The opinion
FILED
Jun 21, 2024
02:15 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
JOHN OLDHAM, ) Docket No. 2022-03-0420
Employee, )
v. )
FREEMAN WEBB COMPANY )
REALTORS d/b/a SUNNY BROOK, ) State File No. 66575-2020
Employer, )
And )
ZURICH AMERICAN INSURANCE )
COMPANY, ) Judge Pamela B. Johnson
Carrier. )
COMPENSATION ORDER
John Oldham broke his leg at work, and Freeman Webb accepted the claim as
compensable. The parties settled Mr. Oldham’s original permanent partial disability award
with lifetime future medical benefits.
At the expiration of his initial compensation period, Mr. Oldham filed a petition for
permanent total disability or alternatively increased benefits, and discretionary costs. 1
Freeman Webb denied that Mr. Oldham is entitled to any further benefits. It first argued
that his permanent total disability claim was barred by the settlement, and second that any
other benefits should be denied because his current condition was not a direct and natural
consequence of his original work injury.
For the reasons below, the Court holds that Mr. Oldham is entitled to permanent
total disability benefits and discretionary costs.
1
Mr. Oldham alternatively asked for extraordinary relief, but he withdrew the request at the Compensation
Hearing.
1
History of Claim
Mr. Oldham, age 59, worked as a maintenance technician for Freeman Webb. On
October 6, 2020, he fell, breaking his right femur. Dr. Scott Smith, the panel-selected
physician, repaired the comminuted fracture using a rod and screws. Due to ongoing pain
and a nonunion, Dr. Smith performed a second surgery in June 2021, using a bone graft
and hardware. Dr. Smith placed Mr. Oldham at maximum medical improvement on
November 4 and assigned an 8% permanent impairment. He also placed permanent
restrictions of no climbing ladders, lifting no more than 20 pounds occasionally, and
standing or walking no more than four hours per day. Dr. Smith completed an application
for Mr. Oldham to receive a disabled driver vehicle tag and wrote that he needed crutches
permanently.
Freeman Webb terminated Mr. Oldham in April 2021 because he missed work for
more than 26 weeks, and company policy required termination even if the absence is due
to a work injury. Mr. Oldham has not worked since.
Mr. Oldham saw Dr. William Kennedy for an independent medical examination in
November 2021. Dr. Kennedy confirmed Dr. Smith’s rating and found his treatment of Mr.
Oldham appropriate. But he recommended stricter permanent restrictions:
I recommend that his activities of daily living and any employment should
not require repeated bending that may compromise his balance – bending
from the waist that may compromise his balance. He should not be required
to carry out any squatting or kneeling. He should not attempt to climb
ladders, work at heights, work on his hands and knees or crawl. He should
not attempt to work over rough or irregular surfaces or on sloping surfaces.
He must have access to a handrail any time he ascends or descends more than
a total of one flight of stairs per day. He should be able to sit at least 75
percent of the time, with opportunities to change positions at least every 30
minutes. Lifting and carrying should not exceed 10 pounds occasionally or 5
pounds frequently. Of course, assuming that such lifting and carrying does
not interfere with his use of a gait aid.
Mr. Oldham supplemented his medical proof with a vocational disability evaluation
by Michael Galloway. Mr. Galloway interviewed Mr. Oldham, administered academic
testing, and reviewed various records. Mr. Oldham’s work history included work as a
maintenance technician, production line assembler, garage door installer, and construction
worker. His work required light to heavy physical demands and ranged from unskilled to
skilled. He has a high school diploma, attended limited technical courses in computer
training without receiving a degree or certification, and rebuilds computers as a hobby to
resell. Mr. Oldham previously had HVAC/EPA certifications.
2
Mr. Galloway noted that Mr. Oldham helped his wife with household chores, such
as vacuuming, laundry, loading the dishwasher, and cooking. He was able to stand for 15-
20 minutes then needed to sit. He said he can no longer mow his yard or service his
vehicles, and is no longer able to fish, camp, or ride bikes as he did before the injury.
In a March 2022 report, Mr. Galloway determined Mr. Oldham was 91%
vocationally disabled based on the local labor market, his age and education, and lack of
transferable job skills when considering Dr. Smith’s restrictions. If he considered Dr.
