The opinion
FILED
Dec 05, 2024
07:37 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
MICHELLE HUDSON, ) Docket No. 2023-02-5326
Employee, )
v. )
FRESENIUS MEDICAL CARE )
HOLDINGS, LLC, ) State File No. 119524-2019
Employer, )
And )
AMERICAN CASUALTY )
COMPANY OF READING ) Judge Brian K. Addington
PENNSYLVANIA, )
Carrier.
COMPENSATION ORDER GRANTING EMPLOYER’S MOTION FOR
SUMMARY JUDGMENT
Both parties filed motions for summary judgment, which the Court heard on
December 2, 2024. The issue is Ms. Hudson’s eligibility for increased benefits. Ms.
Hudson argues that, based on her average weekly wages, she made less money at the
expiration of her initial compensation period. Fresenius argues that she made a higher rate
of pay at the end of her initial period. For the reasons below, the Court holds Fresenius is
entitled to summary judgment.
Claim History
Both parties filed statements of undisputed material facts with citations to the record
in compliance with Rule 56.03 of the Tennessee Rules of Civil Procedure. They supported
their facts with affidavits.
Ms. Hudson’s statement of undisputed material facts included:
• She filed a petition for benefit determination requesting an increased award.
• She was hired by Fresenius Kidney Care for an hourly wage of $36.41 in
2022.
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• Her wages for the 52-week period after reaching maximum medical
improvement totaled $76,722.69. Her average weekly wages through this
period were $1,475.43.
• Her average weekly wage before her injury was $2,272.54.
• She does not make 70% of her pre-injury wages, as her average weekly
wages were $1,475.43 post-injury, and her pre-injury wages were $2,272.54
per week, which is 64.92% of her pre-injury earnings.
Fresenius’s statement of undisputed facts reads in part:
• Employee’s hourly rate of pay before her injury was $34.06.
• Employee’s hourly rate of pay after her injury was $36.41.
• The employee’s hourly rate of pay remained at $36.41 when she filed her
second petition.
Ms. Hudson argues that “wages” in Tennessee Code Annotated Section 50-6-207(B)
(2024) is not defined nor addressed by the Courts. She argues “wages” means more than
rate of pay and that it means average weekly wage. Comparing her average weekly wage
before her injury and when her initial compensation period ended, she was making less
than 100% at the time of her injury.
Fresenius argues that “wages” have been consistently defined by the courts to mean
rate of pay. It asserted that wages do not mean average weekly wage, which includes
overtime.
Law and Analysis
Summary Judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show 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 (2024).
Either party must do one of two things to prevail: (1) submit affirmative evidence
that negates an essential element of the other’s claim, or (2) demonstrate that the evidence
is insufficient to establish an essential element of the claim. 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).
Here, Ms. Hudson contends she is entitled to increased benefits under section 50-6-
207(3)(B). Fresenius disagrees. To be eligible for those benefits, Ms. Hudson must prove
her wages were less than 100% of the wages she received from the employer on the date
of her injury.
Since the term “wages” is not defined in section 207(3)(B), the Court considers
relevant case law. In Marshall v. Mueller Company, 2016 TN Wrk. Comp. App. Bd. Lexis
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74, at *22-25 (July 11, 2016), the Appeals Board concluded the term “wage” applied to the
term “wages” in the section in question. It further stated that wage means the hourly rate
of pay for an employee who is compensated on an hourly basis.
The parties agree that Ms. Hudson’s hourly rate of pay before the injury was $34.06
and $36.41 when her initial compensation period expired. Considering Marshall, Ms.
Hudson was making an hourly rate greater than her pre-injury hourly rate. Because Ms.
Hudson did not point to any specific facts or evidence that her hourly rate of pay was less
than her pre-injury rate of pay, she did not show a genuine issue of material fact for trial.
The Court holds Fresenius is entitled to summary judgment as a matter of law.
IT IS, THEREFORE ORDERED as follows:
1. Fresenius’s motion for summary judgment is granted, and Ms. Hudson’s claim for
increased benefits is dismissed with prejudice to its refiling.
2. Unless appealed, this order shall become final 30 days after entry.
3. The Court taxes the $150.00 filing fee to Fresenius under Tennessee Compilation
Rules and Regulations 0800-02021-.06 (2023), payable to the clerk within five days
of this order becoming final.
ENTERED December 5, 2024.
Brian K. Addington
______________________________________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent on December 5, 2024.
Name Certified Fax Email Service sent to:
David Darnell, X david.darnell@deangreer.com
Employee’s Attorney cathy.banks@deangreer.com
Brent Moore, X bmoore@otalekelley.com
Employer’s Attorney ccaruso@ortalekelley.com
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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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.
¾ 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.
¾ 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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board;ĐŚĞĐŬŽŶĞŽƌŵŽƌĞĂƉƉůŝĐĂďůĞďŽdžĞƐĂŶĚŝŶĐůƵĚĞƚŚĞĚĂƚĞĨŝůĞͲ
ƐƚĂŵƉĞĚŽŶƚŚĞĨŝƌƐƚƉĂŐĞŽĨƚŚĞŽƌĚĞƌ;ƐͿďĞŝŶŐĂƉƉĞĂůĞĚͿ͗
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ܆Employer ܆Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
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Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ܆Employer ܆Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
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