The opinion
FILED
Dec 23, 2024
11:50 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
MARK McCLANAHAN, ) Docket No. 2019-07-0500
Employee, )
v. ) State File No. 80482-2019
BOBBY TUCKER, )
Uninsured Employer. ) Judge Allen Phillips
)
AMENDED COMPENSATION ORDER
The Court became aware of clerical errors in its Compensation Order entered on
September 3, 2020. Specifically, that order included several references to an incorrect date
of injury. Thus, under Tennessee Rules of Civil Procedure 60.01 (2024), the Court amends
the Compensation Order to reflect the correct date of injury as July 11, 2019.
History of Claim
On July 11, a drill severely twisted Mr. McClanahan’s right wrist when he worked
for Mr. Tucker as an electrician. After reporting the injury, he learned Mr. Tucker was
uninsured.
Mr. McClanahan sought medical treatment on his own from Dr. Timothy Sweo,
who diagnosed a torn wrist ligament and ultimately performed surgery to repair it. During
follow-up treatment in September, Dr. Sweo placed work restrictions and stated Mr.
McClanahan could not use his hand for “physical labor for several more months.”
However, on October 16, Dr. Sweo observed “a lot of grease and dirt” on Mr.
McClanahan’s right hand and recorded he was “using it for work.” On November 27, Dr.
Sweo released Mr. McClanahan “to return to activities as tolerated.”
Mr. McClanahan filed a Petition for Benefit Determination requesting medical and
temporary total disability benefits (TTD). Specifically, he wanted payment for ongoing
treatment with Dr. Sweo and TTD from the date of injury through November 27, when Dr.
Sweo released him. After the PBD filing, a Compliance Investigator of the Bureau of
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Workers’ Compensation completed an Investigative Report in which he determined that:
Mr. McClanahan was an employee of Mr. Tucker; Mr. Tucker was uninsured on the date
of the accident; Mr. McClanahan was a Tennessee resident; and he provided notice of his
injury to the Bureau within sixty days.
In March 2020, the Court held an Expedited Hearing and found Mr. McClanahan
would likely prevail at trial regarding his request for medical benefits. The Court
designated Dr. Sweo as the authorized treating physician. 1 However, the Court denied Mr.
McClanahan’s TTD request because a pay stub from Mr. Tucker suggested he earned
wages during the period he claimed to be disabled, and he told Dr. Sweo that he used his
hand for work before being released.
At the Compensation Hearing, Mr. McClanahan explained why a pay stub
documented “wages” for the period of July 29 to August 2, 2019. Namely, he said that he
did not work during that period, but instead Mr. Tucker voluntarily paid him his regular
earnings of $720 per week by agreement. Mr. Tucker confirmed that agreement in his
testimony. As to Dr. Sweo’s comment in October about him working, Mr. McClanahan
explained without contravention that he attempted to perform some electrical work on a
casual basis, but that he was unable to complete the job. He arranged for someone else to
complete it and was not paid anything for the attempt.
Regarding his current condition, Mr. McClanahan said he was at “40%” strength in
his arm, and his inability to use it affected both his work and personal lives. He has tried
odd jobs but has not held steady work since his injury. He said Dr. Sweo told him he “was
as good as he would get,” but the doctor added he might require a wrist fusion in the future.
Mr. McClanahan offered a Standard Form Medical Report for Industrial Injuries (C-32),
in which Dr. Sweo noted the injury was primarily related to the drill incident and to which
he attached a Form C30A assessing a fourteen percent impairment to the body as a whole
under the American Medical Association Guidelines to the Evaluation of Permanent
Impairment, 6th Edition.
Mr. McClanahan requested future medical benefits, TTD benefits from July 11
through November 27, and permanent partial disability benefits based on Dr. Sweo’s
rating. He contended his compensation rate was $480 per week based on weekly earnings
of $720.
In his testimony, Mr. Tucker questioned the details of Mr. McClanahan’s injury, the
quality of his work, and his purported lack of punctuality. Further, Mr. McClanahan
admitted on cross-examination that he had performed vinyl siding installation since his
release from Dr. Sweo. However, Mr. Tucker offered nothing that contradicted Dr. Sweo’s
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Mr. McClanahan’s medical bills were paid by private insurance, and he did not request reimbursement of
the bills.
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causation opinion, the impairment rating, the time Mr. McClanahan was off work, or the
compensation rate.
Findings of Fact and Conclusions of Law
Mr. McClanahan bears the burden of proof on all elements of his claim. Scott v.
Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18,
2015). At a Compensation Hearing, he must establish those elements by a preponderance
of the evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2019).
As a threshold matter, Mr. McClanahan must establish that his injury resulted from
a specific incident arising primarily out of his employment. Tenn. Code Ann. § 50-6-
102(14)(A). An injury “arises primarily out of” the employment” only if it contributed
more than fifty percent in causing the injury to a reasonable degree of medical certainty.
Tenn. Code Ann. § 50-6-102(14)(B) and (C). Here, Mr. McClanahan established his injury
resulted from a specific incident, the drill twisting his arm, by both his uncontroverted
testimony and Dr. Sweo’s C-32. Further, Dr. Sweo’s C-32 established that the injury arose
primarily out of the employment to a reasonable degree of medical certainty. Having found
the compensability of his claim by a preponderance of the evidence, the Court will address
each requested benefit in turn.
First, the Court considers Mr. McClanahan’s request for medical benefits.
Tennessee Code Annotated section 50-6-204(a)(1)(A) requires that the employer furnish
medical treatment made reasonably necessary by an injury. Because his injury is
compensable, the Court holds that Mr. Tucker is responsible for Mr. McClanahan’s future
medical treatment and designates Dr. Sweo as the authorized treating physician.
