             TENNESSEE BUREAU OF WORKERS' COMPENSATION
                WORKERS' COMPENSATION APPEALS BOARD


Tony Rucker                                 )   Docket No. 2015-02-0126
                                            )
V.                                          )
                                            )   State File No. 71844-2014
Flexible Staffing Solutions of Tennessee,   )
et al.                                      )
                                            )
Appeal from the Court of Workers'           )
Compensation Claims                         )
Pamela B. Johnson, Judge                    )


                            Vacated in Part and Remanded
                                 Filed May 13, 2016


The employer has appealed the trial court's compensation order, which found the
employee to have established in a bifurcated hearing that his neck and right shoulder
injuries arose primarily out of and in the course and scope of his employment. The
employee has filed a motion to dismiss the employer's appeal, asserting the notice of
appeal was untimely because it was filed more than seven days after issuance of the trial
court's order. The employer asserts its notice of appeal is timely since it was filed less
than thirty days following the entry of the trial court's compensation hearing order. We
find that the employer's notice of appeal is timely. We further find that the trial court
erred in addressing the employee's entitlement to temporary disability and medical
benefits in its order following the bifurcated compensation hearing, and we vacate that
part of the trial court's compensation order. Finally, we find that the remaining issues
raised in the employer's appeal are premature and we remand the case for such
proceedings as may be necessary to resolve the outstanding issues.

Judge David F. Hensley delivered the opinion of the Appeals Board, in which Judge
Timothy W. Conner and Judge Marshall L. Davidson, III, joined.

Neil M. McIntire, Nashville, Tennessee, for the employer-appellant, Flexible Staffing
Solutions of Tennessee


                                            1
David H. Dunaway, Lafollette, Tennessee, for the employee-appellee, Tony Rucker

                             Factual and Procedural Background

        Tony Rucker ("Employee") alleges he suffered injuries to his neck and right
shoulder arising primarily out of and in the course and scope of his employment with
Flexible Staffing Solutions of Tennessee ("Employer") on September 2, 2014. He filed a
petition for benefit determination seeking both temporary disability and medical benefits.
Following the filing of a dispute certification notice identifying the disputed issues as
medical benefits, temporary disability benefits, and compensability, Employee filed a
motion to compel payment of benefits requesting both medical and temporary disability
benefits. The motion alternatively requested an initial hearing. 1 Employee subsequently
requested an expedited hearing; however, the request was not accompanied by "affidavits
and any other information demonstrating that [Employee] is entitled to temporary
disability or medical benefits" as required by Tenn. Comp. R. & Regs. 0800-02-21-
.14(1)(a) (2015).

       The trial court entered an order dismissing Employee's motion to compel benefits,
concluding the motion was procedurally deficient because it was not accompanied by a
supporting affidavit. See Hadzic v. Averitt Express, No. 2014-002-0064, 2015 TN Wrk.
Comp. App. Bd. LEXIS 14 (Tenn. Wrk. Comp. App. Bd. May 18, 2015). The trial court
granted Employee's request for an initial hearing, which was scheduled for September 9,
2015. On September 21, 2015, the trial court entered an initial hearing order identifying
the contested issues as medical benefits, temporary disability benefits, and
compensability. The order noted Employee's "oral motion" and the "agreement of the
parties" to "bifurcate[] this cause," and provided that "[t]he issue of compensability will
be adjudicated separately and prior to the adjudication of the issue of compensation."

       Employee subsequently filed a "Renewed Motion to Compel Payment of
Benefits," which was supported by Employee's deposition as well as the depositions of
Dr. Richard P. Boyer and Dr. C. M. Salekin. On November 25, 2015, the parties
submitted a "Pre-Bifurcated Compensability Only Hearing Statement" wherein they set
out, among other matters, stipulated "findings of fact and conclusions of law," and the
parties additionally identified the contested issues to be tried at the bifurcated hearing.

       On December 3, 2015 an evidentiary hearing was held at which time the trial court
announced that "the first compensation hearing will be on the issue of compensability
only, and depending on the Court's determination of that issue, later temporary or
permanent disability benefits would be addressed by the parties." Two witnesses
1
  "With the exception of a hearing of temporary disability or medical benefit issues conducted on an
expedited basis, an initial hearing shall be the first hearing before a workers' compensation judge where
the judge will consider issues related to the efficient processing of the case." Tenn. Comp. R. & Regs.
0800-02-21-.02(15) (2015).

