirm whether someone has radiculopathy, along with a history and clinical exam
findings. !d. at 13. He stated an EMG/NCS can help rule in a condition like
radiculopathy, but it cannot be used to completely rule it out. !d. at 11.
On physical exam of the lumbar spine, Dr. Chung noted decreased lumbar
extension, rotation, and side bending on the right side. !d. at 15. He found a right-sided
positive straight-leg raise test in both seated and supine positions. 4 Dr. Chung further
noted decreased reflexes at the patella and Achilles and an absent medial hamstring reflex
in the right lower extremity. !d. at 16. His sensory exam indicated decreased light touch
sensation at the L5 dermatomal distribution. !d. He further noted Ms. Goodman exhibited
pain in the right sacroiliac joint with deep palpation. !d. Dr. Chung testified that Dr.
Bingham also performed a physical exam on the date of Ms. Goodman's EMG/NCS and
noted decreased sensation at the posterior thigh, leg, and lateral foot. !d. at 28.
Dr. Chung diagnosed, "residual from low back injury secondary to traumatic event
with ongoing right lumbar radiculopathy, and residual from trauma to the right sacroilium
with ongoing right trochanteric bursitis." !d. at 24-25.
4
Dr. Chung testified the straight-leg raise exam tests the root tension sign. (Ex. 2 at 19.)
3
Concerning his hip diagnosis, Dr. Chung stated, "I really didn't necessarily use the
right hip MRI to confirm or not confirm her diagnosis. I think that her trochanteric
bursitis is not necessarily found in her imaging findings anyhow. I think that the - -
bursitis came about, I think, because of the lumbar radicular symptoms and subsequent
alteration of gait may have more than likely caused the bursitis." !d. at 57. He further
stated, "chronic trochanteric bursitis ... is my clinical diagnosis that I could make is that
that came about in my opinion not necessarily from the trauma itself." !d. at 58.
Dr. Chung assigned an impairment rating of 12% to the body for the back, based
on Table 17-4 on page 570 of the AMA Guides. Dr. Chung rated Ms. Goodman in the
"Motion Segment Lesions" section and placed her in Class 2, which requires,
"Intervertebral disk herniation and/or AOMSI at a single level with medically
documented findings; with or without surgery and documented radiculopathy at the
clinically appropriate level present at the time of examination." 5 !d. at 39. Dr. Chung
supported his use of this section stating, "that's the only section that actually has a
diagnosis of radiculopathy." He further stated, "Class 1 in the strain section, only has a
nonverifiable radicular complaints but not radiculopathy ... So, essentially I am forced to
use a section that clarifies a radiculopathy diagnosis." !d. at 40.
Dr. Chung additionally assessed an impairment rating of 3% to the body for his
diagnosis of trochanteric bursitis of the hip based on Table 16-4 of the AMA Guides. !d.
at 42. Dr. Masterson challenged Dr. Chung's rating of 3% for trochanteric bursitis of the
right hip, stating he never found trochanteric bursitis on any exam and never found an
altered gait. (Ex. 3 at 20.) Her pain was in the sacroiliac region, not in the bursa region.
!d.
Physicians' Opinions Regarding Radiculopathy
Dr. Masterson and Dr. Chung differed completely in their opinions on whether or
not Ms. Goodman suffered from radiculopathy.
a. Dr. Masterson
In his deposition, Dr. Masterson testified he never diagnosed the pain down Ms.
Goodman's right lower extremity as radiculopathy. !d. He explained there is a difference
between a complaint of pain going down the leg and a medical definition of
radiculopathy. !d. at 11-12. Dr. Masterson stated, "Radiculopathy is basically felt to be
nerve root pain and there's certain findings on physical exam which indicate that, and
typically you'll have findings on the MRI study that will correlate with that and she did
not have that." !d. at 12. Dr. Masterson rated Ms. Goodman in Class 1 for nonverifiable
radicular complaints. The AMA Guides define nonverifiable radicular complaints on
5
AOMSI- Alteration of Motion Segment Integrity
4
page 576 as follows:
Nonverifiable radicular complaints are defined as chronic persisting limb
pain or numbness, which is consistently and repetitively recognized in
medical records, in the distribution of a single nerve root that the examiner
can name and with the following characteristics: preserved sharp vs. dull
sensation and preserved muscle strength in the muscles in innervates, is not
significantly compressed on imaging and is not affected on
electrodiagnostic studies. Although there are subjective complaints of a
specific radicular nature, there are inadequate or no objective findings to
support the diagnosis of radiculopathy.