Kennedy’s restrictions, Mr. Galloway found Mr. Oldham 100% vocationally disabled. In
July 2022, Mr. Galloway concluded Mr. Oldham was 100% vocationally disabled when he
saw Dr. Smith’s notation that he use crutches permanently on the disabled driver vehicle
tag application.
On April 28, 2022, the Court approved an 8% permanent partial disability award
(original award), or $18,874.17, with lifetime future medical treatment. The settlement
agreement stated that Mr. Oldham’s initial compensation period would expire on July 14,
2022. The agreement included language that Mr. Oldham might then file a Petition for
Benefit Determination to determine whether he was “entitled to increased benefits under
Tennessee Code Annotated section 50-6-207(3)(B) or extraordinary relief under Tennessee
Code Annotated section 50-6-242(a).” The agreement also included this language:
This document represents the entire agreement and the parties’ complete
understanding with no representations or promises other than those in this
agreement. All prior negotiations, representations and agreements are
merged into this agreement . . . The parties signed this agreement, which is
binding when the judge approves the settlement.
In November 2022, Mr. Oldham filed a petition seeking permanent total disability
benefits, or alternatively increased benefits or extraordinary relief. Freeman Webb denied
his entitlement to additional benefits on several grounds. With regard to his claim for
permanent total disability, Freeman Webb argued that the Workers’ Compensation Law
and the terms of the settlement agreement do not allow Mr. Oldham to seek permanent
total disability after resolving his original award. As to his claim for a resulting award or
increased benefits, Freeman Webb argued Mr. Oldham was not entitled to them because
the need for the second surgery due to a nonunion and resulting permanent restrictions was
caused by Mr. Oldham’s continued smoking and were not a direct and natural consequence
of his original work injury.
On the issue of the nonunion, the parties introduced the deposition testimony of Drs.
Kennedy and Smith.
Dr. Kennedy testified that Mr. Oldham’s fracture was unstable and challenging to
repair. Dr. Kennedy said that, given the nature of the fracture, it had only a 50% chance of
3
healing from the beginning and was the most likely cause of the nonunion. He said Mr.
Oldham’s smoking was only a minor contributing factor to the nonunion.
Dr. Smith described Mr. Oldham’s fracture as long, in three pieces, and involving a
gap between the fracture, which caused instability and complicated its healing. Dr. Smith
further described the gap as a significant factor in causing the nonunion. Dr. Smith also
wrote that the muscle and circulation damage from the injury were unknown. He testified
that while fractures like Mr. Oldham’s have an 85-95% chance of healing, the nonunion
“obviously was a natural consequence that occurred . . . [as] not every femur fracture
heals.” Dr. Smith agreed that Mr. Oldham’s smoking was a contributing factor, but multiple
factors led to the nonunion. Dr. Smith stated that Mr. Oldham’s nonunion was a “rare,
expected consequence. . . some [fractures] don’t heal and you have no explanation why.”
Ultimately, Dr. Smith concluded that Mr. Oldham’s fracture successfully healed after the
second surgery.
Both physicians were also asked to review video surveillance obtained by Freeman
Webb of Mr. Oldham over three days in February 2023. Dr. Kennedy observed Mr.
Oldham limping, protecting his right leg, and taking weight off of it. Dr. Kennedy stated
that the video supported Mr. Oldham’s expected abilities. Dr. Smith agreed that the video
showed Mr. Oldham limping and “[m]ostly it showed that he was having a little bit of pain
and his quadriceps is weak because he’s keeping his knee extended. He was not – he was
concerned about his knee buckling.” Similarly, Mr. Galloway watched the video and
testified that Mr. Oldham did not appear to do anything outside of his restrictions. Mr.
Oldham is not seen using crutches in the video; he initially is seen at a storage facility
without any walking aid and is later using a cane to enter and exit a store.
At the hearing, Mr. Oldham testified to his pre- and post-injury activities and
limitations. Consistent with what he told Mr. Galloway, he previously enjoyed camping
and fishing, and he was able to do his own yardwork and home and car repairs. After the
injury, he cannot do those activities. He admitted that he has gone camping since the injury,
but family members had to set up his camper.