                                                   2
testified: Sanford Miller, Employee's supervisor on the date of Employee's injury, and
Employee. At the conclusion of Employee's proof, Employer moved to dismiss the case,
asserting that Employee failed to establish the elements of his case. The trial court took
the motion under advisement. Employer chose not to present further proof. 2 Before the
parties made their closing arguments, the trial court confirmed that "[t]he determination
of the Court will be on the issue of compensability only and as to the motion to dismiss,"
stating that the court "will not make a specific finding at this time as to whether or not
[Employee] is entitled to temporary disability or medical benefits."

       On January 21, 2016, the trial court issued a "Compensation Hearing Order,"
finding Employee "established by a preponderance of the evidence that he sustained a
compensable injury primarily arising out of and in the course and scope of his
employment." Contrary to the court's earlier statements that it would not make findings
as to Employee's entitlement to temporary disability and medical benefits, the trial court
awarded both temporary disability and medical benefits, but did not resolve all disputed
medical issues, stating "[t]his Court reserves the issue of past medical expenses for the
right shoulder to be determined at a later date." The order required compliance "no later
than five business days from the date of entry," unless the order was appealed. On
January 28, 2016 the trial court entered an "Order Correcting Compensation Hearing
Order," which amended the language concerning instructions for Employer's compliance
with the trial court's order. 3 On Febniary 19 2016 Employer filed a Compensation
Hearing Notice of Appeal.

       Employee thereafter filed a motion to dismiss the appeal, asserting that, to be
timely, Employer's notice of appeal had to be filed within seven business days of the
entry of the trial court's order. Employer filed a response to Employee's motion to
dismiss, asserting its February 19, 2016 notice of appeal was timely since it was filed
within thirty days of the trial court's Compensation Hearing Order.

                                         Standard of Review

       The standard of review to be applied by this Board in reviewing a trial court's
decision is statutorily mandated and limited in scope. Specifically, "[t]here shall be a
presumption that the findings and conclusions of the workers' compensation judge are
correct, unless the preponderance of the evidence is otherwise." Tenn. Code Ann. § 50-
6-239(c)(7) (2015). The trial court's decision must be upheld unless the rights of a party


2
 The first witness to testify, Sanford Miller, was called by Employer and allowed to testify out of order to
accommodate his work schedule.
3
  The trial court entered its corrected order nune pro tune. Although the order does not state the date to
which the court's corrected order was entered nune pro tune, we presume the trial court intended it to
relate back to the January 21, 2016, date of entry of the Compensation Hearing Order.

                                                     3
"have been prejudiced because findings, inferences, conclusions, or decisions of a
workers' compensation judge:

       (A)    Violate constitutional or statutory provisions;
       (B)    Exceed the statutory authority of the workers' compensation judge;
       (C)    Do not comply with lawful procedure;
       (D)    Are arbitrary, capricious, characterized by abuse of discretion, or
              clearly an unwarranted exercise of discretion;
       (E)    Are not supported by evidence that is both substantial and material
              in the light of the entire record."

Tenn. Code Ann. § 50-6-217(a)(3) (2015). Like other courts applying the standards
embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court
absent the limited circumstances identified in the statute.

                                         Analysis

       Employer raises four issues in its notice of appeal, namely, the compensability of
Employee's claim, whether Employee's injuries included his shoulder, whether a causal
connection was established between Employee's shoulder condition and the employment,
and whether the trial court's award of temporary disability benefits was appropriate. As
previously noted, Employee filed a motion to dismiss the appeal as untimely, asserting
Employer's notice of appeal was filed more than the seven days after issuance of an order
for temporary disability or medical benefits, thereby leaving the Appeals Board without
jurisdiction to decide the appeal. For the reasons that follow, we find the notice of appeal
to have been timely filed. Additionally, we vacate the trial court's order awarding
temporary disability and medical benefits, dismiss the appeal as premature, and remand
the case for such additional proceedings as may be necessary.