(Ex. 2 at ex. 4.)
Schwartz contended Ms. Goodman fits squarely within this definition based upon
Dr. Masterson's findings and the objective diagnostic studies.
Dr. Masterson testified to his disagreement with Dr. Chung's impairment ratings.
He stated, "In general, ratings are more correct in my opinion when they take into
account objective findings both on clinical exam and objective studies." (Ex. 3 at ex. 5.)
Specifically, Dr. Masterson stated, "Dr. Chung was clearly relying more on the subjective
complaints and he stated in his IME, 'Lastly, clinical study adjustments is not applied due
to the fact that the patient's clinical symptoms far outweigh the imaging studies."' Dr.
Masterson further disagreed with Dr. Chung's use of Table 17-4 on page 570 for an
intervertebral disk herniation and/or AOMSI, when her lumbar MRI showed no disk
herniation and her EMG/NCS of the right lower extremity was normal. Finally, he
testified he found no radiculopathy in any of his examinations, which is required in the
AMA Guides to justify a Class 2 impairment rating of 12%.
b. Dr. Chung
Dr. Chung diagnosed radiculopathy and referred to the AMA Guides' definition of
radiculopathy on page 576, which states,
For the purposes of the Guides, radiculopathy is defined as significant
alteration in the function of a single or multiple nerve roots and is usually
caused by mechanical or chemical irritation of one or several nerves. The
diagnosis requires clinical findings including specific dermatomal
distribution of pain, numbness, and/or parasthesis. Subjective reports of
sensory changes are more difficult to assess; therefore, these complaints
should be consistent and supported by other findings of radiculopathy.
There may be associated motor weakness and loss of reflex. A root tension
sign is usually positive. The identification of a condition that may be
5
associated with radiculopathy (such as a herniated disk) on an imaging
study is not sufficient to make a diagnosis of radiculopathy; clinical
findings must correlate with .the radiographic findings in order to be
considered.
(Ex. 2 at ex. 4.)
Dr. Chung opined Ms. Goodman has radiculopathy from a chemical irritation6 of
the nerve rather than a mechanical irritation7 that he stated can occur event without
having a herniated disc. (Ex. 2 at 35.) He testified, "In this case I would more likely
clinically feel that this is due to a chemical neuritis causing a radiculopathy of the right
lower extremity[.]" !d. at 41-42. He opined Ms. Goodman met the AMA Guides
definition of radiculopathy based on his exam findings of reflex loss, sensory loss, and a
positive straight-leg raise test. !d. at 37.
Dr. Chung disagreed with Dr. Masterson's diagnosis and questioned the accuracy
of his physical examinations. Dr. Chung stated, "I didn't see a neurological examination
in his office notes. He did some cursory examination but not specific neurological exam."
!d. at 19. He also criticized Dr. Masterson for not performing a reflex exam on the April 9
visit where Ms. Goodman reached MMI. On cross-examination, Dr. Masterson agreed
that he did not test Ms. Goodman's reflexes on her April 9 visit. Ms. Goodman's counsel
asked Dr. Masterson if reflex changes are significant for purposes of determining if a
patient has radiculopathy and Dr. Masterson responded, "They do not always correlate,
but if they're positive or they're asymmetric, they could indicate radiculopathy." (Ex. 3 at
35.)
Ms. Goodman filed a Petition for Benefit Determination seeking permanent partial
disability benefits. The parties did not resolve the disputed issues through mediation. This
hearing followed.
At the Compensation Hearing, Ms. Goodman testified to continued symptoms in
her back and right lower extremity for which she takes Naproxen to dull the symptoms.
She remains employed at Schwartz and was promoted to a team leader position. She
argued she is entitled to permanent partial disability benefits for injuries to her back and
right hip based upon Dr. Chung's impairment ratings. She contended her testimony
combined with the testimony of Dr. Chung sufficiently rebutted the presumption of
accuracy afforded to Dr. Masterson.
6
Dr. Chung described chemical irritation as follows: "If the nucleus pulposus happens to come out or tear away
from the inner and then causes a chemical reaction to the nerve root, that is what we call a chemotactic reaction
causing inflammation of the nerve root, causing redness, beefy redness, and inflammation, and that in tum changes
the signals and the symptoms of the nerve that goes down fu rther into a specific dermatome. (Ex. 1 at 35.)
7
Dr. Chung stated a mechanical irritation is referring to a disc herniation, tumor, or something that physically
compresses a nerve root. (Ex. l at 34.)
