The opinion
1\llay 10, 2016
1N COlJRT OF
WORKERS' COl\.IPENSATION
CLAThlS
Time: 2:33 Pl\1
TENNESSEE BUREAU OF WORKERS' COMPENSATION
COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
Bonnie Brown, ) Docket No.: 2016-01-0139
Employee, )
v. ) State File No.: 58807-2015
Whole Foods Markets, Inc., )
Employer, ) Judge Thomas Wyatt
And )
Ace American Ins. Co., )
Carrier. )
ORDER DENYING EXPEDITED HEARING REQUEST FOR DISCOVERY
(Review of the File)
This case came before the undersigned Workers' Compensation Judge on May 6,
20 16, upon the Request for Expedited Hearing filed by the employee, Bonnie Brown,
pursuant to Tennessee Code Annotated section 50-6-239 (2015). Ms. Brown requested
the Court render its decision based upon a review of the file without an evidentiary
hearing. (T .R. 3 at 1.)
Ms. Brown filed her Request for Expedited Hearing on April 12, 2016,
accompanied by the affidavit of her attorney, Ronald J. Berke. (T.R. 3, 4.) Mr. Berke's
affidavit states, "I have filed a Request for an Expedited Hearing regarding my [client's]
Petition for Benefit Determination request seeking discovery documents in this matter."
(T.R. 4 at 1.) Later in his affidavit, Mr. Berke avers that the Court need not conduct a
hearing on Ms. Brown's Request for Expedited Hearing because it "pertains solely to
discovery issues." I d. For the reasons set forth below, the Court finds Ms. Brown cannot
obtain the relief requested through a Request for Expedited Hearing.
History of Claim
Ms. Brown is a fifty-seven-year-old resident of Whitfield County, Georgia. (T.R.
1 at 1.) On February 29, 2016, she filed a Petition for Benefit Determination (PBD)
alleging she sustained a compensable spinal injury on July 22, 2015, when she picked up
a heavy box in the course and scope of her employment as a food preparer for the
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employer, Whole Foods Markets, Inc. (Whole Foods). (T.R. 1-2.) In her PBD, Ms.
Brown described the disputed issues between the parties as "Employer has not provided
Employee a proper panel of back specialists/neurosurgeons. Employer has also failed to
provide Employee's counsel with requested documents." (T.R. 1 at 1.)
The mediating specialist assigned to the claim issued a Dispute Certification
Notice on April 7, 2016, upon the failure to achieve a mediated resolution of the parties'
disputes (T.R. 2.) On April 12, 2016, Ms. Brown filed her Request for Expedited
Hearing accompanied by the affidavit of her attorney, Ronald J. Berke. (T.R. 3, 4.) Mr.
Berke's affidavit states that Ms. Brown's Request for Expedited Hearing addresses only
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discovery issues. Ms. Brown asks the Court to decide the undesignated discovery issues
upon a review of the file without an evidentiary hearing. Whole Foods did not respond to
Ms. Brown' s Request for Expedited Hearing. 2
Findings of Fact and Conclusions of Law
The Tennessee Workers' Compensation Law does not permit Ms. Brown to
address discovery disputes through a Request for Expedited Hearing. Tennessee Code
Annotated section 50-6-239(d)(l) (2015) permits a workers ' compensation judge to 'hear
disputes over issues provided in the dispute certification notice concerning the provision
of temporary disability or medical benefits on an expedited basis[.]" (Emphasis added.)
Alternatively, Section 50-6-239(e) (2015) provides that "[a]ll discovery disputes ... shall
be adjudicated upon the review of written motions and affidavits."
Tennessee Code Annotated section 50-6-239(c)(l) (2015) provides that "[t]he ...
Tennessee Rules of Civil Procedure shall govern proceedings at all hearings before a
workers' compensation judge unless an alternate procedural ... rule has been adopted by
the administrator." Both the Rules of Civil Procedure and the Bureau's Mediation and
Hearing Rules provide for discovery in a workers' compensation claim by the use of
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interrogatorie 3 and depositions. The Rules of Civil Procedure provide for the use of
requests for production of documents and requests for admissions, among other discovery
devices.
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Mr. Berke's affidavit did not identify the records or information Ms. Brown seeks, nor does it state whether he
previously propounded discovery on Whole Foods seeking the requested records/information. (Ex. 4.)
2
At the time the Court issued this order, no attorney had made an appearance on behalf of Whole Foods.
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Tennessee Compilation Rules and Regulations 0800-02-21-.16(4)(b) (2015) provides that a party is not required to
answer interrogatories until after the Court schedules discovery guidelines in an Initial (Scheduling) Order.
However, the rule also gives the Court authority to order a party to answer interrogatories at an earlier stage of the
claim. The Court urges the parties to agree to the reasonable exchange of written discovery without the Court's
intervention, but will address any discovery motion filed by a party.
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The parties should review Tennessee Compilation Rules and Regulations 0800-02-2 I -.16(5) pertaining to the use
of depositions for discovery in a workers' compensation claim.
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Ms. Brown should engage in the discovery procedures available under the
applicable rules to obtain the information she seeks. If Whole Foods fails to provide
appropriate responses to discovery requests that Ms. Brown properly propounded under
applicable procedural rules, she may file a motion asking the court to compel discovery.
Upon the filing of a discovery motion, the Court will address the issues between the
parties within the parameters of the applicable procedural rules.
IT IS, THEREFORE, ORDERED:
1. Ms. Brown's Request for Expedited Hearing is denied because she limited
the relief sought therein to an attempt to obtain discovery.
2. This matter is set for a Status Conference on June 7, 2016, at 9:00 a.m.
Eastern Time. The parties shall call in to 855-747-1721 (toll-free) or 615-
741-3061 to participate.
ENTERED this the lOth day of ]2~~
Thomas Wyatt, Judge
Court of Workers' Compensation Claims
Status Conference:
A Status Conference has been set with Judge Thomas Wyatt, Court of
Workers' Compensation Claims. You must call855-747-1721 (toll-free) or 615-741-
3061 to participate in the Initial Hearing.
Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.
Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
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2. Pile the completed form with the Court Clerk within seven business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited 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 parties, 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 ten calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited 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.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within five business days of the filing of the appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order should include: (1) a statement summarizing the facts of the
case from the evidence admitted during the expedited hearing; (2) a statement
summarizing the disposition of the case as a result of the expedited hearing; (3) a
statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.
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Technical record:
1. Petition for Benefit Determination, filed February 29, 2016;
2. Dispute Certification Notice filed April 7, 2016;
3. Request for Expedited Hearing, filed April 12, 2016; and
4. Affidavit of Ronald J. Berke, accompanying filing of Request for Expedited Hearing
on April12, 2016.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 1Oth day
ofMay, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Ronald J. Berke, X Ronnie(G),berkcanys .corn;
Attorney margo(a1berkeattvs.com
Whole Foods Markets, X Sheila_dargan@gbtpa.com
Inc., c/o Sheila Dargan
claim representative fo
Gallagher-Bassett
m, Clerk of Court
Court o orkers' Compensation Claims
WC.CourtClerk@tn.gov
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