                            Timeliness of the Notice ofAppeal

        Employee contends the notice of appeal is untimely because it was filed twenty-
nine days after the trial court's Compensation Hearing Order was entered. Relying on
Tennessee Code Annotated section 50-6-239(d)(3) and Tenn. Comp. R. & Regs. 0800-
02-22-.01, Employee contends Employer is appealing an interlocutory order and was
required to file the notice of appeal within seven business days of the entry of the trial
court's January 21, 2016 order. See Tenn. Code Ann. § 50-6-217(a)(2)(A) (2015); Tenn.
Comp. R. & Regs. 0800-02-22-.0l(l)(a) (2015). In contrast to the seven business days
within which a party must file a notice of appeal of an interlocutory order, a party has
thirty calendar days in which to file a notice of appeal of a compensation order. Tenn.
Code Ann. § 50-6-217(a)(2)(B); Tenn. Comp. R. & Regs. 0800-02-21-.0l(l)(b).



                                             4
       Tenn. Comp. R. & Regs. 0800-02-21-.02(16) (2015) defines an interlocutory order
as "an order by a workers' compensation judge that awards or denies temporary disability
or medical benefits following a review of the submitted material, or a hearing if one is
convened at the discretion of the workers' compensation judge, as a result of a motion for
expedited hearing." (Emphasis added.) Employee contends that because the order in
question awards temporary disability and medical benefits, it is an interlocutory order.
However, the statute addressing expedited hearings authorizes a trial judge to hear
disputes "[u]pon motion of either party" on an expedited basis and enter an interlocutory
order "upon determining that the employee would likely prevail at a hearing on the
merits." Tenn. Code Ann. § 50-6-239(d)(l). It is within the trial judge's discretion
whether to hold "a full evidentiary hearing before issuing an interlocutory order for
temporary disability or medical benefits." Tenn. Code Ann. § 50-6-239(d)(2). In
contrast, following a compensation hearing a trial judge "shall issue a compensation
order ... and, if appropriate, an order for the payment of benefits." Tenn. Code Ann. §
50-6-239(c)(2). Moreover, Tenn. Comp. R. & Regs. 0800-02-21-.02(7) defines
"compensation order" as "an order by a workers' compensation judge following
conclusion of a full evidentiary hearing or a decision on the record."

       Here, the order appealed from is a compensation order entered by the trial court
following a bifurcated evidentiary hearing. While the order awarded temporary disability
and medical benefits, it was, nonetheless, a compensation order within the meaning of
Tennessee Code Annotated section 50-6-239(c)(2). Although Employee requested an
expedited hearing, the trial judge neither held an expedited hearing nor entered an
interlocutory order "based on a review of the file upon determining that no additional
information is needed to determine whether the employee is likely to prevail at a hearing
on the merits of the claim." Tenn. Comp. R. & Regs. 0800-02-21-.14(1)(c).
Accordingly, we deny Employee's motion to dismiss the appeal as untimely.

                                 The Bifurcated Hearing

      The Initial Hearing Order entered on September 21, 2015 bifurcated the case and
ordered that the issue of compensability be tried separately:

      BIFURCATION: Upon oral motion of [Employee], and by agreement of
      the parties, this Court hereby bifurcates this cause.        The issue of
      compensability will be adjudicated separately and prior to the adjudication
      of the issue of compensation.

        At the December 3, 2015 hearing, and following the trial court's review of the
parties' stipulated findings of fact and stipulated conclusions of law, the trial court
confirmed with the parties the issues to be decided as identified in the dispute
certification notice and in the Initial Hearing Order. Stating "[w]hether [Employee]
sustained an injury arising primarily out of and in the course and scope of the

                                            5
employment," the trial judge then asked whether "[t]he parties agree that that is the
correct contested issue for determination today?" Counsel for the parties responded
affirmatively, and the following colloquy ensued:

            THE COURT: Are there any other contested issues for
      determination, based on the bifurcation of this case?

             [COUNSEL FOR EMPLOYEE]: No, your honor.

             [COUNSEL FOR EMPLOYER]: No, your honor.

            [COUNSEL FOR EMPLOYEE]: I guess the only other question
      would be, if it is compensable, then is he owed temporary total [and]
      medical. That's a subpart of that.

