                                                                                1\llay 10, 2016

                                                                               1N COlJRT OF
                                                                           WORKERS' COl\.IPENSATION
                                                                                  CLAThlS

                                                                                  Time: 2:33 Pl\1

            TENNESSEE BUREAU OF WORKERS' COMPENSATION
              COURT OF WORKERS' COMPENSATION CLAIMS
                         AT CHATTANOOGA

Bonnie Brown,                                )   Docket No.: 2016-01-0139
           Employee,                         )
v.                                           )   State File No.: 58807-2015
Whole Foods Markets, Inc.,                   )
           Employer,                         )   Judge Thomas Wyatt
And                                         )
Ace American Ins. Co.,                      )
           Carrier.                         )

     ORDER DENYING EXPEDITED HEARING REQUEST FOR DISCOVERY
                         (Review of the File)


       This case came before the undersigned Workers' Compensation Judge on May 6,
20 16, upon the Request for Expedited Hearing filed by the employee, Bonnie Brown,
pursuant to Tennessee Code Annotated section 50-6-239 (2015). Ms. Brown requested
the Court render its decision based upon a review of the file without an evidentiary
hearing. (T .R. 3 at 1.)

       Ms. Brown filed her Request for Expedited Hearing on April 12, 2016,
accompanied by the affidavit of her attorney, Ronald J. Berke. (T.R. 3, 4.) Mr. Berke's
affidavit states, "I have filed a Request for an Expedited Hearing regarding my [client's]
Petition for Benefit Determination request seeking discovery documents in this matter."
(T.R. 4 at 1.) Later in his affidavit, Mr. Berke avers that the Court need not conduct a
hearing on Ms. Brown's Request for Expedited Hearing because it "pertains solely to
discovery issues." I d. For the reasons set forth below, the Court finds Ms. Brown cannot
obtain the relief requested through a Request for Expedited Hearing.

                                   History of Claim

       Ms. Brown is a fifty-seven-year-old resident of Whitfield County, Georgia. (T.R.
1 at 1.) On February 29, 2016, she filed a Petition for Benefit Determination (PBD)
alleging she sustained a compensable spinal injury on July 22, 2015, when she picked up
a heavy box in the course and scope of her employment as a food preparer for the

                                            1
    employer, Whole Foods Markets, Inc. (Whole Foods). (T.R. 1-2.) In her PBD, Ms.
    Brown described the disputed issues between the parties as "Employer has not provided
    Employee a proper panel of back specialists/neurosurgeons. Employer has also failed to
    provide Employee's counsel with requested documents." (T.R. 1 at 1.)

           The mediating specialist assigned to the claim issued a Dispute Certification
    Notice on April 7, 2016, upon the failure to achieve a mediated resolution of the parties'
    disputes (T.R. 2.) On April 12, 2016, Ms. Brown filed her Request for Expedited
    Hearing accompanied by the affidavit of her attorney, Ronald J. Berke. (T.R. 3, 4.) Mr.
    Berke's affidavit states that Ms. Brown's Request for Expedited Hearing addresses only
                     1
    discovery issues. Ms. Brown asks the Court to decide the undesignated discovery issues
    upon a review of the file without an evidentiary hearing. Whole Foods did not respond to
    Ms. Brown' s Request for Expedited Hearing. 2

                                Findings of Fact and Conclusions of Law

       The Tennessee Workers' Compensation Law does not permit Ms. Brown to
address discovery disputes through a Request for Expedited Hearing. Tennessee Code
Annotated section 50-6-239(d)(l) (2015) permits a workers ' compensation judge to 'hear
disputes over issues provided in the dispute certification notice concerning the provision
of temporary disability or medical benefits on an expedited basis[.]" (Emphasis added.)
Alternatively, Section 50-6-239(e) (2015) provides that "[a]ll discovery disputes ... shall
be adjudicated upon the review of written motions and affidavits."

       Tennessee Code Annotated section 50-6-239(c)(l) (2015) provides that "[t]he ...
Tennessee Rules of Civil Procedure shall govern proceedings at all hearings before a
workers' compensation judge unless an alternate procedural ... rule has been adopted by
the administrator." Both the Rules of Civil Procedure and the Bureau's Mediation and
Hearing Rules provide for discovery in a workers' compensation claim by the use of
                                 4
interrogatorie 3 and depositions. The Rules of Civil Procedure provide for the use of
requests for production of documents and requests for admissions, among other discovery
devices.