Mr. Oldham said he sits 75% of the day with his leg elevated due to swelling but he
has to get up every 20-30 minutes to walk because he cannot sit too long. He also said he
is unable to stand for long periods or walk long distances. He occasionally uses crutches
when walking long distances and frequently uses a cane unless he is able to brace himself
on nearby objects.
He said he has not worked since the injury, explaining that his restrictions were “too
much” to allow him to work. He did agree that he has rebuilt computers to resell.
4
Motion for Partial Summary Judgment
Freeman Webb moved for partial summary judgment seeking dismissal of Mr.
Oldham’s request for permanent total disability as a matter of law. The Court must first
address that motion.
Freeman Webb first argued that Mr. Oldham settled his original award of permanent
partial disability benefits in April 2022, although Dr. Kennedy and Mr. Galloway had
already evaluated him for a permanent total disability claim. Thus, the settlement
agreement resolved all issues related to his claim except those specifically listed in the
agreement – increased benefits under Tennessee Code Annotated section 50-6-207(3)(B)
(2023) and extraordinary relief under section 50-6-242(a)(2). Freeman Webb went on to
say that both sections 207(3)(B) and 242(a) allow an employee to seek additional
permanent partial disability at the expiration of the initial compensation period, but
permanent total disability benefits under section 50-6-207(4) are not benefits that Mr.
Oldham might seek at a future date.
Freeman Webb additionally argued that because Mr. Oldham entered into a binding
settlement agreement for permanent partial disability benefits, which was approved, he is
not eligible for permanent total disability benefits under section 50-6-207(4).
Mr. Oldham countered that Freeman Webb waived its right to oppose his claim for
permanent total disability benefit when it did not plead its defense on the Dispute
Certification Notices as required by Tennessee Compilation Rules and Regulations 0800-
0-21-.21(3) (2023) and Tennessee Rules of Civil Procedure 8.03 (2023).
He further contended that section 50-6-207 includes as benefits available to injured
employees both permanent partial disability benefits under subsection (3) and permanent
total disability benefits under subsection (4).
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. To prevail, Freeman Webb must do one of two
things: (1) submit affirmative evidence that negates an essential element of Mr. Oldham’s
claim, or (2) demonstrate that his evidence is insufficient to establish entitlement to
benefits. Tenn. Code Ann. § 20-16-101; see also Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Freeman Webb meets its burden, Mr.
Oldham must “demonstrate the existence of specific facts in the record which could lead a
rational trier of fact to find in [his] favor.” Id. at 265.
For purposes of summary judgment, the parties did not dispute any material facts;
the disputes are legal in nature and require an analysis of sections 50-6-207(3) and (4) and
5
section 50-6-242(a)(2).
Section 50-6-207 provides the types of disability benefits available under the
Workers’ Compensation Law. The section begins, “The following is the schedule of
compensation to be allowed employees under this chapter[.]” 2 Subdivisions (1) and (2)
address temporary total and temporary partial disability benefits. Subdivisions (3) and (4)
outline permanent partial and permanent total disability benefits.
Specifically, subdivision (3) reads, “(A) In case of disability partial in character
but adjudged to be permanent,” 3 the employee is entitled to his weekly compensation rate
“for the period of compensation, which shall be determined by multiplying the employee’s
impairment rating by four hundred fifty (450) weeks.” (Emphasis added). “The employee
shall receive these benefits, in addition to the benefits provided in subdivisions (1) and (2)
. . . whether the employee has returned to work or not[.]” This is the employee’s “original
award.”
In addition to the benefits available under subsection (A), subdivision (B) provides
that an employee is entitled to increased benefits if the employee has not returned to work,
earning the same or greater wages, at the time his period of compensation provided by
subdivision (3)(A) ends, or one hundred eighty (180) days after the employee reaches
maximum medical improvement, whichever is later.
Alternatively, under section 50-6-242(a)(2), “in extraordinary cases where the
employee is eligible for increased benefits under § 50-6-207(3)(B),” the employee may be
entitled to his weekly compensation rate “for a period not to exceed the two hundred
seventy-five (275) weeks inclusive of the benefits provided to the employee under § 50-6-
207(3)(A).”
