The opinion
FILED
Aug 01, 2025
03:29 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
JERRY R. BURKES, ) Docket No. 2023-03-8195
Employee, )
v. )
SYSCO CORPORATION, ) State File No. 7260-2023
Employer, )
And )
ZURICH AMERICAN INSURANCE ) Judge Lisa A. Lowe
COMPANY, )
Carrier. )
COMPENSATION ORDER
Jerry Burkes sustained a work-related left-knee injury. He previously settled his
original award and now seeks additional permanent disability benefits. For the reasons
below, the Court holds that Mr. Burkes is entitled to increased benefits.
History of Claim
On January 26, 2023, Mr. Burkes slipped and fell, injuring his left knee. Dr.
Michael McCollum diagnosed partial medial and lateral meniscus tears and grade 3
osteoarthritis. Mr. Burkes underwent surgery and suffered from deep vein thrombosis
afterward. Dr. McCollum gave him a 10% impairment rating.
Other than a short period where Dr. McCollum took Mr. Burkes off work
completely, he assigned light-duty restrictions from February through August 2023. At the
last visit on August 3, Dr. McCollum placed Mr. Burkes at maximum medical
improvement but noted, “I am going to keep him at light duty for the time being.” He
returned to work without restrictions on August 24. Mr. Burkes resigned his position
sometime that August, but he was unsure whether it was during the light-duty or full-duty
timeframe. Dr. McCollum’s records mention Mr. Burkes’s concerns about his ability to
perform his job duties several times.
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The Court approved the initial award settlement on February 29, 2024. The
agreement established that Mr. Burkes suffered a compensable left-knee injury; his initial
award was $30,316.72; his initial compensation period would expire on July 4, 2024; and
Sysco will pay for reasonable, necessary, and related treatment.
After the expiration of Mr. Burkes’s initial compensation period, he filed a petition
for benefit determination seeking additional permanent disability benefits.
At the hearing, Mr. Burkes testified that he knew that he could not perform his
regular duties due to the physical nature of his job. Because of that, he felt he had to resign
from his employment with Sysco. He ended up moving to North Carolina to be with family
and ultimately secured a job with Coastal Enterprises, earning less than pre-injury. Sysco
authorized treatment with Dr. Bradley in North Carolina, and he performed a second
surgery. Mr. Burkes is currently unemployed.
Mr. Burkes said that he asked Dr. McCollum to complete a physician’s certification
form to state that he was unable to return to his pre-injury employment, but Dr. McCollum
did not respond.
Mr. Burkes testified that he was in pain for two and a half years because Dr.
McCollum did not fix his knee and he had to have a second surgery. He explained how
the injury has affected his activities and relationships with his wife and two sons. They
testified as well about the changes in Mr. Burkes after the injury. He also said that he
suffered from a hiatal hernia that he relates to the medication Dr. McCollum prescribed.
Mr. Burkes asked the Court to award him extraordinary relief of 275 weeks of benefits.
Sysco argued that the only issue before the Court is Mr. Burkes’s entitlement to
increased benefits. It asserted that Mr. Burkes voluntarily resigned his position, so he is
not entitled to increased benefits. Sysco also pointed out that on his Coastal Enterprise
application, he answered “no” that he had ever had a knee injury, “no” that he required
accommodations, and wrote that he could comfortably lift 40 pounds.1 Further, it pointed
out that Mr. Burkes is not eligible for extraordinary relief because he did not file a
physician’s certification form, and he is not entitled to hernia benefits because it was not
part of the underlying settlement.
Findings of Fact and Conclusions of Law
Mr. Burkes has the burden of proof on all essential elements of his claim. Scott v.
Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18,
2015). He must prove by a preponderance of the evidence that he is entitled to the
requested benefits. Tenn. Code Ann. § 50-6-239(c)(6) (2024).
1
Mr. Burkes explained that he answered those questions that way because he had to get a job to support
his family.
2
Increased Benefits
Tennessee Code Annotated section 50-6-207(3)(B) states that if, at the end of the
initial period of compensation, the employee has not returned to work for any employer at
an equal or greater rate of pay as before the injury, then the employee qualifies for a
resulting award equal to 1.35 times the original award. A trial court can further increase
the resulting award if, among other considerations, the employee is over age 40 when the
initial period of compensation ended.
However, the statute also states that “under no circumstances shall an employee be
entitled to additional benefits” when the “loss of employment is due to the employee’s
voluntary resignation,” provided that the resignation “does not result from the work-related
disability.” § 50-6-207(3)(D)(i).
