Opinion

Bach, Evan v. Lynn Fogleman Construction

  • 2019 TN WC 54
Court
Tennessee Court of Workers' Compensation Claims
Filed
Apr 5, 2019
Status
Published
On the bench
Brian K. Addington
Cited by
0 cases
Authority
More cited than 12.5%

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

1

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

1

Mr. Bach did not attend the withdrawal hearing, but the Court reminded Mr. Bach of the summary

judgment hearing in its order.

2

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

3

II

I 'I

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.

II I.

' I

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

I

'

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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