                                                                                     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.
     •   The injury primarily arose out of and the course and scope of his employment
         with UPS.
     •   UPS paid all medical expenses.
     •   UPS paid all temporary disability benefits at the agreed compensation rate of
         $888.
     •    Mr. Horton suffered a one-percent whole-body impairment and he is not entitled
         to any of the statutory multipliers.


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     •     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)
(20 19). 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)(l),
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.

3.       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.

4.       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.




                                            Rob rt urham, Judge
                                            Court of Workers' Compensation Claims

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                                       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:

1.     Petition for Benefit Determination
2.     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
7.     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

DavidHoo er



                                                          1,Clerk
                                                          rkers' Compensation Claims

                                          WC.CourtClerk@tn.gov




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