The opinion
FILED
Jan 22, 2020
11:09 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
DANNY LARSEN, ) Docket No. 2015-02-0461
Employee, )
V. )
WALKER TRUCK CONTRACTORS, )
INC., ) State File No. 30692-2017
Employer, )
And )
ACCIDENT FUND GENERAL )
INSURANCE COMPANY, ) Judge Lisa A. Lowe
Carrier. )
COMPENSATION HEARING ORDER
This case came before the Court for a Compensation Hearing on January 21, 2020.
Mr. Larsen suffered a work-related injury and reached a settlement on his original award.
The issue currently before the Court is whether he is entitled to past temporary total
disability (TTD) benefits from February 29, 2016, through April 25, 2016.' For the
reasons below, the Court finds that Mr. Larsen failed to establish by a preponderance of
the evidence entitlement to TTD benefits.
History of Claim
Mr. Larsen injured his right hip while working for Walker Truck Contractors on
February 25, 2015. He was treated and returned to work three days later. Mr. Larsen
worked until he failed his required DOT physical. Walker terminated Mr. Larsen on
February 15, 2016, due to lack of a DOT physical card. He then filed a Petition for
Benefit Determination seeking additional treatment. At that time, Walker provided a
panel of physicians, from which Mr. Larsen selected Dr. Paul Yau. Dr. Yau treated him
and ultimately performed surgery.
'Mr. Larsen previously identified increased benefits as an issue. However, during his testimony he
confirmed that he was only seeking 8.5 weeks of TTD benefits.
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Walker paid TTD benefits from February 27 through March 31, 2015, and April
25, 2016, through maximum medical improvement on May 15, 2018. Dr. Yau assigned
an impairment rating of 10%, and the parties settled Mr. Larsen’s original award.
At the Compensation Hearing, Mr. Larsen asserted entitlement to an additional 8.5
weeks of TTD benefits for the time he waited to see Dr. Yau. Mr. Larsen did not
introduce any medical records or medical opinions into evidence. He confirmed that he
did not seek medical treatment before seeing Dr. Yau and that Dr. Yau never addressed
his ability to work for the 8.5 weeks before the visit.
Walker countered that Mr. Larsen failed to establish entitlement to additional TTD
benefits and moved the Court to grant an involuntary dismissal.
Findings of Fact and Conclusions of Law
In nonjury cases, a motion for involuntary dismissal is permissible and governed
by Rule 41.02(2). An involuntary dismissal is often referred to as a “directed verdict.”
In Burchfield v. Renfree, 2013 Tenn. App. LEXIS 685 (Tenn. Ct. App. Oct. 18, 2013),
the Court of Appeals reiterated the principles regarding directed verdicts:
The rule for determining a motion for directed verdict requires the trial
judge and the appellate courts to look to all of the evidence, take the
strongest, legitimate view of the evidence in favor of the opponent of the
motion and allow all reasonable inferences from it in his favor. The court
must disregard all countervailing evidence and if there is then any dispute
as to any material, determinative evidence or any doubt as to the
conclusions to be drawn from the whole evidence, the motion must be
denied. The court may grant the motion only if, after assessing the
evidence according to the foregoing standards, it determines that reasonable
minds could not differ as to the conclusions to be drawn from the evidence.
Id. at *86-87 (internal citations omitted).
In this case, the Court doubts that reasonable minds would differ as to the
conclusions to be drawn from the testimony and evidence. However, a motion for
involuntary dismissal is rarely appropriate in a workers’ compensation case, since a
reversal of the trial court’s ruling resulls in additional proceedings and undue delay. See
Cunningham v. Shelton Sec. Serv., 46 8.W.3d 131, 137-38 (Tenn. 2001). The trial court
should instead hear the entire case and make appropriate findings of fact. Jd. Thus, the
Court denies the motion for involuntary dismissal and decides the case on the merits.
At a Compensation Hearing, Mr. Larsen must establish by a preponderance of the
2
evidence that he is entitled to the requested benefits. Willis v. All Staff; 2015 TN Wrk.
Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-
239(c)(6) (2019). To establish entitlement to TTD benefits, Mr. Larsen must prove: (1) a
disability from working as the result of a compensable injury; (2) a causal connection
between the injury and the inability to work; and (3) the duration of the period of
disability. Shepherd v. Haren Const. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS
15, at *13 (Mar. 30, 2016).
Mr. Larsen requested 8.5 weeks of past TTD benefits while waiting to see Dr.
Yau. He testified he failed his physical but offered no testimony about his inability to
perform any work during that 8.5-week period. Nor did he provide a medical opinion
addressing his inability to work during that period.
After careful consideration, the Court holds that Mr. Larsen failed to establish, by
a preponderance of the evidence, entitlement to an additional 8.5 weeks of temporary
total disability benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Larsen’s claim against Walker Truck Contractors and its insurance carrier for
additional temporary disability benefits is dismissed with prejudice against
refiling.
2. Walker Truck Contractors shall pay costs of $150.00 to the Court Clerk within
five business days of this order becoming final.’
3. Absent an appeal, this order shall become final thirty days after issuance.
ENTERED January 22, 2020.
Wat. \\ Lug Ge
LISA A. LOWE, JUDGE
Court of Workers’ Compensation Claims
* The statistical data related to this case can be found in the previously filed SD-2. Since no additional
benefits were ordered, neither party needs to file another SD-2.
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APPENDIX
Technical record:
Petition for Benefit Determination
Dispute Certification Notice
Request For Expedited Hearing
Employer’s Response to Employee’s Request for Expedited Hearing
Employer’s First Requests for Admission to Employee
Motion to Allow Telephonic Appearance
Order Granting Employer’s Motion to Allow Telephonic Appearance
Order Granting Employer’s Motion to Allow Telephonic Testimony
9. Employer’s Pre-Hearing Brief
10.Employer’s Witness and Exhibit List
11.Employee’s Response
SAS ee ee we
Exhibits:
1. Employee’s Response to Employer’s Requests
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on January 22, 2020
Name Mail Fax | Email | Service sent to:
Danny G. Larsen XxX X | maymaysmom@yahoo.com
Employee’s Attorney 543 Brushy Valley Road
Clinton, TN 37716
Cole B. Stinson, X | cole.stinson@accidentfund.com
Employer’s Attorney
MAL "i ad! pe Oe
PENNYSHRUM, COURT CLERK
we.courtclerk(@tn.gov
LB-1103
COMPENSATION HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
wiww.trgov/labor-wid/weorp.sttm!
wc.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals Board.
[List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
List of Parties
Appellant (Requesting Party): At Hearing:L_]EmployerL_lEmployee
Address:
Party’s Phone: Email:
Attorney's Name: BPR#:
Attorney's Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
rev, 10/18 Page 1 of 2 RDA 11082
Employee Name: SFH: Dol:
Appellee(s)
Appellee (Opposing Party): At Hearing:L_JEmployerl_]Employee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney's Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a true and exact copy of this
Compensation Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all
parties and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee
Rules of Board of Workers’ Compensation Appeals on this the day of , 20
[Signature of appellant or attorney for appellant]
Attention: This form should only be used when filing an appeal to the Workers’ Compensation Appeals
Board. If you wish to appeal a case to the Tennessee Supreme Court, please utilize the form provided by
the Court which can be found on their website at the following address:
http://www.tncourts.gov/sites/default/files/docs/notice of appeal - civil or criminal.pdf
LB-1103 rev. 10/18 Page 2 of 2 RDA 11082
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:
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).
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.
. 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 appcllate review.
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, I-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, | 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. lam 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 $ 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 $ permenth 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 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
| 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