6
Schwartz countered that Dr. Chung's opinions regarding impairment for the back
and hip are not sufficient to overcome the presumption of accuracy attached to Dr.
Masterson's impairment opinion. It argued that Ms. Goodman did not have documented
radiculopathy according to Dr. Masterson and the MRI and EMG/NCS findings.
Schwartz further contended Dr. Chung utilized the wrong section of Table 17-4 in rating
Ms. Goodman and that Dr. Chung's diagnosis of hip trochanteric bursitis based on
subjective findings was unsupported by the evidence. Finally, Schwartz referred the
Court to page 573 of the AMA Guides, which provides, "Impairment related to radicular
complaints is included in the range of values for each diagnosis and accounted for by
grade, using the adjustment grid. There is no separate impairment for radiculopathy,
unless specified in the regional grid." (Ex. 1.) (Emphasis added.)
Findings of Fact and Conclusions of Law
Ms. Goodman has the burden of proof on all essential elements of her claim. Scott
v. Integrity Stajj!ng Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS
24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015). "[A]t a compensation hearing
where the injured employee has arrived at a trial on the merits, the employee must
establish by a preponderance of the evidence that he or she is, in fact, entitled to the
requested benefits." Willis v. All Staff, No. 2014-05-0005, 2015 TN Wrk. Comp. App.
Bd. LEXIS 42, at *18 (Tenn. Workers' Comp. App. Bd. Nov. 9, 2015); see also Tenn.
Code Ann. § 50-6-239(c)(6) (2015). In analyzing whether Ms. Goodman has met her
burden, the Court will not construe the law remedially or liberally in her favor, but
instead must construe the law fairly, impartially, and in accordance with basic principles
of statutory construction favoring neither Ms. Goodman nor Schwartz. See Tenn. Code
Ann. § 50-6-116 (2015).
Compensability and Medical Benefits
The parties stipulated this is a compensable claim. As this is a compensable
claim, the Court finds Ms. Goodman is entitled to reasonably necessary future medical
treatment as recommended by her authorized treating physician, Dr. Masterson, and as
required by Tennessee Code Annotated section 50-6-204 (20 15).
Extent of disability
For post-July 1, 2014 injuries, permanent partial disability is paid at sixty-six and
two-thirds percent of the injured employee's average weekly wage for the period of
compensation as determined by multiplying the employee's impairment rating by 450
weeks. Tenn. Code Ann. § 506-207(3)(A) (2015). Because Ms. Goodman returned to
employment at the same or greater wage during her initial compensation period, she is
limited to these benefits and not entitled to any enhancement factors.
7
As noted, Dr. Masterson assessed a 2% permanent impairment to the body as a
whole pursuant to the AMA Guides for Ms. Goodman's back injury. (Ex 3.) Dr. Chung,
using the same reference, assessed a 12% permanent impairment for the back and 3%
impairment for the hip. (Ex. 1.) Subject to rebuttal by a preponderance of the evidence,
Dr. Masterson's impairment rating is presumed accurate. Tenn. Code Ann. § 50-6-
204(k)(7) (20 15).
In considering whether Ms. Goodman rebutted Dr. Masterson's rating by a
preponderance of the evidence, the Court notes Dr. Chung challenged the correctness of
Dr. Masterson's impairment rating for the back by testifying his examinations were
deficient. Dr. Chung testified, "I didn't see a neurological examination in his office notes.
He did some cursory examination but not [a] specific neurological exam." Id. at 19. The
Court finds Dr. Chung's testimony unpersuasive.
Dr. Masterson's records indicated he consistently performed straight-leg raise
testing, sensory exams of the lower extremities, and motor-strength testing of the lower
extremities. (Ex. 3 at ex. 6.) Moreover, Dr. Masterson testified he examined Ms.
Goodman for radiculopathy. He repeatedly and unequivocally stated he never found
radiculopathy on any physical examination over his five-month course of treatment. (Ex.
3 at 9 and 14.) Moreover, Ms. Goodman's normal lumbar MRI and normal EMG/NCS
were consistent with Dr. Masterson's findings. All of these examinations and tests are
neurologic in nature.
Ms. Goodman specifically argued Dr. Masterson's exam on April 9, 2015, the date
she reached MMI, was deficient because he did not test her reflexes. Dr. Masterson
agreed the presence of positive reflex findings could indicate radiculopathy. 8 While Dr.