However, an employee may be entitled to permanent total disability benefits under
section 50-6-207(4)(B) “[w]hen an injury . . . totally incapacitates the employee from
working at an occupation that brings the employee an income[.]” Those benefits are paid
“during the period of the permanent total disability until the employee is, by age, eligible
for full benefits in the Old Age Insurance Benefit Program under the Social Security Act
(42 U.S.C. § 401 et seq.)[.]” 4
A plain reading of the statute requires the expiration of the initial compensation
period before the Court may award increased benefits under section 50-6-207(3)(B) or
extraordinary relief under section 50-6-242. The statute is silent regarding any time
component before an employee may seek permanent total disability benefits.
2
Before enactment of the Reform Act of 2013, section 50-6-207 contained the same language under prior
law.
3
The introduction to section 50-6-207(3)(A) contained the same language under prior law.
4
The same language is contained in section 50-6-207(4)(A) and (B) under prior law.
6
The parties cited no authority, and the Court also has found none, where an
employee has been awarded permanent total disability after an award or settlement of the
original award. Therefore, this is an issue of first impression under the Workers’
Compensation Law.
Turning to prior law for guidance, two cases support an award of permanent total
disability after reconsideration.
In Caruthers v. Aerostructures Corporation, No. M2005-01370-WC-R3-CV, 2006
Tenn. LEXIS 1134 (Tenn. Workers’ Comp. Panel July 24, 2006), the employee injured her
neck while working on an airplane assembly line. The parties reached a settlement of
27.5% permanent partial disability, which the trial court approved, and she returned to
work for the employer. However, the employee was unable to continue working due to
pain, resigned, and then filed for reconsideration of her award. The trial court found that
she was permanently and totally disabled.
On appeal, the employer argued that the statute prevented the trial court from
awarding permanent total disability in a reconsideration hearing. The Panel disagreed and
affirmed the award, which was adopted by the Tennessee Supreme Court. Id. at *6-8;
Caruthers v. Aerostructures Corp., 2006 Tenn. LEXIS 1135 (Tenn. 2006) (per curiam).
Similarly, in Princinsky v. Premier Manufacturing Support Services, No. M2009-
00207-WC-R3-WC, 2010 Tenn. LEXIS 877 (Tenn. Workers’ Comp. Panel Sept. 23,
2010), the employee settled a claim for permanent partial disability and later filed a petition
for reconsideration alleging that she was permanently and totally disabled. The trial court
agreed and awarded permanent total disability benefits. The Panel affirmed, and the
Supreme Court adopted this opinion as well. Id. at *20-21; Princinsky v. Premier Mfg.
Support Servs., 2010 Tenn. LEXIS 876 (Tenn. 2010) (per curiam).
Freeman Webb contended the terms of the settlement agreement and the statutes
preclude Mr. Oldham from seeking permanent total disability after settling the original
award. However, both the agreement and the statute are silent as to when an employee may
seek permanent total disability benefits. The settlement agreement stated that Mr. Oldham
might seek increased benefits and/or extraordinary relief at the expiration of the initial
compensation period. While a claim for permanent total disability benefits was not
expressly preserved in the settlement agreement, the claim was not expressly precluded,
either.
Similarly, the subsections of 50-6-207(3) and 50-6-242 expressly identify the date
that triggers a potential claim for increased benefits or extraordinary relief. However, no
triggering date is provided in section 50-6-207(4), and no language prevents a claim for
permanent total disability at the time claims for increased benefits and/or extraordinary
7
relief are made. Thus, the Court will not add a limitation that does not exist in the statute.
Finally, Tennessee law has long held that the Workers’ Compensation Law
classifies compensation into “four distinct classes: (a) temporary total disability, (b)
temporary partial disability, (c) permanent partial disability, and (d) permanent total
disability.” McKenzie v. Campbell & Dann Mfg. Co., 354 S.W.2d 440, 445 (Tenn. 1962).
“Each of these four kinds of disability is separate and distinct and is separately
compensated for by different methods provided by the several sub-sections of [the statute];
and each of such provisions is independent and unrelated.” Id. (Emphasis added).
That said, refusing to consider whether Mr. Oldham is now permanently and totally
disabled from his injury ignores a required independent consideration of whether he is
totally incapacitated from working. That determination requires looking at “the employee’s
skills and training, education, age, local job opportunities, and his capacity to do work at
the kinds of employment available in [the employee’s] disabled condition.” Braden v.
