# Lamm, Terry v. E. Miller Construction, Inc.

> Tennessee Court of Workers' Compensation Claims · September 25, 2018 · 2018 TN WC 155

URL: https://www.frixlaw.com/law-library/cases/4560174

## Case

- **Court:** Tennessee Court of Workers' Compensation Claims
- **Decided:** September 25, 2018
- **Citations:** 2018 TN WC 155
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Thomas Wyatt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FILED
September 25, 2018

Time 8:46 AM
TN COURT OF
WORKERS’ COMPENSATION
CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT CHATTANOOGA

Terry Lamm, ) Docket No. 2015-01-0429
Employee, )

Vv. )

E. Miller Construction, Inc., ) State File No. 64870-2015
Employer. )

And )

Bridgefield Casualty Co., ) Judge Thomas Wyatt
Insurer. )

COMPENSATION ORDER AWARDING PERMANENT PARTIAL
DISABILITY AND MEDICAL BENEFITS

This claim came before the Court on September 14, 2018, for a Compensation
Hearing. The threshold legal issues were whether Terry Lamm’s claim is barred by his
alleged willful misrepresentation of his spine history, and whether his back injury arose
primarily out of and in the course and scope of his employment. For the reasons below,
the Court awards Mr. Lamm permanent partial disability and medical benefits.

History of Claim
Procedural Background

Mr. Lamm filed this claim after E. Miller Construction, Inc. (EMC) denied further
medical treatment and temporary disability benefits because the then-treating physician
gave the opinion that Mr. Lamm’s back condition did not arise primarily out of and in the
course and scope of employment. After an Expedited Hearing, the Court ordered EMC to
provide a panel.' EMC next sought summary judgment based on the panel physician’s
causation opinion, but the Court denied the motion after finding genuine issues of
material fact existed on the cause of Mr. Lamm’s injury and his right to future medical
benefits.

"EMC initially referred Mr. Lamm for treatment without offering a panel.

1
Mr. Lamm’s Injury

Mr. Lamm is a fifty-seven-year-old resident of Monroe County, Tennessee. EMC
hired him in January 2015 and assigned him to a crew supervised by Terry Garren. Mr.
Garren testified Mr. Lamm was a good employee who successfully completed all
assigned tasks. He worked forty hours per week during most of his employment at EMC
and worked overtime during several weeks. EMC’s pay records indicate Mr. Lamm
worked every week from the date of hire until mid-July 2015, when he missed two weeks
due to back pain from a fall in the shower. He returned to work on August 5 and worked
at least eight hours per day until the date of injury. He worked five hours on August 12,
the date of injury.

On that date, Mr. Lamm was assigned to a crew supervised by Darren Galyon.
Mr. Galyon testified Mr. Lamm told him early that day that his back was sore. Mr.
Galyon told him to let him know if a task was too hard for him to do, and he would re-
assign him.

Around mid-day, Mr. Lamm and Mr. Galyon went to the roof of a Johns-Manville
plant in Etowah, Tennessee, to help other EMC employees lift an H-beam. The other
employees lifted one end of the beam and placed it into brackets approximately six feet
above the roof. Mr. Lamm, Mr. Galyon and another employee lifted the other end of the
beam into its set of brackets. Mr. Lamm testified this “got my back,” explaining that he
felt pain and a pop as he and the other employees lifted the beam overhead. Because of
his back pain, he exited the roof by walking down interior stairs instead of climbing down
the ladders he used to access the roof.

Mr. Galyon testified the weight of the beam was not “hard” for three men to lift
and stated that Mr. Lamm did not immediately tell him he was hurt. He added that Mr.
Lamm left the roof the same way he got there: by climbing down ladders. Mr. Galyon
said Mr. Lamm continued working after the lifting incident but soon reported that he
needed to leave because his back hurt. Mr. Lamm testified that he called for a ride home
because his back pain was too severe for him to drive.

Treatment Following the Incident at EMC

Mr. Lamm sought treatment at a hospital two days after the injury. He reported he
hurt his back while lifting steel beams and described a previous back surgery. Mr. Lamm
received an injection and pain medication and was released with a diagnosis of lumbar
strain.

Mr. Lamm next sought treatment under workers’ compensation. EMC sent him to
Lakeway Urgent Care on August 17 without providing a panel. The Lakeway records

2
documented that Mr. Lamm reported a lifting injury at EMC and a previous successful
back surgery. The providers diagnosed a back strain, prescribed medication and physical
therapy, and placed restrictions on bending, stooping, squatting, and lifting.”

