Opinion

Neal, Wendy v. Moore Construction Co. Inc.

  • 2019 TN WC 88
Court
Tennessee Court of Workers' Compensation Claims
Filed
May 30, 2019
Status
Published
On the bench
Joshua Davis Baker
Cited by
0 cases

The opinion

FILED

May 30, 2019

07:15 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

WENDY NEAL, )

Employee, ) Docket No. 2017-06-1025

)

v. )

)

MOORE CONSTRUCTION CO., ) State File No. 36505-2017

INC., )

Employer, )

)

and ) Judge Joshua Davis Baker

BRENTWOOD SERVICES, )

Carrier. )

COMPENSATION HEARING ORDER GRANTING

MOTION FOR SUMMARY JUDGMENT

This case came before the Court on Moore Construction’s motion for summary

judgment in which it asserted material facts showing Ms. Neal’s condition arose

primarily from degenerative conditions unrelated to the workplace accident. Thus, it

argued the Court should grant summary judgment because she lacks proof of medical

causation. Moore set the motion for a hearing. Thereafter, Ms. Neal filed a response

where she agreed to all material facts and acceded not to oppose Moore’s motion. The

Court therefore finds that no hearing is necessary; that there are no issues of material fact;

and that Moore is entitled to summary judgment. See Tenn. R. Civ. P. 56.04.

IT IS, THEREFORE, ORDERED AS FOLLOWS:

1. The Court grants Moore’s motion for summary judgment and dismisses Ms.

Neal’s claim with prejudice to its refiling.

2. Absent an appeal to the Appeals Board, this order shall become final in thirty

days.

3. The Court assesses the $150.00 filing fee against Moore under Tennessee

Compilation Rules and Regulations 0800-02-21-.07, for which execution may

issue as necessary.

4. Moore shall pay the filing fee within five business days of the order becoming

final.

5. Moore shall file form SD-2 with the clerk, via email at wc.courtcleerk@tn.gov,

within ten business days of this order becoming final.

ENTERED ON MAY 29, 2019.

_____________________________________

Joshua Davis Baker, Judge

Court of Workers’ Compensation Claims

2

CERTIFICATE OF SERVICE

I certify that a true and correct copy of this order was sent to the following

May 30th

recipients by the following methods of service on ____________, 2019.

Name Certified Via Via Service sent to:

Mail Fax Email

William Poland, X whpoland@clarksvillelawyers.com

Employee’s Attorney rebecca@clarksvillelawyers.com

Duane Willis, X dwillis@morganakins.com;

Employer’s Attorney plunny@morganakins.com

____________________________________

Penny Shrum, Clerk of Court

Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov

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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