Mohawk Indus., Inc., 2022 TN Wrk. Comp. App. Bd. LEXIS 11, at *21-22 (Mar. 21,
2022). The Court finds nothing to prevent that determination being made, and in fact finds
that this consideration is required if Mr. Oldham is to receive compensation for the
disability caused by his injury.
Having compared the pre- and post-reform statutory language and the pre-reform
case law, the Court concludes that an employee’s recovery of the original award by trial or
settlement does not bar the employee from seeking permanent total disability at the same
time the employee petitions for increased benefits and/or extraordinary relief at the
expiration of the initial compensation period. For these reasons, the Court denies the
motion.
Findings of Fact and Conclusions of Law
Turning to the proof at the Compensation Hearing, Mr. Oldham must show by a
preponderance of the evidence that he is entitled to the requested benefits. Tenn. Code Ann.
§ 50-6-239(c)(6).
Extent of permanent disability
Mr. Oldham suffered a complex fracture of his right femur at work for Freeman
Webb. Dr. Smith, the panel-selected physician, performed two surgeries and assigned an
8% permanent impairment and permanent restrictions. The Court approved an 8%
permanent partial disability award (original award), or $18,874.17, with lifetime future
medical treatment.
8
Freeman Webb now contends that the necessity of the second surgery and
permanent restrictions were not a direct and natural consequence of the original work injury
but due to Mr. Oldham’s continued smoking.
However, both Drs. Smith and Kennedy concluded that the nonunion and need for
a second surgery were a direct and natural consequence of the original work injury. Dr.
Kennedy testified that Mr. Oldham’s fracture was unstable, had only a 50% chance of
healing from the beginning, and was the most likely cause of the nonunion. Dr. Kennedy
said Mr. Oldham’s smoking was only a minor contributing factor to the nonunion. For his
part, Dr. Smith described Mr. Oldham’s fracture as long, in three pieces, and involving a
gap between the fracture, which caused instability and complicated its healing. Dr. Smith
further testified that the nonunion “obviously was a natural consequence that occurred[.]”
Finally, Dr. Smith agreed that Mr. Oldham’s smoking was a contributing factor but said
that multiple factors led to the nonunion.
No medical proof supports Freeman Webb’s position. As the Appeals Board has
held, “[P]arties and their lawyers cannot rely solely on their own medical interpretations of
the evidence to successfully support their arguments.” Lurz v. Int’l Paper Co., 2018 TN
Wrk. Comp. App. Bd. LEXIS 8, at *17 (Feb. 14, 2018). The evidence thus establishes that
the nonunion and resulting restrictions were a direct and natural consequence of the original
work injury. Therefore, the Court must consider to what extent, if any, Mr. Oldham is
entitled to permanent disability benefits beyond those paid under the settlement agreement.
Mr. Oldham may be found permanently and totally disabled when the work injury
“totally incapacitates [him] from working at an occupation that brings an income.” Tenn.
Code Ann. § 50-6-207(4)(B).
In assessing Mr. Oldham’s permanent vocational disability, the Court can consider
several factors, including his medical impairment, job skills, education, age, training, “job
opportunities in the immediate and surrounding communities, and the availability of work
suited for an individual with that particular disability.” Braden, 2022 TN Wrk. Comp. App.
Bd. LEXIS 11, at *21. Mr. Oldham’s own assessment of his overall physical condition,
including the ability or inability to return to gainful employment, “is competent testimony
that should be considered.” Id. at *21-22. The extent of vocational disability is a question
of fact to be determined from both lay testimony and medical evidence. Id. at *22.
At the time of the hearing, Mr. Oldham is 59 years old with a high school diploma.
He has worked as a maintenance technician, production line assembler, garage door
installer, and construction worker. His physical demands ranged from light to heavy, and
his jobs were classified as unskilled to skilled. In the past, he had certifications in HVAC
and EPA. He also attended limited technical courses regarding computers.
As a result of the work injury, Mr. Oldham suffered an 8% permanent impairment.
9
Freeman Webb terminated Mr. Oldham before he reached maximum medical improvement
because its policies required termination once an employee’s absences exceed 26 weeks,
even if the absences are due to a work injury. Mr. Oldham has not worked since his injury.