Second, Mr. McClanahan may be eligible for temporary disability benefits if he
shows the following: (1) he became disabled from working due to a compensable injury;
(2) there is a causal connection between his injury and his inability to work; and (3) he
established the duration of the period of disability. Jones v. Crencor Leasing and Sales,
2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). As at the Expedited
Hearing, Mr. McClanahan requested TTD for the period of July 11 to November 27.
However, unlike at the Expedited Hearing, he explained the facts behind the pay stub
suggesting his receipt of wages during that period. Specifically, he said Mr. Tucker paid
him even though he did not work; Mr. Tucker agreed. Further, Mr. McClanahan explained,
without contravention, that he tried working in October but earned no wages. Thus, the
Court holds Mr. McClanahan is entitled to TTD from July 11 through November 27, 2019,
because he established Dr. Sweo restricted his ability to work due to an injury causally
connected to his work. The period of total disability equals 19 weeks and six days and
entitles Mr. McClanahan to TTD of $9,528. (19.85 weeks x $480).
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Third, the Court holds Mr. McClanahan is entitled to an award of permanent partial
disability benefits. He established by Dr. Sweo’s C-32 and attached C-30A that he
sustained a fourteen percent permanent partial impairment to the body as a whole. In
Baumgardner v. United Parcel Serv., 2017 TN Wrk. Comp. App. Bd. LEXIS 63, at *10-
11 (Oct. 18, 2017), the Appeals Board noted that “the method of calculating permanent
partial disability as set forth in Tennessee Code Annotated section 50-6-207 is dependent
on the existence of a permanent medical impairment rating,” and that rating is the “statutory
mechanism” for calculation of the amount of permanent partial disability.
Here, under section 207(3)(A), Dr. Sweo’s fourteen percent impairment to the body
results in an original award of sixty-three weeks of benefits or $30,240. (450 weeks x 14%
x $480). The initial period of compensation will not end until February 10, 2021. Because
Dr. Sweo placed Mr. McClanahan at maximum medical improvement on November 27,
2019, the accrued benefits from that date through September 4, 2020, a period of forty
weeks and three days, are payable in a lump sum of $19,401.60. The remaining twenty-
two weeks and four days of permanent disability benefits are payable periodically in equal
biweekly payments until paid in full.
Finally, because Mr. Tucker was uninsured on July 11, 2019, the Court considers
whether Mr. McClanahan is eligible to recover from the Bureau’s Uninsured Employer’s
Fund. The Bureau has discretion to pay limited medical and TTD benefits to Mr.
McClanahan if he establishes several criteria. The Court finds the following:
• Mr. McClanahan worked for Mr. Tucker, an uninsured employer, and Mr.
McClanahan suffered an injury arising primarily out of and in the course and scope
of employment on July 11, 2019.
• He was a Tennessee resident on that date, and he provided notice to the Bureau of
the injury and Mr. Tucker’s failure to provide workers’ compensation insurance
within sixty days of his injury.
• This order serves as a judgment for workers’ compensation benefits against Mr.
Tucker for the injury in question.
See Tenn. Code Ann.§ 50-6-801(d). The Court holds Mr. McClanahan established the
required criteria.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Tucker shall provide Mr. McClanahan continuing medical treatment under
Tennessee Code Annotated section 50-6-204(a)(1)(A). Dr. Sweo is designated the
authorized physician.
2. Mr. Tucker shall pay Mr. McClanahan temporary total disability benefits of $9,528
for the period of July 11, 2019, through November 27, 2020.
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3. Mr. Tucker shall pay Mr. McClanahan benefits for a fourteen-percent permanent
partial disability in the amount of $30,240. Of that amount, $19,401.60 is payable
in a lump sum for the period of November 27, 2019, through September 4, 2020,
with the balance of $10,838.40, to be paid in equal biweekly installments of $960
until paid in full. Mr. McClanahan maintains the right to file a claim for increased
benefits at the end of the original benefit period if he does not return to work at the
same or greater wages earned at the time of injury.
4. The Court taxes the $150.00 filing fee to Mr. Tucker, to be paid to the Court Clerk
under Tennessee Compilation Rules and Regulations 0800-02-21-.06 if not already
paid.
5. The original Compensation Order was not appealed and became final thirty days
after its entry on September 3, 2020.
ENTERED December 23, 2024, nunc pro tunc September 3, 2020.
______________________________________
JUDGE ALLEN PHILLIPS
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Collective Medical Records
2. C-32 Form of Dr. Sweo with attached C-30A Form
3. Mr. McClanahan’s paystub from Mr. Tucker
4. Investigative Report of Bureau of Workers’ Compensation
Technical record:
1. Petition for Benefit Determination
2. Request for Expedited Hearing with employee’s affidavit
3. Expedited Hearing Order including Technical Record and Exhibits
4. Scheduling Order
5. Post-Discovery Dispute Certification Notice
6. Employee’s Pre-Compensation Hearing Statement
7. Order Setting Status Hearing (July 29, 2020)
8. Order Setting Compensation Hearing (August 18, 2020)
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CERTIFICATE OF SERVICE
I certify that a copy of this Amended Compensation Order was sent as indicated on
December 23, 2024.
Name Via Mail Via Service Sent To:
C. Mark Donahoe, Attorney for X Cmd@donahoefirm.com
Employee haley@donahoefirm.com
Bobby Tucker, Employer X 732 Sanders Bluff Rd.,
Humboldt, TN 38343
Uninsured Employers Fund X LaShawn.Pender@tn.gov
______________________________________
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]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082