                                                                                FILED
                                                                               Sep 18, 2019
                                                                              10:09 AM(CT)
                                                                            TENNESSEE COURT OF
                                                                           WORKERS' COMPENSATION
                                                                                  CLAIMS




           TENNESSEE BUREAU OF WORKERS' COMPENSATION
          IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT GRAY

ISRAEL LARA,                              )    Docket No. 2016-02-0501
         Employee,                        )
v.                                        )
PROGRESS RAIL SERVICES,                   )    State File No. 94197-2015
CORP.,                                    )
         Employer,                        )
And                                       )    Judge Brian K. Addington
LIBERTY MUTUAL,                           )
         Carrier.                         )


                       COMPENSATION HEARING ORDER
                       GRANTING SUMMARY JUDGMENT


      This case came before the Court on September 16, 2019, upon the Motion for
Summary Judgment filed by Progress Rail Services. Progress asserted as undisputed fact
that Mr. Lara did not suffer an injury that would entitle him to medical, temporary, or
permanent benefits. For the reasons below, the Court finds Progress is entitled to
summary judgment.

                                    Claim History

      Mr. Lara alleged a back injury in November 2015. He underwent authorized
treatment with an urgent-care provider, a pain specialist, and Dr. James Brasfield, a
neurosurgeon. He missed five days of work due to an excuse from the urgent-care
provider. Dr. Brasfield ran numerous tests and found Mr. Lara suffered degenerative,
chronic conditions. He placed Mr. Lara at maximum medical improvement on March 16,
2018, despite Mr. Lara's continued pain complaints and found he suffered no permanent
impairment.

       Because of those complaints, Progress supplied a second-opinion with Dr. Travis
Burt, who agreed with Dr. Brasfield that Mr. Lara suffered no permanent impairment. He


                                           1
also found that Mr. Lara's current need for treatment was not related to the November
2015 incident.

                                   Procedural History

       Mr. Lara requested an expedited hearing after Progress refused to provide
additional benefits. Following the hearing, the Court found that Mr. Lara was not likely
to succeed at a hearing on the merits in proving the need for further medical treatment
because no physician stated his current complaints were related to the alleged injury. The
Court also found he was not likely to succeed in proving entitlement to temporary total
disability benefits because he only missed five days of work.

       Mr. Lara appealed the Court's decision to the Tennessee Workers' Compensation
Appeals Board, which affirmed the Court's decision on July 18, 2019. On August 9,
2019, Progress filed its motion.

        In support of its motion, Progress filed a Statement of Undisputed Material Facts
showing: Mr. Lara only missed five days of work; he was at maximum medical
improvement; he had a zero-percent impairment rating; and Dr. Travis Burt determined
that his current complaints were not related to his November 2015 injury. Mr. Lara did
not respond. Thus, these facts are deemed undisputed under Tennessee Rule of Civil
Procedure 56.03.

       At the motion hearing, Mr. Lara asserted that he still suffers daily pain and should
be allowed to see a physician that neither he nor the employer would pay to determine the
extent of his injury. Progress argued that the undisputed facts show it is entitled to
summary judgment.

                                         Analysis

       Concerning the benefits in question, an employer is required to provide medical
treatment made reasonably necessary to an accident of work. Tenn. Code Ann. § 50-6-
204(a)(l)(A) (2018). An employee is entitled to temporary total disability benefits if a
work injury causes disability lasting more than seven days. Tenn. Code Ann. § 50-6-
206(a)(l). An employee is entitled to permanent partial disability benefits if he is
permanently, partially disabled as a result of a work injury. Tenn. Code Ann. § 50-6-
207(3)(a).

       Progress is entitled to summary judgment as a matter of law on the issues of
medical, temporary, and permanent benefits if the record before the Court establishes
there are no genuine issues as to material facts. See Tenn. Code Ann. § 20-16-101, et
seq.; Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn. 2015).


                                            2
       Here, the undisputed facts establish that: Mr. Lara's current need for treatment is
not related to his alleged November 2015 injury; he missed only five days of work; and
he is at maximum medical improvement and received a zero-percent impairment rating.
While the Court is sympathetic to Mr. Lara's continued complaints, they are insufficient
to defend against Progress's motion, as he presented no medical opinion to rebut the
physicians' opinions contained in the record.

       Having carefully reviewed and considered the evidence in the light most favorable
to Mr. Lara, the Court finds Progress has demonstrated that Mr. Lara's evidence is
insufficient to establish a genuine issue of material fact as to the entitlement of medical,
temporary, or permanent benefits.

       IT IS, THEREFORE, ORDERED that:

   1. Progress's Motion for Summary Judgment is granted, and Mr. Lara's claim is
      dismissed on the merits with prejudice to its refiling.

   2. The filing fee of $150.00 is taxed to Progress under Tennessee Compilation Rules
      and Regulations 0800-02-21-.06 for which execution may issue as necessary.

   3. Progress shall prepare and submit the SD2 to the Court Clerk within ten days of
      the date of judgment.

   4. Absent an appeal, this order shall become final in thirty days.

              ENTERED September 18, 2019.



                                           /SI Brian K. Addington
                                          BRIAN K. ADDINGTON, JUDGE
                                          Court of Workers' Compensation Claims




                                             3
                          CERTIFICATE OF SERVICE

     I certify that a copy of the Order was sent as indicated on September 18, 2019.

        Name             Certified    Fax       Email   Service sent to:
                          Mail
Israel Lara,                x                    x      napomusono08@hotmail.com
Employee
Eric Shen,                                       x      eric.shen@libertymutual.com
Employer's Attorney                                     shelby .hale~libertymutual.com




                                       PENNY SHRUM, COURT CLERK
                                       \VC.courtclerk(@tn.gov




                                            4
                        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 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 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.
                                         COMPENSATION HEARING NOTICE OF APPEAL
                                                 Tennessee Division of Workers’ Compensation
                                                     www.tn.gov/labor-wfd/wcomp.shtml
                                                            wc.courtclerk@tn.gov
                                                               1-800-332-2667

                                                                                                      Docket #:
                                                                                                      State File #/YR:




                       Employee

                       v.


                       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: ☐Employer ☐Employee
          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 *
LB-1103   rev. 10/18                                      Page 1 of 2                                                    RDA 11082
Employee Name: ____________________________________    SF#: ________________________________ DOI: __________________




Appellee(s)
Appellee (Opposing Party):____________________At Hearing: ☐Employer ☐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 I 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
                               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, 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 Comp.$ ________ per month               beginning
        Other           $ ________ per month             beginning



LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are:

        Rent/House Payment $ ________ per month          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




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

_______ day of                                    , 20_______.



NOTARY PUBLIC

My Commission Expires:




LB-1108 (REV 11/15)                                                                             RDA 11082