Dr. John Sanabria at Lakeway noted no changes in Mr. Lamm’s symptoms during
the next visit. He discontinued physical therapy, ordered an MRI, and kept Mr. Lamm on
the same restrictions. At an October 19 visit, Dr. Sanabria told Mr. Lamm that the MRI
did not show an acute injury, placed him at maximum medical improvement (MMI), and
declared him “[f]it for duty without restrictions.” He also advised him to seek care from
a personal physician for “the degenerative changes in [his] lumbar spine.”

Mr. Lamm filed this claim and requested an Expedited Hearing after EMC refused
further treatment based on Dr. Sanabria’s release. The Court ordered EMC to provide a
panel. EMC complied, and Mr. Lamm selected orthopedist Dr. Jay Jolley.

Mr. Lamm did not see Dr. Jolley until January 2017 and only received a causation
evaluation.’ Before the appointment, EMC sent Dr. Jolley a causation inquiry asking if
he agreed with Dr. Sanabria’s opinion that Mr. Lamm’s injury at EMC “did not
contribute more than 50% in causing his disablement or need for medical treatment,
considering all causes.” After the appointment, Dr. Jolley checked boxes indicating his
agreement with Dr. Sanabria’s opinion. EMC later provided Dr. Jolley a C-32 form in
which he wrote that Mr. Lamm “had some aggravation to his pre-injury ddd (but the
employment did not cause the ddd).

Medical Testimony

At the Compensation Hearing, the parties introduced causation opinions through
the deposition testimony of four physicians. Mr. Lamm relied on the testimony of
orthopedist Dr. William Kennedy, whom he saw once for an evaluation. Dr. Kennedy
concluded that Mr. Lamm’s injury at EMC constituted a permanent aggravation of pre-
existing degenerative disc disease in his lumbar spine, with the injury at EMC resulting in
more than fifty percent of the cause of his current need for treatment. Dr. Kennedy noted
that Mr. Lamm’s back pain before the injury at EMC waxed and waned and did not
prevent him from working physically-demanding jobs, while his post-injury pain was
constant and prevented him from working.

* EMC began paying temporary disability benefits on August 17 and continued until Dr. Sanabria released
him on October 19.

> The appeal of the Court’s Expedited Hearing Order delayed Mr. Lamm’s appointment with Dr. Jolley.

* <ddd” is an abbreviation for degenerative disc disease.
During his first deposition, Dr. Kennedy supported his causation opinion with the
lack of medical records indicating that Mr. Lamm underwent back treatment during the
years immediately before the injury at EMC. EMC later located records showing that
Mr. Lamm received treatment for back pain for years, including just fourteen days before
his injury at EMC.

Dr. Kennedy considered the newly-discovered records before he gave a
supplemental deposition in which he did not change his causation opinion. In support of
his conclusion, Dr. Kennedy cited the fact that Mr. Lamm was always able to return to
work following the treatment he received before the injury at EMC. He characterized
these treatments as indicative of the waxing and waning nature of Mr. Lamm’s back pain
before he permanently aggravated his degenerative spinal disease at EMC.

Dr. Kennedy was the only testifying doctor who rated Mr. Lamm’s impairment.
He gave an impairment of nine percent to the whole body from his injury at EMC. He
testified that this impairment rating was distinct from the rating Mr. Lamm received
following the 1999 surgery, and his impairment rating for both conditions was eighteen
percent to the whole body.

EMC presented the deposition testimony of Drs. Jolley, Sanabria, and Edward
Kahn, an IME orthopedist, regarding causation. Dr. Jolley determined that, “at worst,”
Mr. Lamm suffered a temporary back sprain at EMC in August 2015. He added that,
because the July 2015 episode of back pain was so similar to the pain Mr. Lamm
described after the injury at EMC, he could not tell whether Mr. Lamm’s pain in August
2015 had its genesis in the fall in the shower or lifting at EMC. Dr. Jolley also testified
that Mr. Lamm “very likely [suffered] no real injury whatsoever” at EMC. Finally, Dr.
Jolley testified that Mr. Lamm needs two-level fusion surgery due to painful instability
caused by the degenerative disc disease in his lumbar spine, but the injury at EMC was
not the primary cause of the need for surgery.

Dr. Sanabria testified that Mr. Lamm sustained a lumbar sprain at EMC. He
explained that the MRI did not reveal any findings of an acute injury. He further stated
that Mr. Lamm’s back sprain returned to the pre-injury-at-EMC “baseline” by October
19. Thus, he set MMI on that date and released him to return to work without
restrictions.

On cross-examination, Dr. Sanabria testified that the lifting incident at EMC
“would be considered an aggravation or exacerbation” of the pre-existing conditions in
Mr. Lamm’s spine. However, he concluded that the aggravation was not work-related
under the 2013 changes to the workers’ compensation law. Dr. Sanabria stated that he
attended a seminar where an attorney instructed that, under the 2013 changes in the law,
aggravations and exacerbations are not compensable unless they occur soon after the
employee begins performing the offending work-related activity.

4
Finally, Dr. Kahn testified that the lifting incident at EMC caused a lumbar strain
and an aggravation of pre-existing conditions. He stated that both the strain and the
aggravation were temporary. Dr. Kahn asserted that Mr. Lamm’s July 2015 back pain
episode either made him more likely to injure his back at EMC in August 2015 or
continued at the time of the lifting incident and accounted for some of the pain Mr.
Lamm experienced after that incident. Finally, Dr. Kahn asserted that “[w]ith the new
Tennessee laws, you can’t have an aggravation of a pre-existing [condition] be a
compensatory injury.”

Work History Since EMC

Mr. Lamm testified that his back injury at EMC totally disabled him. He, his
mother, and his daughter testified that, except for periods of temporary flare-ups of back
pain, Mr. Lamm was able to clean and maintain his house and yard, fish and camp, play
with his grandchildren, maintain his truck, and work before the injury at EMC. Mr.
Lamm testified he tried to do light work around his house after his injury, but back pain
caused him to quit. He recently successfully applied for SSI benefits.

EMC’s Willful Misrepresentation Defense

Mr. Lamm did not graduate from high school or obtain a GED. He testified that
he can barely read and has no computer or math skills. His mother stated that Mr. Lamm
has been “slow” following a head injury when he was a small child, and he can only read
“small words.” She and Mr. Lamm’s daughter testified that he has always had a bad
memory, and they go to the doctor with him because he cannot recall what the doctor told
him.

Mr. Lamm has worked since age fourteen, mostly in construction jobs. He injured
his back on the job in 1999 and underwent lumbar disc surgery. Afterward, he returned
to work for the same employer and continued to work in construction. Although he
occasionally missed work after 1999 due to back pain, Mr. Lamm continued to work until
his injury at EMC.

Mr. Lamm worked as a janitor at JETKT, a manufacturing plant, before applying
at EMC. EMC performed work for JETKT, and through that work, Mr. Lamm asked Mr.
Garren if EMC was hiring. Mr. Garren suggested that he apply and list him as a
reference. EMC hired Mr. Lamm without asking for health information and assigned him
to Mr. Garren’s crew.

° Mr. Lamm testified on numerous occasions during the Compensation Hearing that he had no memory of
things about which he was asked to testify, including signing the Health Questionnaire at the center of
EMC’s willful misrepresentation defense.
After hiring him, EMC gave Mr. Lamm a Health Questionnaire. Its safety
manager, Andrew Harrell, testified EMC did not use the information in the questionnaire
in its hiring decision but had it available to decide what kind of accommodations its
employees needed. Mr. Lamm stated that he did not remember completing the
questionnaire, but he confirmed that the date and signature on the documents were his.
The questionnaire contained “No” answers to every inquiry on the questionnaire,
including those asking whether he had ever undergone surgery or received treatment or
hospitalization for “[b]ack pain or discomfort of any kind”

Mr. Lamm’s “No” responses about back pain and surgery were false, as he
previously underwent surgery and received injections, physical therapy, and pain-
medication prescriptions for lumbar spine conditions. Before starting work at EMC in
2015, Mr. Lamm received pain management in Georgia and Tennessee and underwent an
MRI in 2014 that revealed severe degenerative disc disease at the L3-L4 and L4-L5
levels of his spine. Had EMC obtained Mr. Lamm’s past medical records, it would have
learned that, after surgery in 1999, a doctor restricted him from lifting more than fifty
pounds occasionally and twenty pounds frequently.

EMC rested its willful misrepresentation defense on the testimony of Mr. Harrell,
who asserted that he would not have assigned Mr. Lamm the task on which he was
injured had he known his medical history. However, EMC presented no testimony that
EMC’s supervisors ever called Mr. Harrell to determine if they should assign Mr. Lamm
or any employee certain jobs. No witness testified that EMC had a policy requiring
supervisors to ask Mr. Harrell to approve job assignments for the employees on their
crews.

Findings of Fact and Conclusions of Law
General Legal Principles

Mr. Lamm 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). At a Compensation Hearing, he must establish his entitlement to benefits by a
preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2017); see also
Willis v. All Staff, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015).

Here, EMC contended that Mr. Lamm is not entitled to benefits because he
willfully misrepresented his spinal history. EMC has the burden of proving its
affirmative willful misrepresentation defense by a preponderance of the evidence. See
generally Tenn. Code Ann. § 50-6-110(b).
Willful Misrepresentation Defense

The Court first considers whether the willful misrepresentation defense survived
the 2013 reforms to the Workers’ Compensation Law, an issue of first impression. The
Court holds it remains viable.

The Workers’ Compensation Appeals Board held that reliance on Tennessee
Supreme Court precedent pre-dating the 2013 reforms is appropriate unless (1) the
rationale of the precedent is based on statutory enactments changed or repealed by the
2013 reforms, or (2) the rationale is based on principles, such as liberal construction, or
resolution of reasonable doubt, in favor of the employee, that the 2013 reforms
eliminated. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 n.4 (Mar. 27, 2015).

In Federal Copper and Aluminum Company v. Dickey, 493 S.W.2d 463, 464
(Tenn. 1973), the Tennessee Supreme Court decided that a willful misrepresentation
defense existed in workers’ compensation cases even though the general assembly had
not enacted this defense. The Court explained: “An employee who has wilfully [sic]
misrepresented or failed to disclose material information regarding his physical condition
should not be permitted a recovery in a work[ers’] compensation case merely because the
legislature failed to anticipate the problem with a specific provision to that effect.”

The 2013 reforms did not abrogate the willful misrepresentation defense. Further,
Dickey is not based on a liberal construction of the law or on any requirement to resolve
reasonable doubt in favor of an employee. Thus, the Court holds that willful
misrepresentation remains a viable defense under the current Workers’ Compensation
Law.

In Dickey, the Supreme Court adopted the following test for application of the
willful misrepresentation defense:

The following factors must be present before a false statement in an
employment will bar benefits: (1) The employee must have knowingly
and willfully made a false representation as to his physical condition. (2)
The employer must have relied upon the false representation and this
reliance must have been a substantial in the hiring. (3) There must have
been a causal connection between the false representation and the injury.

Id. at 465.

EMC satisfied the first prong of the Dickey test. The Court rejects Mr. Lamm’s
argument that he did not knowingly and willfully misrepresent his spinal health because
he cannot read and does not remember answering the questions. Further, the Court finds

7
no basis to conclude that an EMC employee or some other person answered the questions
without input from Mr. Lamm. The Court also finds that EMC satisfied the third prong
of the Dickey test because the subject of the misrepresentation was his spinal health and
the injury for which he seeks benefits is a spinal injury.

The application of the willful misrepresentation defense here turns on whether
EMC proved the second prong of the test—that it relied to its detriment on the inaccurate
information in the questionnaire about Mr. Lamm’s spine history. The Court holds that
EMC did not satisfy its burden.

The Court notes that the Dickey test arose in the context of misrepresentation in
the hiring process. Thus, if the misrepresentation defense is limited to the hiring context,
it does not apply here because Mr. Harrell testified that EMC did not utilize information
in the questionnaire for that purpose.

But even if the misrepresentation defense were broad enough to apply to post-
hiring decisions, the Court holds that EMC did not establish the requirement that it
detrimentally relied on the information in the questionnaire in deciding Mr. Lamm’s job
duties. Mr. Harrell did not testify that he or anyone with EMC was ever asked to check
the information in the questionnaire. Further, although two EMC supervisors who
directed Mr. Lamm’s activities testified during the Compensation Hearing, neither stated
they ever called EMC to determine if Mr. Lamm could perform a task. In fact, on the
date of injury, EMC’s supervisor knew Mr. Lamm had back soreness, but he left it up to
him to decide whether he could perform an assigned task instead of calling to discuss the
issue with Mr. Harrell. In view of the above, the Court holds EMC did not prove that it
detrimentally relied on the inaccurate information in the questionnaire, as it must do to
invoke the defense.

Compensability

Under Tennessee law, Mr. Lamm has the burden of proving that his injury arose
primarily out of and in the course and scope of employment. To satisfy this burden, he
must come forward with proof “by a preponderance of the evidence that the employment
contributed more than fifty percent (50%) in causing the injury, considering all causes.”
He must establish this “to a reasonable degree of medical certainty.” “The opinion of the
treating physician, selected by the employee from the employer’s designated panel of
physicians . . . shall be presumed correct on the issue of causation but this presumption
shall be rebuttable by a preponderance of the evidence.” See generally Tenn. Code Ann.
§ 50-6-102(14).

Here, the parties relied on competing causation opinions of medical experts.
When presented with conflicting medical proof, the Court must determine if the
preponderance of all the evidence, including lay evidence, rebuts the presumption of

8
correctness afforded the causation opinion of the treating physician. Within that
framework, a trial judge “has the discretion to conclude that the opinion of one expert
should be accepted over that of another expert” as containing the more probable
explanation of any disputed point. See Sanker v. Nacarato Trucks, Inc., 2016 TN Wrk.
Comp. App. Bd. LEXIS 27, at *11-12 (Jul. 6, 2016).

Here, the Court gives little weight to the opinions of Drs. Kahn and Sanabria.
Both doctors’ opinions were clouded by the erroneous concept that, under current law,
aggravations of pre-existing conditions are not compensable, or are only compensable if
they occur near the beginning of the employment. Tennessee Code Annotated section
50-6-102(14)(A) provides that an aggravation of a pre-existing condition is compensable
if “it can be shown to a reasonable degree of medical certainty that the aggravation arose
primarily out of and in the course and scope of employment.”

Dr. Jolley’s opinion that Mr. Lamm’s current back pain, its need for treatment, and
its accompanying impairment and disability did not arise primarily out of and in the
course and scope of employment is entitled to a presumption of correctness. Thus, the
focus is whether the preponderance of the evidence rebuts Dr. Jolley’s opinion. The
Court holds that the preponderance of the evidence rebuts his opinion and establishes that
Mr. Lamm’s injury at EMC arose primarily out of and in the course and scope of
employment.

The Workers’ Compensation Appeals Board in Creasman v. Waves, Inc., 2018 TN
Wrk. Comp. App. Bd. LEXIS 13, at *9-11 (Apr. 16, 2018), gave guidance for courts
when weighing the testimony of conflicting experts. The Board identified the following
considerations in this analysis:

e The qualifications of the experts;
The thoroughness with which the experts reviewed pertinent information in
arriving at their opinions;
The experts’ documentation and explanation of their evaluative processes; and
The consistency of the experts’ opinions with the factual information
developed at trial.

The Court finds Drs. Jolley and Kennedy are both qualified and experienced
orthopedists. Both doctors reviewed essentially the same records in arriving at their
different causation opinions. However, the Court is troubled that EMC initially solicited
Dr. Jolley’s causation opinion by asking if he agreed with another doctor’s opinion.
Thus, the Court reduces the weight it gives Dr. Jolley’s opinion because EMC
predisposed him to another doctor’s causation opinion.

But the underlying facts developed during the Compensation Hearing separate
their causation opinions in the Court’s mind. The preponderance of the evidence

9
established that, although Mr. Lamm at times suffered flare-ups of back pain, he
successfully maintained his capacity to work physically-demanding jobs before he was
injured at EMC. In the months before the work injury, Mr. Lamm worked full time for
JETKT and successfully performed strenuous construction work for EMC until the
injury. Further, he worked eight or more hours for four days after returning to work from
his bout of back pain in July 2015. Since the injury at EMC, Mr. Lamm has consistently
reported back and leg pain to his providers and has been unable to work.

Considering the above facts, the Court accepts the causation opinion of Dr.
Kennedy as the best explanation for the causation of Mr. Lamm’s injury. Thus, the Court
holds that Mr. Lamm suffered a permanent aggravation of the pre-existing conditions in
his lumbar spine while helping to lift an H-beam at EMC on August 12, 2015. The Court
also holds that Mr. Lamm’s disability and need for treatment for back and leg pain since
the lifting incident at EMC arose primarily out of and in the course and scope of
employment.

Permanent Partial Disability Benefits

Based on the above holding, the Court awards Mr. Lamm permanent partial
disability (PPD) benefits based on Dr. Kennedy’s nine-percent whole-body rating.
However, the Court must set the applicable compensation rate before finalizing its award.
EMC’s payroll records indicate that it paid Mr. Lamm a total of $19,580.00 during the
thirty weeks between the date of hire and the last date he worked. Thus, his average
weekly wage is $652.67, making his compensation rate $435.11.

Tennessee Code Annotated section 50-6-207(3) governs an employee’s right to
PPD benefits. Subdivision (A) provides for an original award of PPD calculated by
multiplying the applicable impairment rating by 450 weeks (40.5 weeks). Thus, the
Court awards Mr. Lamm an original award totaling $17,621.96, based on Dr. Kennedy’s
nine-percent whole-body rating.

Subdivision (B) provides for a resulting award of PPD benefits “[i}f at the time the
[original period of compensation] ends the employee has not returned to work.” Mr.
Lamm’s original period of compensation ended forty and one-half weeks, or 283.5 days,
after October 19, 2015—the date of MMI.° By the Court’s calculation, his original
period of compensation ended on July 28, 2016. In that Mr. Lamm’s injury prevented
him from working anywhere on that date, the Court holds that he is entitled to a resulting
award.

° The medical testimony in the record does not support any different MMI date. The Court did not
consider the half day in its calculation.

” In making this finding, the Court accepted Dr. Kennedy’s opinion that Mr. Lamm’s spinal condition
restricts him from repeated bending, stooping or squatting, from working with his hands overhead, from

10
Subdivision (B) additionally provides that the resulting award of PPD is calculated
by applying multipliers for certain factors. Mr. Lamm established that he is entitled to
the application of multipliers of 1.35 for his inability to return to work; 1.2 for the fact he
was over forty years old at the time the original compensation period ended; and 1.45
because he lacks a high school diploma or GED. After application of the above
multipliers, the Court sets Mr. Lamm’s resulting award at $23,772.01. In total, the Court
awards Mr. Lamm $41,393.97 in PPD benefits.*

Medical Benefits

Mr. Lamm is entitled to future medical benefits for reasonable and necessary
treatment of his compensable injury under Tennessee Code Annotated section 50-6-204.
Dr. Jolley is the authorized treating physician.

IT IS, THEREFORE, ORDERED:

1. That EMC and/or its carrier shall pay Mr. Lamm original and resulting awards
of PPD benefits totaling $41,393.97.

2. That EMC and/or its carrier shall provide Mr. Lamm future medical benefits
for reasonable and necessary treatment of his compensable injury under the
care of Dr. Jolley.

3. That counsel for Mr. Lamm may petition the Court for approval of an
attorney’s fee and reimbursement of costs.

4. That EMC and/or its counsel shall pay court costs of $150.00 to the Court
Clerk under Tennessee Compilation Rules and Regulations Rule 0800-02-21-
.07. Further, counsel for EMC shall prepare and submit a Statistical Data Form
for this matter to WC.CourtClerk@tn.gov within ten business days of the date
of judgment.

5. Absent an appeal, this order becomes final in thirty days.

climbing ladders and working at heights, and from lifting more than twenty pounds occasionally and ten
pounds frequently.

® The Court holds that Mr. Lamm did not establish his claim to permanent total disability benefits.
11
ENTERED September 25, 2018.

Ponkeobei-

Judge Thomas Wyatt .
Court of Workers’ Compensation Claims

APPENDIX

Technical record: The Court considered the following filings in making its decision:

CO PAANAMNESY HS

Petition for Benefit Determination

Expedited Hearing Order

Motion for Summary Judgment

Memorandum in Support of Motion for Summary Judgment

Statement of Undisputed Facts in Support of Motion for Summary Judgment
Scheduling Order

Post-Discovery Petition for Benefit Determination

Post-Discovery Dispute Certification Notice

. Notice of Compensation Hearing

10. Order Denying Summary Judgment

11.Employee’s Objection to Use of Form C-32

12. Pre-Compensation Hearing Statement

13. Employer’s Motion to Exclude and/or Motion in Limine

14. Employer’s Pre-Compensation Hearing Brief

15.Employer’s Memorandum of Law in Support of Motion to Exclude and/or

Motion in Limine

16. Employee’s Response to Motion to Exclude and/or Motion in Limine

Exhibits:

The Court either admitted the following exhibits into evidence or marked them

for identification only after sustaining objection to the exhibit:

l.

