The opinion
FILED
Feb 07, 2020
10:34 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
COURT OF WORKERS’ COMPENSATION CLAIMS
AT COOKEVILLE
MARK HORTON, ) Docket No.: 2019-04-0068
Employee, )
)
V. )
)
UNITED PARCEL SERVICE, INC., ) State File No.: 75773-2016
Employer, )
)
And )
)
LIBERTY MUTUAL INS. CO., ) Judge Robert Durham
Insurer. )
COMPENSATION HEARING ORDER
The Court held a Compensation Hearing on January 31, 2020. The sole issue
involved a question of first impression: May the Court consider awarding attorney’s fees
under Tennessee Code Annotated § 50-6-226(d)(1) when the issue was not preserved in a
post-mediation Dispute Certification Notice? Based on the facts before this Court in this
case, the answer is no.
Factual Stipulations
The parties stipulated to the following facts:
Mr. Horton suffered a left-knee injury on September 26, 2016.
e The injury primarily arose out of and the course and scope of his employment
with UPS.
e UPS paid all medical expenses.
e UPS paid all temporary disability benefits at the agreed compensation rate of
$888.
e Mr. Horton suffered a one-percent whole-body impairment and he is not entitled
to any of the statutory multipliers.
e Mr. Horton is entitled to all workers’ compensation benefits afforded by law for
his injury.
Analysis
As noted above, the only issue was the question of Mr. Horton’s counsel’s
entitlement to attorney fees under Tennessee Code Annotated section 50-6-226(d)(1)
(2019). Under Tennessee Code Annotated § 50-6-239(b)(1), only issues certified by the
mediator in a dispute certification notice may be presented to the judge for adjudication.
Here, the issue does not appear on the dispute certification notice. Mr. Horton’s attorney
did not raise this issue until closing argument. Also, counsel presented no evidence that
UPS “wrongfully” denied benefits to Mr. Horton, as required by section 50-6-226(d)(1),
except that the parties failed to resolve the claim at mediation despite UPS’s stipulation to
all material facts. Under these circumstances, the Court declines to order UPS to pay
attorney’s fees to Mr. Horton’s counsel.
It is, therefore, ORDERED, that:
1. UPS shall pay Mr. Horton $3,996.00 as a lump-sum in permanent partial disability
benefits.
2. UPS shall provide the reasonable, necessary medical treatment for Mr. Horton’s
work-related left-knee injury for his lifetime. Dr. Roy Terry shall be Mr. Horton’s
authorized treating physician.
as Mr. Horton’s request that UPS pay his attorney’s fees is denied. Mr. Dunigan
shall receive $799.20 in attorney’s fees, which equates to 20% of the disability
award.
db, Absent an appeal, this Order shall become final in thirty days.
5. The filing fee of $150.00 is taxed to UPS under Tenn. Comp. R. & Regs. 0800-02-
21-.07, to be paid to the Court Clerk within ten days and for which execution may
issue as necessary.
6. UPS shall prepare and file the SD-2 with the Court Clerk within ten days of this
order becoming final.
ENTERED February 7, 2020.
Robért Durham, Judge
Court of Workers’ Compensation Claims
2
APPENDIX
Exhibits:
1. Wage Statement
2. Mr. Horton’s deposition
3. Dr. Terry’s C-32 Medical Report
4, UPS’s Physical Demand Assessment
5. Dr. Terry’s Medical Records
6. Excerpts from UPS’s Interrogatory Responses
Technical Record:
ll. Petition for Benefit Determination
Ds Dispute Certification Notice
3. Scheduling Order
4, UPS’s Pre-Compensation Hearing Memorandum
5. Mr. Horton’s Trial Brief and Pre-Hearing Statement
6. UPS’s Exhibit List
Te Mr. Horton’s Witness and Exhibit List
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on February 7, 2020.
Name Certified Via Via _ | Service sent to:
Mail Fax Email
Brian Dunigan X | brian@poncelaw.com
mmeceginnis(@poncelaw.com
David Hooper X___| dhooper@hooperzinn.com
J) | |
Pi 4 =
Linny Wea
Peiny Shr inh, Clerk
Court of Wérkers’ Compensation Claims
WC.CourtClerk@tn.gov
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: “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
altemative, 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 fifieen 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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
Employer
Notice is given that
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
CZ Expedited Hearing Order filed on CD Motion Order filed on
C1 Compensation Order filed on Oi Other Order filed on
issued by Judge
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Parties
Appellant(s) (Requesting Party): [o Employerl | Employee
Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: Docket No.: Date of Inj.:
Appellee(s) (Opposing Party): [| Employer [Employee
Appellee’s Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the day of , 20
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082