1
 Mr. Berke's affidavit did not identify the records or information Ms. Brown seeks, nor does it state whether he
previously propounded discovery on Whole Foods seeking the requested records/information. (Ex. 4.)
2
    At the time the Court issued this order, no attorney had made an appearance on behalf of Whole Foods.
3
 Tennessee Compilation Rules and Regulations 0800-02-21-.16(4)(b) (2015) provides that a party is not required to
answer interrogatories until after the Court schedules discovery guidelines in an Initial (Scheduling) Order.
However, the rule also gives the Court authority to order a party to answer interrogatories at an earlier stage of the
claim. The Court urges the parties to agree to the reasonable exchange of written discovery without the Court's
intervention, but will address any discovery motion filed by a party.
4
 The parties should review Tennessee Compilation Rules and Regulations 0800-02-2 I -.16(5) pertaining to the use
of depositions for discovery in a workers' compensation claim.

                                                           2
        Ms. Brown should engage in the discovery procedures available under the
applicable rules to obtain the information she seeks. If Whole Foods fails to provide
appropriate responses to discovery requests that Ms. Brown properly propounded under
applicable procedural rules, she may file a motion asking the court to compel discovery.
Upon the filing of a discovery motion, the Court will address the issues between the
parties within the parameters of the applicable procedural rules.

             IT IS, THEREFORE, ORDERED:

          1. Ms. Brown's Request for Expedited Hearing is denied because she limited
             the relief sought therein to an attempt to obtain discovery.

          2. This matter is set for a Status Conference on June 7, 2016, at 9:00 a.m.
             Eastern Time. The parties shall call in to 855-747-1721 (toll-free) or 615-
             741-3061 to participate.

       ENTERED this the lOth day of ]2~~


                                  Thomas Wyatt, Judge
                                  Court of Workers' Compensation Claims

Status Conference:

      A Status Conference has been set with Judge Thomas Wyatt, Court of
Workers' Compensation Claims. You must call855-747-1721 (toll-free) or 615-741-
3061 to participate in the Initial Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.


Right to Appeal:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."



                                            3
2. Pile the completed form with the Court Clerk within seven business days of the
   date the Workers' Compensation Judge entered the Expedited Hearing Order.

3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

4. The appealing party is responsible for payment of a filing fee in the amount of
   $75.00. Within ten calendar days after the filing of a notice of appeal, payment
   must be received by check, money order, or credit card payment. Payments can be
   made in person at any Bureau office or by United States mail, hand-delivery, or
   other delivery service. In the alternative, the appealing party may file an Affidavit
   of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
   fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
   of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
   will consider the Affidavit of Indigency and issue an Order granting or denying
   the request for a waiver of the filing fee as soon thereafter as is
   practicable. Failure to timely pay the filing fee or file the Affidavit of
   Indigency in accordance with this section shall result in dismissal of the
   appeal.

5. The parties, having the responsibility of ensuring a complete record on appeal,
   may request, from the Court Clerk, the audio recording of the hearing for the
   purpose of having a transcript prepared by a licensed court reporter and filing it
   with the Court Clerk within ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers' Compensation
   Claims and must be approved by the Workers' Compensation Judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant's
   position statement. All position statements pertaining to an appeal of an
   interlocutory order should include: (1) a statement summarizing the facts of the
   case from the evidence admitted during the expedited hearing; (2) a statement
   summarizing the disposition of the case as a result of the expedited hearing; (3) a
   statement of the issue(s) presented for review; and (4) an argument, citing
   appropriate statutes, case law, or other authority.


                                         4
Technical record:

1.   Petition for Benefit Determination, filed February 29, 2016;
2.   Dispute Certification Notice filed April 7, 2016;
3.   Request for Expedited Hearing, filed April 12, 2016; and
4.   Affidavit of Ronald J. Berke, accompanying filing of Request for Expedited Hearing
     on April12, 2016.


                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 1Oth day
ofMay, 2016.

Name                      Certified    Via        Via    Service sent to:
                           Mail        Fax       Email
Ronald J. Berke,                                  X      Ronnie(G),berkcanys .corn;
Attorney                                                 margo(a1berkeattvs.com
Whole Foods Markets,                              X      Sheila_dargan@gbtpa.com
Inc., c/o Sheila Dargan
claim representative fo
Gallagher-Bassett




                                                   m, Clerk of Court
                                         Court o   orkers' Compensation Claims
                                         WC.CourtClerk@tn.gov




                                             5
