                                                                                  FILED
                                                                                Apr 05, 2019
                                                                               07:15 AM(CT)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




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

EVAN BACH,                                  )   Docket No. 2018-02-0298
        Employee,                           )
v.                                          )
LYNN FOGLEMAN                               )   State File No. 51112018
CONSTRUCTION,                               )
         Employer,                          )
and                                         )
PLAZA INSURANCE COMPANY,                    )   Judge Brian K. Addington
         Insurance Carrier.                 )


     COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT


       This claim came before the Court on April 2, 2019, upon Lynn Fogleman
Construction's (Fogleman) Motion for Summary Judgment. Mr. Bach did not appear for
the hearing.

                                     Claim History

      Mr. Bach fell from a ladder on January 1, 2018, and suffered multiple rib fractures,
a subarachnoid hemorrhage, pleural effusion and a collapsed lung arising out of his
employment with Fogleman. It provided medical treatment, and eventually all providers
placed Mr. Bach at maximum medical improvement, determined he did not have any
permanent impairment, and recommended no further treatment.

       Mr. Bach filed a Petition for Benefit Determination requesting medical treatment
for hearing loss and vertigo. This Court issued an Expedited Hearing Order denying
additional medical treatment because Mr. Bach did not present any medical opinion that
he needed further treatment related to his work. Later, Fogleman filed a Motion for




                                            1
Summary Judgment. Fogleman first served the motion on Mr. Bach's attorney and later
                                                                               1
Mr. Bach after the Court granted his attorney's motion to withdraw as counsel.

                         Findings of Fact and Conclusions of Law

        Summary judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter oflaw." Tenn. R. Civ. P. 56.04 (2018).
         Fogleman must do one of two things to prevail on its motion for summary
judgment: (1) submit affirmative evidence that negates an essential element of Mr.
Bach's claim, or (2) demonstrate that Mr. Bach's evidence is insufficient to establish an
essential element of his claim. Tenn. Code Ann. § 20-16-101 (2018); see also Rye v.
Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If
Fogleman is successful in meeting this burden, Mr. Bach "may not rest upon the mere
allegations or denials of its pleading." !d. at 265. Rather, he must respond by producing
evidence that sets forth specific facts showing there is a genuine issue for trial. !d.; Tenn.
R. Civ. P. 56.06. He must do more than simply show that there is some metaphysical
doubt as to the material facts. Rye, at 265.

       To determine whether summary judgment is appropriate, the Court looks to
whether there are genuine issues of material fact on the essential elements of Mr. Bach's
claim. In doing so, the Court must review the evidence in the light most favorable to Mr.
Bach as the nonmoving party and draw all reasonable inferences favoring him. Payne v.
D and D Elec., 2016 TN Wrk. Comp. App. Bd. LEXIS 21, at* 12 (May 4, 2016).

       Here, Fogleman asserted Mr. Bach's claim for additional benefits is without merit
because he suffered no impairment and no physician has recommended further treatment.
Mr. Bach did not respond to the motion and has not come forward with any medical
proof demonstrating that he suffered permanent impairment or needs further treatment for
any of his alleged injuries. The Court concludes no genuine issue of material fact exists
and summary judgment is appropriate as a matter of law.

IT IS, THEREFORE, ORDERED as follows:
    1. Mr. Bach's claim is dismissed with prejudice.

    2. Fogleman shall pay court costs of $150.00 to the Court Clerk within five business
       days of this order becoming final.

    3. Fogleman shall prepare and submit a Statistical Data Form (SD2) within ten

1
  Mr. Bach did not attend the withdrawal hearing, but the Court reminded Mr. Bach of the summary
judgment hearing in its order.

                                               2
       business days of this order becoming final.

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


              ENTERED April 5, 2019.




                                           BRIAN K. ADDINGTON, JUDGE
                                           Court of Workers' Compensation Claims


                             CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on April 5, 20 19.

          Name              Certified    Via        Via    Service sent to:
                             Mail        Fax       Email
Evan Bach,                                                 5749 Natural Tunnel Pkwy.
Employee                       X                           Duffield, VA 24244
Daniel Howard,
Employer's Attorney                                  X     daniel.howard@sa-trial.com




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                                 II
                                  I                                                       'I



                          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 ofthe 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 lndigency 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.
II                                                                                                                      I.
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                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-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 Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are:     ! ~                                                      li
                                                                                  I
                          '

        Rent/House Payment $              per month     Med icai/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

____ dayof _____________________ , 20_ __




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ _ __




LB-1108 (REV 11/15)                                                                          RDA 11082