Examining the circumstances of his resignation, the Court finds that it was a result
of his work injury. On August 3, 2023, Dr. McCollum “kept [Mr. Burkes] on light duty
for the time being.” Mr. Burkes knew that meant Dr. McCollum would ultimately return
him to full-duty work in the future. Without seeing him again, Dr. McCollum released him
to full-duty work on August 24, 2023. Mr. Burkes credibly testified about the pain and
condition of his knee and his inability to return to full duty. The medical records reflect
this was Mr. Burkes’s concern throughout treatment. Further, Mr. Burkes ultimately
required a second surgery, since the first surgery did not alleviate his symptoms.
Therefore, Mr. Burkes is entitled to $18,796.33 in increased benefits for his inability
to return to work at the same or better pay and being over age 40.
Extraordinary Benefits
If an employee qualifies for increased benefits, but the trial court finds the
employee’s case to be “extraordinary” under section 50-6-242(a)(2) and concludes that
limiting the injured worker to the increased benefits would be inequitable considering the
totality of the circumstances, the trial court can award benefits not to exceed 275 weeks.
However additional requirements exist for eligibility, including that the employee’s
impairment rating is 10% or higher, and the authorized treating physician certifies on a
form provided by the Bureau that the employee “no longer has the ability to perform the
employee’s pre-injury occupation” due to “permanent restrictions on activity” caused by
the work accident. Id.
Here, Mr. Burkes does not qualify for extraordinary benefits. Although Dr.
McCollum assigned him a 10% permanent impairment rating and he is not employed, Dr.
McCollum did not complete a physician certification form. Therefore, Mr. Burkes has not
met the statutory requirements for extraordinary benefits and is not entitled to an award
over increased benefits.
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Post-hearing motion
After the compensation hearing, Mr. Burkes moved to supplement the record and
submit post-hearing argument, and Sysco moved to strike.
Specifically, Mr. Burkes asked the Court to consider additional information about
his hernia, indemnity benefits, sale of his home at a loss, and AMA Guides for gait
derangement, among other information. Sysco moved to strike the motion because post-
hearing briefs are only permitted with the judge’s advance approval. Tenn. Comp. R. &
Regs. 0800-02-21-.20(2) (2023).
As the Court previously explained, since Mr. Burkes settled his original award, it is
limited to address only whether he is entitled to additional permanent disability benefits
for his work-related left-knee injury. The information Mr. Burkes sought to supplement
involves issues outside additional permanent disability benefits. Thus, the Court denies
Mr. Burkes’s motion to supplement the record and grants Sysco’s motion to strike.
IT IS, THEREFORE, ORDERED as follows:
1. Sysco Corporation shall continue to provide reasonable, necessary and related
medical care for Mr. Burkes’s work-related left-knee injury under Tennessee Code
Annotated section 50-6-204.
2. Sysco shall pay Mr. Burkes increased benefits of $18,796.36 for failure to return to
pre-injury wages and being over 40 years old.
3. Sysco Corporation shall pay the $150.00 filing fee within five business days of entry
of this order, for which execution may issue.
4. Sysco Corporation shall file a Statistical Data Form (SD-2) within 10 business days
of this order becoming final.
5. Unless appealed, this Order shall become final 30 calendar days after entry.
ENTERED August 1, 2025.
__________________________________
JUDGE LISA A. LOWE
Court of Workers’ Compensation Claims
APPENDIX
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Exhibits:
1. Emails between Mr. Burkes and Attorney Drobney
2. Mr. Burkes’s 2023-2025 calendar entries
3. Free Tax USA
4. Coastal Enterprises statement of days worked and earnings
5. February 29, 2024 settlement documents
6. Mr. Burkes’s 2024 W-2
7. North Carolina workers’ compensation claim documents
8. AMA Guides
9. Email from Dr. Bradley
10. Medial records from Carolina East Physicians
11. Medical records from Coastal Radiology Associates
12. Medical records from EmergeOrtho
13. Medical records from JCMC Swansboro Children’s and Family Care
14. Medical records from Johnston Pain Management
15. Medical records from North Carolina Diagnostic Imaging
16. Medical records from Novant Health
17. Medical records from Onslow Memorial Hospital
18. Medical records from Ortho Tennessee
19. Medical records from University of Tennessee Medical Center
20. Medical records from WH Occupational Medical Center
21. Medical expenses from Carolina East Physicians
22. Medical expenses from Delaney Radiologists
23. Medical expenses from Eastern Carolina Emergency Physicians
24. Medical expenses from EmergeOrtho
25. Medical expenses from Novant Health
26. Medical expenses from Onslow Memorial Hospital
27. TCAT certificates and photo
28. Medical questionnaire of Coastal Enterprises
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CERTIFICATE OF SERVICE
I certify that a copy of the order was sent as shown on August 1, 2025.
Name Mail Email Service sent to:
Jerry Burkes, X X 212 Volaris Lane
Employee Hubert, NC 28539
burkes.jerry5@gmail.com
David Drobny X ddrobny@manierherod.com
Employer’s Attorney
_____________________________________
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.
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.