2,

Ww

Two-volume transcript of the deposition of Dr. William E. Kennedy, plus
attached exhibits

Two-volume transcript of the deposition of Dr. Jay Jolley, plus attached
exhibits

Transcript of the deposition of Dr. John Sanabria, plus attached exhibits
Two-volume transcript of the deposition of Dr. Edward Kahn, plus attached
exhibits

12
sn

exhibits

os?

Transcript of the deposition of Physician Assistant Michael Wall, plus attached

Transcript of the deposition of Dr. Deaver Shattuck, plus attached exhibits
Form C-41 Wage Statements
Payroll records

9, Form C-42 Employee Choice of Physician Form
10. First Report of Injury
11. Medical records of Chota Community Health Services, Dr. Steve Sanders, Dr.
Ken Kozawa, Sweetwater Hospital, Dr. James Fox, Outpatient Diagnostic
Center, Parkwest Medical Center, Madisonville Primary Care Group, Dr. Jay

Jolley, and Dr. Edward Kahn
12.Employer personnel file on Terry Lamm

13, Discovery responses
14. Transcript of the deposition of Nicholas Andrew Harrell, plus attached exhibits
15. Copy of the opinion in Terry T. Lamm v. State of Tennessee.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this Compensation Hearing Order
was sent to the following recipients by the following methods of service on September

25, 2018.
Name Certified Via Service sent to:
Mail Email
Joe Crabtree x josephcrabtree@bellsouth.net
Employee Attorney
Anastacia Shelton xX Anastacia.shelton@petersonwhite.com

Nick Peterson
Employer Attorney

Nick.peterson@petersonwhite.com

Penny Shrum| Court Clerk

Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov

13

wipotuanap

Compensation Hearing Order Right to Appeal:

If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, you must:

1. Complete the enclosed form entitled: “Compensation Hearing Notice of Appeal,” and file
the form with the Clerk of the Court of Workers’ Compensation Claims within thirty
calendar days of the date the compensation hearing order was filed. When filing the
Notice of Appeal, you must serve a copy upon 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 of 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 bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar days of the filing of the
Notice of Appeal. The statement of the evidence must convey a complete and accurate
account of the hearing. The Workers’ Compensation Judge must approve the statement
of the evidence before the record is submitted to the Appeals Board. If the Appeals
Board is called upon to review testimony or other proof concerning factual matters, the
absence of a transcript or statement of the evidence can be a significant obstacle to
meaningful appellate review.

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. The appealing
party has fifteen calendar days after the date of that notice to submit a brief to the
Appeals Board. See the Practices and Procedures of the Workers’ Compensation
Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann. § 50-6-239(c)(7).

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, |-B
Nashville, TN 37243-1002
800-332-2667

AFFIDAVIT OF INDIGENCY

l, , having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty,

4. Full Name: 2. Address:

3. Telephone Number: 4. Date of Birth:

5. Names and Ages of All Dependents:

Relationship:

Relationship:

Relationship:

Relationship:

6. |am employed by:

My employer's address is:

My employer’s phone number is:

7. My present monthly household income, after federal income and social security taxes are deducted, is:

$

8. | receive or expect to receive money from the following sources:

AFDC $ per month beginning
SSl $ per month beginning
Retirement $ per month beginning
Disability 3 per month beginning
Unemployment $ per month beginning
Worker’s Comp.$ per month beginning
Other $ per month beginning

LB-1108 (REV 11/15) RDA 11082
9. My expenses are:

Rent/House Payment $ permonth Medical/Dental $ , per month

Groceries $ per month Telephone $ per month

Electricity $ per month School Supplies $ per month

Water $ per month Clothing $ per month

Gas $ per month Child Care $ =-. per month

Transportation $ per month Child Suppot $$ _ per month

Car $ per month

Other $ per month (describe: }
10. Assets:

Automobile $ (FMV)

Checking/Savings Acct. $

House $ (FMV)

Other $ Desoribe:

11. My debts are:

Amount Owed To Whom

| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.

APPELLANT

Sworn and subscribed before me, a notary public, this

day of , 20

NOTARY PUBLIC

My Commission Expires:

LB-1108 (REV 11/15) RDA 11082

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4560174. Public record. Not legal advice.