The opinion
FILED
June 15, 2016
TENNESSEE
WORKIERS' COMPENSATION
APPEALS BOARD
Time: 10:06 A.M.
TENNESSEE BUREAU OF WORKERS' COMPENSATION
WORKERS' COMPENSATION APPEALS BOARD
Robert Parrish ) Docket No. 2015-07-0467
)
v. )
) State File No. 54013-2015
Digit Dirt Worx, Inc., et al. )
)
)
Appeal from the Court of Workers' )
Compensation Claims )
Allen Phillips, Judge )
Affirmed and Remanded - June 15, 2016
In this interlocutory appeal, the employee alleges the employer miscalculated his average
weekly wage by failing to exclude from the calculation certain days on which the
employee claims he did not work. The trial court conducted a review of the file and
concluded the employee did not come forward with sufficient evidence from which it
could determine he would likely prevail on this issue at a hearing on the merits. As a
result, the trial court denied the employee's request to award additional temporary
disability benefits and the employee appealed. Discerning no error, we affirm and
remand the case.
Judge Timothy W. Conner delivered the opinion of the Appeals Board, in which Judge
Marshall L. Davidson, III, and Judge David F. Hensley joined.
Robert Parrish, Weaverville, North Carolina, employee-appellant, prose
Allen Grant, Nashville, Tennessee, for the employer-appellee, Digit Dirt Worx
Opinion
Robert Parrish ("Employee") reported sustaining a work-related injury on July 10,
2015, when he was struck by a large drill press as it was being moved by a forklift. The
employer, Digit Dirt Worx, Inc. ("Employer"), initiated temporary disability benefits at a
compensation rate based on its calculation of Employee's average weekly wage. On
December 18, 2015, Employee filed a Petition for Benefit Determination, seeking
temporary disability benefits at a higher weekly compensation rate. Following the
issuance of a dispute certification notice, which listed Employee's average weekly wage
as the only disputed issue, Employee filed a request for expedited hearing and asked the
trial court to review the file and issue a decision without holding an evidentiary hearing,
as authorized by Tenn. Comp. R. & Regs. 0800-02-21-.14(l)(c) (2015).
In its decision, the trial court considered, without objection, all documentation
submitted by the parties. Thereafter, the trial court concluded that Employee did not
produce sufficient evidence of any miscalculation of the average weekly wage. As a
result, the trial court entered an order denying additional temporary disability benefits.
Upon careful review of the record, we agree with the trial court's finding that
Employee did not come forward with sufficient evidence to show an error in Employer's
calculation of the average weekly wage. Employee did not establish a particular number
of days during which he earned no wages, did not offer evidence of the reason(s) for any
missed days from work, and did not offer an explanation of the typical variance of work
hours from week to week in his particular occupation. See Cantrell v. Carrier Corp., 193
S.W.3d 467, 472 (Tenn. 2006). Under these circumstances, we discern no error in the
trial court's order.
For the foregoing reasons, we hold that the preponderance of the evidence
supports the trial court's order. See Tenn. Code Ann. § 50-6-239(c)(7) (2015). We
further find that the trial court's decision does not violate any of the standards set forth in
Tennessee Code Annotated section 50-6-217(a)(3) (2015). Accordingly, the trial court's
decision is affirmed and the case is remanded for any further proceedings that may be
necessary.
W. Conner, Judge
s' Compensation Appeals Board
2
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Robert Parrish ) Docket No. 2015-07-0467
)
v. )
) State File No. 54013-2016
Digit Dirt Worx, et al. )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 15th day of June, 2016.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Robert Parrish X Robertj777@icloud.com
Allen Grant X AGrant@morganakins.com
Allen Phillips, Judge X Via Electronic Mail
Kenneth M. Switzer, X Via Electronic Mail
Chief Judge
Penny Shrum, Clerk, X Penny.Patterson-Shrum@tn.gov
Court of Workers’
Compensation Claims
Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: Jeanette.Baird@tn.gov