Masterson acknowledged in his deposition that he did not test her reflexes on April 9, the
Court notes that Dr. Masterson did test Ms. Goodman's reflexes on her next visit of May
4, and he further testified that his exam findings on May 4 did not change his diagnosis or
rating; and that she still did not have medically defined radiculopathy. Id. at 14. In
addition, to further check for any nerve issue, Dr. Masterson ordered an EMG/NCS on
May 4, which was consistent with his exam findings and indicated no entrapment,
neuropathy, plexopathy, or radiculopathy. Id. at 14.
Concerning Ms. Goodman's diagnosis and impairment for her back injury, the
Court is persuaded that Dr. Masterson's diagnosis and assignment of Class 1 impairment
for "continued complaints of ... nonverifiable radicular complaints and similar findings
documented in previous examinations and present at the time of examination" were
8
The Court notes Ms. Goodman's testimony asserting Dr. Masterson did not examine her on April 9. However, the
Court resolves this conflict in testimony in Dr. Masterson's favor based upon his office note of April 9 reflecting his
physical exam findings "today" and his testimony regarding his exam findings on that date. Moreover, the Court
notes despite Ms. Goodman's testimony of no exam, she argued, through counsel, that Dr. Masterson's April9 exam
was deficient, which acknowledges there was an exam performed.
8
fundamentally sound and consistent with the directives of the AMA Guides.
To hold otherwise, as Ms. Goodman requests, would require the Court to ignore or
disregard the negative exam findings of Dr. Masterson on five visits over the course of
five months, the normal lumbar MRI, the normal EMG/NCS, and the impairment rating
directives of the AMA Guides. The Court declines to do so.
Concerning the hip, the Court notes Dr. Chung diagnosed trochanteric bursitis
based upon his one-time exam and his finding of an altered gait that he attributed to
lumbar radiculopathy. Dr. Masterson testified he never found trochanteric bursitis on any
exam and never found an altered gait. (Ex. 3 at 20.) He testified Ms. Goodman's pain was
in the sacroiliac region, not in the bursa region. !d. The Court finds the proof insufficient
to support Dr. Chung's separate diagnosis and impairment rating for the hip.
Accordingly, upon thorough consideration of the evidence, the Court holds Ms.
Goodman has not rebutted the presumption of accuracy of Dr. Masterson's rating and sets
the impairment rating at 2% to the body as a whole resulting in nine weeks (450 weeks
multiplied by 2%) of benefits. At her stipulated compensation rate of $313.44, Ms.
Goodman is entitled to permanent partial disability benefits totaling $2,820.96.
Discretionary Costs
Ms. Goodman filed a Motion to Assess Discretionary Costs. (T.R. 7.) Ms.
Goodman also filed a Bill of Costs totaling $1,183.25, itemized as follows:
1. Deposition fee ofDr. Samuel Chung $750
2. Court reporter fee for the Deposition of Dr. Chung $341
3. Court reporter fee for the Deposition of Dr. Masterson $92.25
Ms. Goodman argued these costs were accurate, reasonable, and necessary in the
preparation for trial in this action and are recoverable costs. Schwartz filed an Objection
in Opposition to Employee's Motion for Discretionary Costs. (T.R. 8.)
At the Compensation Hearing, Schwartz conceded Ms. Goodman is entitled to the
transcript fee for Dr. Masterson's deposition of $92.25, but maintained the remaining
costs are disputed. Schwartz argued Ms. Goodman is not entitled to deposition or court
reporter costs associated with the independent medical evaluation of Dr. Chung. It
contended Rule 54.04 of the Tennessee Rules of Civil Procedure describes the allowable
discretionary costs as "reasonable and necessary expert witness fees." In the event the
Court holds Ms. Goodman did not overcome the presumption of accuracy afforded Dr.
Masterson, Schwartz argued Dr. Chung's deposition was not reasonable and necessary
and should not be taxed to the employer.
9
Here, in light of the Court's decision that Ms. Goodman did not successfully rebut
the presumption of accuracy afforded to Dr. Masterson, the Court, in its discretion, denies
the request for the costs associated with Dr. Chung's deposition. Ms. Goodman's motion
for the reasonable and necessary deposition costs for Dr. Masterson's deposition is
granted.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Goodman shall recover from Schwartz Paper Company permanent partial
disability benefits in the amount of $2,820.96, representing a 2% permanent partial
disability to the body, or 9 weeks of compensation at the stipulated compensation
rate of$313.44. These benefits, having accrued, are payable in a lump sum.
2. Ms. Goodman shall receive lifetime future medical benefits pursuant to statute.
3. Ms. Goodman is awarded a total amount of $92.25 for discretionary costs to be
paid by Schwartz Paper Company.