            THE COURT: And I understand that that may be an issue,
      depending on the Court's determination today, and is the basis of your
      renewed motion to compel benefits. Is that correct?

             [COUNSEL FOR EMPLOYEE]: That's correct.

             THE COURT: Is there an agreement to address that matter today by
      the parties or do the parties want to reconvene that? Because it's not on the
      Court's docket for today's hearing.

            [COUNSEL FOR EMPLOYER]: Your Honor, I would suggest that
      we wait and address that later since it is not on the Court's docket today.

             [COUNSEL FOR EMPLOYEE]: It's my understanding, your
      Honor, this was part of the issue on the compensability when we set this to
      bifurcate it, and then obviously when he reached maximum medical
      improvement, at that point you decide any permanent disability. That's my
      understanding of your original order.

             THE COURT: The initial agreed -- the agreed initial hearing order
      was based upon a determination that the first compensation hearing will be
      on the issue of compensability only, and depending on the Court's
      determination of that issue, later temporary or permanent disability benefits
      would be addressed by the parties, and this Court will work with the parties
      to schedule that renewed motion.

            [COUNSEL FOR EMPLOYEE]: That's fine. That will work. That
      makes it easier.

                                           6
        Following the completion of the proof, the issue arose again concerning whether
the trial court would rule on temporary disability and medical benefits issues:

              THE COURT: So is the proof complete for the parties?

              [COUNSEL FOR EMPLOYER]: Yes, your Honor. And I
       apologize. I meant to and I'm not entirely certain, given the fact that we do
       not know whether the determination today of compensability will have a
       determinative effect on whether [temporary disability benefits] and medical
       expenses are going to be paid. I'd like to introduce the Court to another
       opinion, to a legal opinion.

             [COUNSEL FOR EMPLOYEE]: If we're not getting into that issue
       we don't need to --

             [COUNSEL FOR EMPLOYER]: That's the point. I don't know
       whether we will or won't.

             [COUNSEL FOR EMPLOYEE]: I think we reserve it until after we
       know that. You wouldn't let me go into it. I don't think you should.

              [COUNSEL FOR EMPLOYER]: That's fine .

               THE COURT: That's correct. The determination of the Court will
       be on the issue of compensability only and as to the motion to dismiss
       that's been served. This Court will not make a specific finding at this time
       as to whether or not [Employee] is entitled to temporary disability or
       medical benefits. That will be the determination that will follow, based
       upon this Court's decision in the compensation hearing order.

       The trial court's January 21, 2016 Compensation Hearing Order states that the
parties agreed to the trial court's bifurcating the case "as set forth in the Agreed Initial
Hearing Order." Nonetheless, the Compensation Hearing Order states that "the Court
bifurcated this cause and agreed to adjudicate the issue of compensability and temporary
benefits separately and prior to the adjudication of the issue of permanent disability
benefits." (Emphasis added.) The order identified the "central legal issues" as including
"whether [E]mployee is entitled to past or future temporary disability benefits," and
"whether [E]mployee is entitled to past or future medical benefits." Finding that the
evidence established that Employee "sustained a compensable injury primarily arising out
of and in the course and scope of his employment," the trial court additionally found that
Employee "is entitled to temporary disability and medical benefits." The trial court
expressly reserved "the issue of past medical expenses for the right shoulder to be
determined at a later date."

                                             7
        Based upon the parties' December 3, 2015 agreement to limit the issue to be tried
to compensability and the trial court's confirmation at the hearing that it "will not make a
specific finding at this time as to whether or not [Employee] is entitled to temporary
disability or medical benefits," we find that the trial court went beyond the scope of the
bifurcated hearing when it awarded temporary disability and medical benefits in the
January 21, 2016 compensation order. 4 Accordingly, we vacate the trial court's award of
temporary disability and medical benefits.

                              Whether the Appeal is Premature

       Had the trial court decided the bifurcated hearing in favor of Employer and found
Employee's claim was not compensable, the Compensation Hearing Order would be
appealable. However, the present appeal is premature because the trial court's
Compensation Hearing Order does not dispose of all of the disputed issues, and it does
not address Employee's entitlement to permanent disability benefits. See Ledford v.
McPherson, No. 01-S-01-9011-CV-00099, 1991 Tenn. LEXIS 266 (Tenn. June 24,
1991). Moreover, the order does not resolve all of the issues concerning the medical
benefits to which Employee may be entitled.

