The opinion
FILED
Apr 05, 2019
07:15 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT GRAY
EVAN BACH, ) Docket No. 2018-02-0298
Employee, )
v. )
LYNN FOGLEMAN ) State File No. 51112018
CONSTRUCTION, )
Employer, )
and )
PLAZA INSURANCE COMPANY, ) Judge Brian K. Addington
Insurance Carrier. )
COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT
This claim came before the Court on April 2, 2019, upon Lynn Fogleman
Construction's (Fogleman) Motion for Summary Judgment. Mr. Bach did not appear for
the hearing.
Claim History
Mr. Bach fell from a ladder on January 1, 2018, and suffered multiple rib fractures,
a subarachnoid hemorrhage, pleural effusion and a collapsed lung arising out of his
employment with Fogleman. It provided medical treatment, and eventually all providers
placed Mr. Bach at maximum medical improvement, determined he did not have any
permanent impairment, and recommended no further treatment.
Mr. Bach filed a Petition for Benefit Determination requesting medical treatment
for hearing loss and vertigo. This Court issued an Expedited Hearing Order denying
additional medical treatment because Mr. Bach did not present any medical opinion that
he needed further treatment related to his work. Later, Fogleman filed a Motion for
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Summary Judgment. Fogleman first served the motion on Mr. Bach's attorney and later
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Mr. Bach after the Court granted his attorney's motion to withdraw as counsel.
Findings of Fact and Conclusions of Law
Summary judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter oflaw." Tenn. R. Civ. P. 56.04 (2018).
Fogleman must do one of two things to prevail on its motion for summary
judgment: (1) submit affirmative evidence that negates an essential element of Mr.
Bach's claim, or (2) demonstrate that Mr. Bach's evidence is insufficient to establish an
essential element of his claim. Tenn. Code Ann. § 20-16-101 (2018); see also Rye v.
Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If
Fogleman is successful in meeting this burden, Mr. Bach "may not rest upon the mere
allegations or denials of its pleading." !d. at 265. Rather, he must respond by producing
evidence that sets forth specific facts showing there is a genuine issue for trial. !d.; Tenn.
R. Civ. P. 56.06. He must do more than simply show that there is some metaphysical
doubt as to the material facts. Rye, at 265.
To determine whether summary judgment is appropriate, the Court looks to
whether there are genuine issues of material fact on the essential elements of Mr. Bach's
claim. In doing so, the Court must review the evidence in the light most favorable to Mr.
Bach as the nonmoving party and draw all reasonable inferences favoring him. Payne v.
D and D Elec., 2016 TN Wrk. Comp. App. Bd. LEXIS 21, at* 12 (May 4, 2016).
Here, Fogleman asserted Mr. Bach's claim for additional benefits is without merit
because he suffered no impairment and no physician has recommended further treatment.
Mr. Bach did not respond to the motion and has not come forward with any medical
proof demonstrating that he suffered permanent impairment or needs further treatment for
any of his alleged injuries. The Court concludes no genuine issue of material fact exists
and summary judgment is appropriate as a matter of law.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Bach's claim is dismissed with prejudice.
2. Fogleman shall pay court costs of $150.00 to the Court Clerk within five business
days of this order becoming final.
3. Fogleman shall prepare and submit a Statistical Data Form (SD2) within ten
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Mr. Bach did not attend the withdrawal hearing, but the Court reminded Mr. Bach of the summary
judgment hearing in its order.
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business days of this order becoming final.
4. Absent an appeal, this order shall become final thirty days after issuance.
ENTERED April 5, 2019.
BRIAN K. ADDINGTON, JUDGE
Court of Workers' Compensation Claims
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on April 5, 20 19.
Name Certified Via Via Service sent to:
Mail Fax Email
Evan Bach, 5749 Natural Tunnel Pkwy.
Employee X Duffield, VA 24244
Daniel Howard,
Employer's Attorney X daniel.howard@sa-trial.com
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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 ofthe 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 lndigency 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.
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Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I 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.
1. Full Name:_ _ _ _ __ _ _ _ _ __ 2. Address: - - - - - - - -- - - --
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - -- - - -- -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -
- - - - - - - - - - - - - -- -- Relationship: - - - - - -- - - -- - -
- - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -
6. I 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. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ! ~ li
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Rent/House Payment $ per month Med icai/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 Support $ _ _ _ _ _ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ _ __
(FMV) - - - - - - - - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ __
(FMV) - - - - - - - - - -
Other $ _ _ _ __ Describe:_ _ _ _ __ _ __ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
____ dayof _____________________ , 20_ __
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ _ __
LB-1108 (REV 11/15) RDA 11082