Both Drs. Smith and Kennedy assigned permanent restrictions. Dr. Smith assigned
restrictions of no climbing ladders, weight limit lifting of 20 pounds occasionally, and
standing/walking limited to four hours per day. Dr. Smith later noted that Mr. Oldham
permanently needs crutches. Dr. Kennedy assigned restrictions to avoid repeated bending,
carrying or squatting, climbing ladders, working on his hands, kneeling or crawling, and
working over rough, irregular, or sloping surfaces. Dr. Kennedy further stated that Mr.
Oldham must have access to a handrail when using stairs and limited his use of stairs to
one flight per day. Dr. Kennedy said that Mr. Oldham should be able to sit at least 75% of
the time, with opportunities to change positions at least every 30 minutes. Dr. Kennedy
limited Mr. Oldham’s lifting and carrying to 10 pounds occasionally or 5 pounds
frequently.
Mr. Galloway noted that Mr. Oldham helped his wife with household chores,
vacuuming, laundry, loading the dishwasher, and cooking. He was able to stand for 15-20
minutes then needed to sit. He said he could no longer mow his yard or service his vehicles
and is no longer able to fish, camp, or ride bikes as he did before the injury.
Mr. Oldham testified that he sits 75% of the day and gets up to walk around every
20-30 minutes. He also said he is unable to stand for long periods or walk long distances.
He uses crutches occasionally when walking long distances and a cane frequently unless
he can brace himself on nearby objects.
Mr. Galloway determined that Mr. Oldham is 91% vocationally disabled based on
Dr. Smith’s restrictions and 100% vocationally disabled based on Dr. Kennedy’s. He later
added that Mr. Oldham was 100% disabled based on Dr. Smith’s July 2022 notation on the
disabled driver vehicle tag application about his permanent need for crutches. Mr.
Galloway’s opinions are unrefuted.
The Court concludes the preponderance of the evidence shows Mr. Oldham is
permanently and totally disabled from full-time work. The Court considered his medical
impairment, permanent restrictions and need for a walking aid, as well as his age,
education, lack of training in traditional sedentary jobs, and the lack of job opportunities
in the local labor market available within his restrictions.
Benefits, fees, and costs
The Court holds Mr. Oldham is entitled to weekly benefits from July 14, 2022, the
end of his initial compensation period, until he is eligible for full retirement benefits under
the Social Security Act. Tenn. Code Ann. § 50-6-207(4)(A)(i).
10
Next, the Court considers whether Mr. Oldham’s attorney is entitled to attorney’s
fees under section 50-6-226(a)(1). The Court may award attorney’s fees not to exceed 20%
of the first 450 weeks of an award of permanent total disability, provided the fees are paid
by the employee.
The Court finds that this case required significant time and expertise on the part of
both counsel. It also presents a novel legal issue. A fee of 20% is statutorily authorized and
customary in cases brought before this Court. Therefore, under sections 50-6-
207(4)(A)(ii)(a) and 50-6-207(4)(A)(iii), the Court commutes 20% of the permanent total
disability benefits for Mr. Oldham’s attorney’s fee in the amount of $54,296.10. Freeman
Webb’s attorney’s fees, as they exceed $10,000, are similarly approved.
Additionally, section 50-6-207(4)(A)(ii)(c) states:
After the total amount of the commuted lump sum is determined, the amount
of the weekly disability benefit shall be recalculated to distribute the total
remaining permanent total benefits in equal weekly installments beginning
with the date of entry of the order and terminating on the date the employee’s
disability benefits terminate pursuant to subdivision (4)(A)(i).
Mr. Oldham will be eligible for full Social Security retirement benefits on May 26,
2031, when he turns 67. The period of July 14, 2022, through May 26, 2031, is 462 weeks
and five days, which at his compensation rate totals $279,150.90. Reducing that amount
by the attorney fee of $54,296.10 yields an adjusted total benefit of $224,854.80, which
divided by 463 weeks equals an adjusted weekly compensation rate of $485.65. Freeman
Webb shall pay Mr. Oldham’s permanent total disability benefits at this rate. It shall also
pay accrued benefits for the period of July 14, 2022, through the entry of this order in a
lump sum.