        Tennessee Code Annotated section 50-6-217(a)(l) established the Workers'
Compensation Appeals Board ''to review interlocutory and final orders entered by
workers' compensation judges." There are two methods by which a trial court's
compensation order can become final. The first involves a compensation order that is not
appealed to the Workers' Compensation Appeals Board. "The decision of the workers'
compensation judge shall become final thirty (30) days after the workers' compensation
judge enters a compensation order," in cases where "a party in interest does not timely
file a request for appeal to the workers' compensation appeals board." Tenn. Code Ann.
§ 50-6-217(a)(2)(B). In those circumstances, "the order of the workers' compensation
judge shall become final and may be appealed to the state supreme court." Tenn. Code
Ann. § 50-6-239( c)(7). The second method by which a compensation order can become
final involves an appeal to the Workers' Compensation Appeals Board and the Appeals
Board's subsequent affirmance "certifying as final the compensation order." Tenn. Code
Ann.§ 50-6-217(a)(2)(B). 5 Here, Employer's appeal to the Appeals Board prevented the


4
  We express no opinion on whether or under what circumstances a bifurcated trial is authorized or
warranted. We do, however, note that resolving litigation in piecemeal fashion may delay a final
resolution of the case and rarely serves the interests of judicial economy.
5
  After this appeal was filed, section 50-6-217(a)(2)(B) was amended to provide that "[f]or purposes of
further appellate review, the workers' compensation appeals board shall certify as final the order of the
court of workers' compensation claims as affirmed, reversed, modified, or remanded. The decision of the
workers' compensation appeals board shall be appealable to the Tennessee Supreme Court as provided for
in the Tennessee Rules of Appellate Procedure. If a compensation order is timely appealed to the
workers' compensation appeals board, the order issued by the workers' compensation judge shall not
                                                   8
compensation order from becoming final under section 50-6-239(c)(7) and appealable to
the Tennessee Supreme Court. Moreover, the trial court's failure to address all of the
issues necessary to conclude the case prevents the Appeals Board from certifying the
compensation order as final. 6 Accordingly, the case must be remanded to the trial court
to address the parties' unresolved disputes.

                                                Conclusion

       For the foregoing reasons, we conclude that Employer's appeal of the trial court's
Compensation Hearing Order was timely. Because the trial court's Compensation
Hearing Order made findings concerning issues the parties and the trial court agreed
would not be addressed in the December 3, 2015 hearing, the trial court's award of
temporary disability and medical benefits is vacated. Finally, because the trial court's
order does not dispose of all of the disputed issues, Employer's appeal is premature and
is, therefore, dismissed. The case 1s remanded to the trial court for such further
proceedings as may be necessary.



                                                          ~David F. Hensley, Judge
                                                           Workers' Compensation Appeals Board




become final, as provided in § 50-6-239(c)(7), until the workers' compensation appeals board issues a
written decision certifying the order as a final order." 2016 Pub. Acts 816, § 4.
6
 A final order or judgment is one that resolves all the issues in the case, "leaving nothing else for the trial
court to do." In re Estate ofHenderson, 121 S.W.3d 643,645 (Tenn. 2003).

                                                      9
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Tony Rucker                                              )   Docket No. 2015-02-0126
                                                         )
v.                                                       )
                                                         )    State File No. 71844-2014
Flexible Staffing Solutions of Tennessee,                )
et al.                                                   )


                                     CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 13th day of May, 2016.
 Name                    Certified   First Class   Via   Fax        Via     Email Address
                         Mail        Mail          Fax   Number     Email

 Neil M. McIntire                                                     X     nmcintire@howell-fisher.com
 David H. Dunaway                                                     X     dhdunaway@aol.com
 Pamela B. Johnson                                                    X     Via Electronic Mail
 Kenneth M. Switzer,                                                  X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                  X      Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Jeanette Baird
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: Jeanette.Baird@tn.gov
