Lowe, Michael v. Barton Malow_The Fred Christen & Sons Company

FILED
Jul 16, 2025
07:34 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Michael Lowe ) Docket No. 2023-01-5778
)
v. ) State File No. 860360-2023
)
Barton Malow/The Fred Christen )
& Sons Company, et al. )
)
and )
)
Troy Haley, Administrator of the Bureau )
of Workers’ Compensation Subsequent )
Injury & Vocational Recovery Fund )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Thomas L. Wyatt, Judge )

Affirmed and Remanded

In this interlocutory appeal, the employee challenges the trial court’s order compelling
him to participate in a discovery deposition. At a scheduling conference, the employee
asked that an expedited hearing be set; however, the employer objected to setting the
hearing, citing the employee’s failure to update his written discovery responses, and it
requested the opportunity to depose the employee. Following that hearing, the trial court
issued an order granting the employer’s request and instructing the employee to attend a
discovery deposition. The employee has appealed. Having carefully reviewed the
record, we affirm the trial court’s order, find this appeal frivolous, and remand the case.

Judge Meredith B. Weaver delivered the opinion of the Appeals Board in which
Presiding Judge Timothy W. Conner and Judge Pele I. Godkin joined.

Michael Lowe, Dothan, Alabama, employee-appellant, pro se

Joseph T. Lynch, Knoxville, Tennessee, for the employer-appellee, Barton Malow/The
Fred Christen & Sons Company

Allison D. Lowry, Knoxville, Tennessee, for the appellee, Subsequent Injury Fund

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Memorandum Opinion 1

Michael Lowe (“Employee”), a resident of Alabama, filed a petition for benefit
determination on August 22, 2023, stating he fell off a roof on September 17, 2022, while
working for Barton Malow/The Fred Christen & Sons Company (“Employer”) on a job
site in Spring Hill, Tennessee. Employee alleged pelvic, right leg, and right shoulder
fractures as a result of the accident and sought medical treatment, temporary and
permanent disability benefits, and vocational rehabilitation.

At a status conference in March 2024, at which Employee was represented by
counsel, the parties indicated to the court that they were ready to proceed to mediation.
Despite reaching a tentative settlement agreement during mediation, they were unable to
reach a final settlement for approval by the court. After mediation, counsel for Employee
requested and was given permission from the trial court to withdraw from the case.
Thereafter, Employee, representing himself, filed a Request for Expedited Hearing
accompanied by a Rule 72 declaration stating: “I am of sound mind” and “This
conclude[s] my affidavit. Reserve my rights UCC 1-307.” At another status conference
in July 2024, the trial court explained it could not set an expedited hearing because the
Rule 72 declaration was insufficient. The court encouraged Employee to contact an
ombudsman, and it set another status conference for October 2, 2024.

Before the October status conference could take place, Employee filed a Request
for “Writ of Mandamus” with the trial court. The trial court denied the request on
jurisdictional, procedural, and other grounds, and it set another status conference for
December. Before that status conference, upon motion of Employer, the court issued an
order on November 26, 2024, compelling Employee to supplement his discovery
responses and provide signed medical records authorizations to Employer within thirty
days. The status conference proceeded on December 2, 2024, at which time Employee
challenged Employer’s contention that he had been placed at maximum medical
improvement. Given the information before it, the trial court again encouraged
Employee to speak with an ombudsman, and it set a scheduling hearing for January 2025.

It appears from the record that, instead of holding a scheduling hearing in January,
the trial court set a February 2025 hearing to consider a motion for sanctions filed by
Employer. Following that hearing, the trial court determined Employee had not complied
with its November 26 order to supplement his written discovery responses and sanctioned
Employee by limiting his witnesses to those already identified in his discovery responses
pursuant to Tennessee Rule of Civil Procedure 37.02(B). Employee attempted to appeal
that order, but he did not send his notice of appeal to the correct email address for the
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“The appeals board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the appeals board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Tenn. Comp. R. & Regs. 0800-02-22-.03(1) (2023).
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Clerk of the Court of Workers’ Compensation Claims. After the notice of appeal was
eventually received and filed, we dismissed it as untimely and remanded the case to the
trial court.