Finally, Mr. Oldham seeks payment of his discretionary costs under Tennessee
Rules of Civil Procedure 54.04(2). Specifically, he requests reimbursement of these
litigation expenses totaling $4,921.35:
• Court Reporter Costs for John Oldham and Tina McKeehan transcripts
• Expert Deposition Fee for Dr. William Kennedy
• Court Reporter Fee for Dr. Kennedy transcript
• Court Reporter Fee for Dr. Smith transcript
• Expert Trial Appearance Fee for Mr. Galloway.
Freeman Webb objects to the costs to the extent they were incurred pursuing
permanent total disability benefits.
11
Section 50-6-239(c)(8) authorizes discretionary costs including reasonable fees for
depositions of medical experts against the employer upon adjudication of the employee’s
claim as compensable. So does Tennessee Rules of Civil Procedure 54.04(2).
Here, the Court finds that Mr. Oldham is entitled to discretionary costs under rule
54.04(2) and section 50-6-239 for his court reporter’s fees for the deposition transcripts of
the fact and expert witnesses and the testimony fees of his vocational expert. Those
expenses were incurred in his pursuit of permanent disability benefits, including the
permanent total benefits awarded. Freeman Webb shall reimburse Mr. Oldham’s
discretionary costs in the amount of $4,921.35.
IT IS, THEREFORE, ORDERED as follows:
1. Freeman Webb shall continue to provide medical care for Mr. Oldham’s injuries as
required by Tennessee Code Annotated section 50-6-204. Dr. Smith remains the
authorized physician.
2. Freeman Webb shall pay Mr. Oldham a lump sum of 100 weeks of benefits and six
days, totaling $48,565.00, in satisfaction of the benefits accruing between July 14,
2022, and the date of entry of this order.
3. Freeman Webb shall pay ongoing permanent total disability benefits weekly or bi-
weekly until Mr. Oldham is eligible for full Old Age Social Security retirement
benefits, and his permanent total disability award is paid in full.
4. Mr. Oldham’s counsel shall be paid a 20% attorney fee, or $54,296.10, in a lump
sum.
5. Freeman Webb shall pay Mr. Oldham’s discretionary costs of $4,921.35.
6. Freeman Webb shall pay the $150.00 filing fee within five business days of entry
of this order, for which execution may issue if necessary.
7. Freeman Webb shall file a Statistical Data Form (SD-2) within ten business days of
this order becoming final.
8. Unless appealed, this order becomes final in 30 days.
ENTERED June 21, 2024.
_____________________________________
JUDGE PAMELA B. JOHNSON
Court of Workers’ Compensation Claims
12
APPENDIX
Exhibits:
1. Dr. Kennedy deposition transcript with attachments
2. Dr. Smith deposition transcript with attachments
3. Mr. Galloway vocational report
4. Ms. McKeehan deposition transcript
5. Video footage
6. Indexed Medical Records
7. Original settlement documents
8. Mr. Galloway curriculum vitae
CERTIFICATE OF SERVICE
I certify that a copy of the order was sent as shown on June 21, 2024.
Name Mail Email Service sent to:
Andrew Roberto, X aroberto@brownandroberto.com
Employee’s Attorney
A. Allen Grant, X agrant@eraclides.com
Benjamin Norris, bnorris@eraclides.com
Employer’s Attorneys
____________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
13
Right to Appeal:
If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation
Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims before the expiration of the deadline.
If the order being appealed is “expedited” (also called “interlocutory”), or if the
order does not dispose of the case in its entirety, the notice of appeal must be filed
within seven (7) business days of the date the order was filed.
If the order being appealed is a “Compensation Order,” or if it resolves all issues
in the case, the notice of appeal must be filed within thirty (30) calendar days of
the date the Compensation Order was filed.
When filing the Notice of Appeal, you must serve a copy on 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 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 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 Indigency will result in dismissal of your appeal.
3. You are responsible for ensuring a complete record is presented on appeal. If no court
reporter was present at the hearing, you may request from the Court Clerk the audio
recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your
appeal, which the Appeals Board has emphasized is important for a meaningful review of
the case, a licensed court reporter must prepare the transcript, and you must file it with the
Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,
and you will receive notice once it has been submitted. For deadlines related to the filing of
transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the
Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)
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.
If neither party timely files an appeal with the Appeals Board, the Court Order
becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory
orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.