4. Ms. Goodman's attorney is awarded an attorney's fee of twenty percent and any
incurred expenses to be paid from Ms. Goodman's award.
5. Costs of this cause of $150.00 are assessed against Schwartz Paper Company
pursuant to Tenn. Comp. R. and Reg. 0800-02-21-.07 (2015), to be paid within
five days of this order becoming final.
6. The Employer shall prepare and file a Statistical Data Form within ten business
days of the date of entry of this Order.
Right to Appeal:
Tennessee Law allows any party who disagrees with this Compensation Hearing
Order to appeal the decision to the Workers' Compensation Appeals Board or the
Tennessee Supreme Court. To appeal your case to the Workers' Compensation Appeals
Board, you must:
10
1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within thirty calendar days of the
date the Workers' Compensation Judge entered the Compensation Hearing Order.
3. Serve a copy of the Compensation Hearing Notice of Appeal upon the opposing
party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of
Indigency in accordance with this section shall result in dismissal of the
appeal.
5. The party filing the notice of appeal, having the responsibility of ensuring a
complete record on appeal, may request, from the Court Clerk, the audio recording
of the hearing for the purpose of having a transcript prepared by a licensed court
reporter and filing it with the Court Clerk within fifteen calendar days of the filing
of the Expedited Hearing Notice of Appeal. Alternatively, the party filing the
appeal may file a joint statement of the evidence within fifteen calendar days of
the filing of the Compensation Hearing Notice of Appeal. The statement of the
evidence must convey a complete and accurate account of what transpired in the
Court of Workers' Compensation Claims and must be approved by the workers'
compensation judge before the record is submitted to the Clerk of the Appeals
Board. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (2015).
6. After the Workers' Compensation Judge approves the record and the Court Clerk
transmits it to the Workers' Compensation Appeals Board, the appeal will be
docketed and assigned to an Appeals Board Judge for review. At that time, a
docketing notice shall be sent to the parties. Thereafter, the parties have fifteen
calendar days to submit briefs to the Appeals Board for consideration. See Tenn.
Comp. R. & Regs. 0800-02-22-.02(3) (2015).
11
To appeal your case directly to the Tennessee Supreme Court, the Compensation
Order must be "final" (see Tennessee Code Annotated section 50-6-239(c)(7)) and you
must comply with the Tennessee Rules of Appellate Procedure.
12
APPENDIX
Exhibits:
1. AMA Guides Sixth Edition-Tables 17-4 and 16-4;
2. Deposition Transcript of Dr. Samuel Chung;
3. Deposition Transcript of Dr. John Masterson; and,
4. Employee's Responses to Request for Admissions.
Technical record: 9
1. Petition for Benefit Determination;
2. Pre-Discovery and Post-Discovery Dispute Certification Notices;
3. Request for Initial Hearing;
4. Initial Hearing Order;
5. Employee's Pre Compensation Hearing Statement;
6. Employer's Pre Compensation Hearing Statement;
7. Employee's Motion to Assess Costs; and
8. Employer's Response to Employee's Motion to Assess Costs.
9
The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Compensation Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
13
Stipulations of Fact:
1. Ms. Goodman sustained an injury by accident arising primarily out of and in the
course and scope of her employment.
2. Ms. Goodman's date of injury is December 1, 2014.
3. Ms. Goodman gave notice of the injury to the Employer on December 1, 2014.
4. Ms. Goodman is fifty-eight years old and resident of Gibson County.
5. Ms. Goodman is a high school graduate.
6. Ms. Goodman received authorized medical treatment with Madison Family
Practice, Sports Orthopedic and Spine, Dr. John Masterson, Dynamax PT and Dr.
Ron Bingham.
7. All authorized medical expenses have or will be paid by Employer.
8. Ms. Goodman reached maximum medical improvement on April9, 2015.
9. As Ms. Goodman has continued working for Schwartz earning the same or greater
wages as she was earning prior to the injury, no multiplier factors apply.
10. Ms. Goodman's average weekly wage is $470.14 and compensation rate is
$313.44.
11. Ms. Goodman did not miss sufficient time from work to qualify for any
temporary disability benefits.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Compensation Hearing Order
was sent to the following recipients by the following methods of service on this the 31st
day of October, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Jay DeGroot, Esq., X jdegroot@garretylaw.com
Employee's Counsel ghayes@garretvlaw .com
Kitty Boyte, Esq., X kbovte@constangy: .com
Employer's Counsel
urn, Clerk of Court
orkers' Compensation Claims
14