On remand, the trial court held a status conference on May 12, 2025. At that time,
Employee asked the court to schedule an expedited hearing. Conversely, Employer asked
to depose Employee prior to any such expedited hearing in order to assess the issues for
that hearing, as Employee had not supplemented his Rule 72 declaration or his discovery
responses despite having been ordered by the court to do so. The court ordered
Employee to participate in a deposition on June 30, 2025, in Chattanooga, Tennessee, and
Employee has appealed.

Employee contends that by declining to set his request for expedited hearing and
reinstate temporary benefits, the trial court has violated his “right to due process.” We
conclude, however, that any such allegation is baseless given that Employee has not, to
date, filed a proper request for an expedited hearing that is adequately supported by an
affidavit or Rule 72 declaration as required by applicable regulations. Moreover,
Employee has failed to properly seek an expedited hearing despite having been notified
by the court that the request he filed was deficient and having been encouraged on more
than one occasion to seek assistance from an ombudsman provided by the Bureau. See
Tenn. Comp. R. & Regs. 0800-02-21-.15(1) (2023). Further, the trial court has not
denied Employee an opportunity to pursue benefits at an expedited hearing. Rather, due
to Employee’s failure to cooperate fully in discovery, the court has delayed setting any
such hearing and instead allowed Employer to depose Employee so it can seek the
information necessary before such a hearing can take place.

A trial court’s decisions regarding pretrial discovery are discretionary, and an
appellate court’s review of such a decision applies an “abuse of discretion” standard of
review. Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 42
(Tenn. 2005). An abuse of discretion is found if the trial court “applied incorrect legal
standards, reached an illogical conclusion, based its decision on a clearly erroneous
assessment of the evidence, or employ[ed] reasoning that causes an injustice to the
complaining party.” Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249
S.W.3d 346, 358 (Tenn. 2008). Employee has filed a document entitled “Do Not
Consent To Order Of Deposition” and a second document, entitled “Summary Of The
Facts,” which we choose to view as his appellate brief and reply brief. Both documents
focus on the merits of Employee’s case and his desire for further medical and temporary
disability benefits. They provide no legal authority or argument that the trial court’s
decision to order him to attend a discovery deposition prior to the setting of an expedited
hearing is an abuse of discretion.

In short, Employee has failed to comply with court orders to supplement his
written discovery responses. He has further failed to file a legally sufficient, adequately

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supported request for a hearing, despite the trial court’s explanation as to the deficiencies
of the one he did file. He has offered no legal argument as to why the trial court’s actions
constituted an abuse of discretion, and he has offered no legal authority supporting his
assertion of a due process violation. Based on the totality of the record, including the
actions of Employee, we conclude the trial court did not abuse its discretion in ordering
Employee attend a discovery deposition.

Finally, Employer has requested that we find this appeal to be frivolous. As we
have noted previously, a frivolous appeal is one that is devoid of merit or brought solely
for delay. Yarbrough v. Protective Servs. Co., Inc., No. 2015-08-0574, 2016 TN Wrk.
Comp. App. Bd. LEXIS 3, at *11 (Tenn. Workers’ Comp. App. Bd. Jan. 25, 2016).
“[P]arties should not be required to endure the hassle and expense of baseless litigation.
Nor should appellate courts be required to waste time and resources on appeals that have
no realistic chance of success.” Id. at *10-11 (citations omitted). We conclude
Employee’s appeal is devoid of merit and is frivolous. However, in considering the
totality of the circumstances, we exercise our discretion not to award attorneys’ fees or
other expenses for Employee’s frivolous appeal on this occasion. See Tenn. Comp. R. &
Regs. 0800-02-22-.09(4) (2023).

Accordingly, the trial court’s order is affirmed, and the case is remanded. Costs
on appeal have been waived.

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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Michael Lowe ) Docket No. 2023-01-5778
)
v. ) State File No. 860360-2023
)
Barton Malow/The Fred Christen )
& Sons Company, et al. )
)
and )
)
Troy Haley, Administrator of the Bureau )
of Workers’ Compensation Subsequent )
Injury & Vocational Recovery Fund )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Thomas L. Wyatt, Judge )

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 16th day of
July, 2025.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Michael Lowe X wesleyavenue1467@gmail.com
Joseph Lynch X joe.lynch@petersonwhite.com
brandi.baty@petersonwhite.com
Allison Lowry X allison.lowry@tn.gov
Thomas L. Wyatt, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims

Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov