                                                                                               FILED
                                                                                             Jun 10, 2019
                                                                                             03:48 PM(ET)
                                                                                         TENNESSEE COURT OF
                                                                                        WORKERS' COMPENSATION
                                                                                               CLAIMS




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

Elizabeth Harrison,                                    )   Docket No.: 2018-01-0699
            Employee,                                  )
v.                                                     )
Chattanooga Staffing,                                  )   State File No.: 58404-2018
            Employer,                                  )
And                                                    )
Technology Insurance Co.,                              )   Judge Audrey Headrick
            Carrier.                                   )


                                 EXPEDITED HEARING ORDER


       The Court convened an Expedited Hearing on June 4, 2019. The issue is whether
Ms. Harrison is likely to establish at trial that she is entitled to temporary partial disability
benefits. Chattanooga Stafting disputes her entitlement to benefits, asserting she chose
not to accept its offer of light-duty work. 1 For the reasons below, the Court awards
temporary disability benefits.

                                            History of Claim

       While working as a caregiver for Chattanooga Staffing on July 16, 2018, Ms.
Harrison experienced a tearing/burning sensation across her neck into her left shoulder
while using both arms to move a paraplegic client. She reported the injury, and
Chattanooga Staffing instructed her to go to Physicians Care. 2

      Instead, Ms. Harrison sought treatment with Dr. Andrew Mendoza on July 18,
who prescribed medication and provided her with a sling. She then went to Physicians

1
 Chattanooga Staffing did not dispute her entitlement to temporary total disability benefits from April 9,
2019, forward, which is when Dr. Alex Sielatycki, panel physician, took Ms. Harrison completely off
work.
2
    Ms. Harrison later selected Physicians Care from a panel.


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Care on July 23, and the provider restricted her to right-arm use only with continued use
of the sling as needed.

       Physicians Care kept Ms. Harrison on the same restriction until it referred her to
Dr. Justin Arnold, an orthopedist, on August 22. However, she also saw Dr. Mendoza on
that day, and he retroactively took Ms. Harrison completely off work from July 18 "until
she has complete return of function in her L arm and shoulder." After seeing Dr. Arnold
on August 29, he restricted Ms. Harrison to no lifting with her left arm and no overhead
work. Both parties offered testimony regarding these restrictions and their application to
Ms. Harrison's work.

        Suzanne Jesucat, Director of Chattanooga Staffing, testified through a December 3
written declaration. She learned of Ms. Harrison's restrictions on August 30 and called
her the same day to offer her light-duty beginning on August 31, which Ms. Harrison
refused. Ms. Jesucat stated the light-duty consisted of warming meals, performing very
light housework, and accompanying a client to doctor appointments. Ms. Harrison
testified she does not recall speaking with either Ms. Jesucat or anyone else from
Chattanooga Staffing on August 30.

        Separate from Ms. Jesucat's written declaration, a letter signed by her on
November 29 provided additional details about the light-duty offered. She stated the
"light duty client" was someone Ms. Harrison knew since 2016, who was fully mobile
and mostly independent. Ms. Jesucat indicated the work involved two- and three-hour
shifts.

       Ms. Harrison disputed Ms. Jesucat's assertions regarding the abilities of this client.
She stated that her now-deceased aunt, Annie Mae Jones, was her only permanent client
since 2016. Ms. Harrison stated that Ms. Jones suffered a debilitating stroke on July 9,
2018, and afterward she required extensive assistance.

       Aside from Ms. Jones, Ms. Harrison's other clients were "fill-in" clients. When
asked about Barbara Kohler, a fill-in client, Ms. Harrison stated that she assisted Ms.
Kohler for approximately two to three months in 2017. Even if the unnamed client
referenced by Ms. Jesucat were Ms. Kohler, Ms. Harrison stated that caring for her
required use of both arms. She stated she performed the following tasks for Ms. Kohler:
(1) cooked meals with an iron skillet; (2) cleaned her kitchen; (3) assisted her into and out
of the shower and washed her back; (4) performed housecleaning; (5) applied lotion to
her body; and, (6) assisted her in dressing, including socks, shoes, and disposable
undergarments. Further, Ms. Harrison testified she had to use both arms to assist Ms.
Kohler even when seated because Ms. Kohler was "weaving" and "unsteady."

      After Ms. Jesucat's call to Ms. Harrison on August 30, Chattanooga Staffing
stopped her temporary disability benefits on August 31. The parties agreed that Ms.

                                              2
Harrison received temporary partial disability benefits from July 23 through August 31 at
the weekly compensation rate of $104.14.            However, they agreed her correct
compensation rate is $135.30. 3

                         Findings of Fact and Conclusions of Law

                                       Standard Applied

        At an expedited hearing, Ms. Harrison must present sufficient evidence to prove
she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(l)
(20 18). The Court holds she did.

                                Temporary Disability Benefits

       Ms. Harrison requested temporary disability benefits.            The Court grants her
request.

       Ms. Harrison is eligible for TPD benefits if she earned less than her average
weekly wage due to work restrictions. See Tenn. Code Ann. § 50-6-207(2)(A). The
Court must consider the reasonableness of Chattanooga Staffing in attempting to return
her to work and the reasonableness of Ms. Harrison in failing to return to work. Lasser v.
Waste Mgmt., Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 20, at *14 (may 24, 2018).

       Here, Ms. Harrison's unrebutted testimony was that her aunt was the only
permanent client she consistently cared for from 2016 forward, who had a debilitating
stroke the week before the July 16, 2018 work injury. Even if the unnamed client
referenced by Ms. Jesucat were Ms. Kohler, Ms. Harrison's unrebutted testimony proved
that Ms. Kohler's caregiver must use both arms to care for her. When considering the
testimony and reasonableness of the actions of both parties, the Court finds that Ms.
Harrison's refusal to work the light-duty Chattanooga Staffing offered was reasonable.
Therefore, the Court holds she is entitled to temporary partial disability benefits from
September 1, 2018, through April 8, 2019.

IT IS, THEREFORE, ORDERED as follows :

    1. Chattanooga Staffing shall pay past-due temporary partial disability benefits at the
       weekly compensation rate of $135.30 in the lump-sum amount of $4,252.29 for
       the period from September 1, 2018, through April 8, 2019. It shall also pay Ms.
       Harrison $178.05 for the underpayment from July 23, 2018, through August 31,
       2018. As agreed by Chattanooga Staffing, it shall pay past-due temporary total

3
  Following the Expedited Hearing, Chattanooga Staffing filed a Motion to Reopen Proof. The Court
addressed that motion in a separate order.

                                                3
     disability benefits from April 9, 2019, through June 10, 2019, which totals
     $1,217.70. Further, Chattanooga Staffing shall deduct $62.00 for an outstanding
     child support lien upon receipt of proper documentation and submission of the lien
     balance, if any, from Ms. Harrison.

  2. Chattanooga Staffing shall continue to pay to Ms. Harrison temporary total
     disability benefits in regular intervals until she is no longer eligible for those
     benefits by reaching maximum medical improvement, by returning to work at a
     wage equal to or greater her average weekly wage, or by release without
     restrictions by Dr. Sielatycki.      Chattanooga Staffing's representative shall
     immediately notifY the Bureau, Ms. Harrison, and her counsel of the intent to
     terminate temporary disability benefits by filing Form C-26, citing the basis for
     the termination.

  3. This matter is set for a Status Hearing on Tuesday, August 13, 2019, at 10:00 a.m.
     Eastern Time. You must call 423-634-0164 or toll-free at 855-383-0001 to
     participate. Failure to call may result in a determination of the issues without your
     participation.

  4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
     with this Order must occur no later than seven business days from the date of entry
     of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3).
     The Insurer or Self-Insured Employer must submit confirmation of compliance
     with this Order to the Bureau by email to WCCompliance.Program@tn.gov no
     later than the seventh business day after entry of this Order. Failure to submit the
     necessary confirmation within the period of compliance may result in a penalty
     assessment for non-compliance.

  5. For questions regarding compliance, please contact the Workers' Compensation
     Compliance Unit via email at WCCompli aoce .Program c. ,tn. gov.

ENTERED June 10, 2019.




                                  u_AA~~ro odJA;_ctJI
                                 Judge Audrey A eadnck
                                 Court of Workers' Compensation Claims




                                           4
                                     APPENDIX

Exhibits:
   1. Affidavit of Elizabeth Harrison
   2. First Report
   3. Wage Statement
   4. Panels
   5. Notice of First Payment of Compensation
   6. Written Declaration of Suzanne Jesucat
   7. Medical records of Elizabeth Harrison with a Table of Contents:
          a. DACHC UMA Clinic
          b. Physicians Care
          c. Justin M. Arnold, M.D.
          d. J. Alex Sielatycki, M.D.
   8. Medical records of Andrew E. Mendoza, M.D.
   9. Suzanne Jesucat's letter dated November 29, 2018
   10. Photo of Annie Mae Jones
   11. Job description (ID Only 1)
   12. Text messages (ID Only 2)

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Notice of Show Cause Hearing
   4. Show Cause Order
   5. Request for Expedited Hearing
   6. Notice of Expedited Hearing
   7. Motion to Continue
   8. Pre-Hearing Brief of Employer and Insurer
   9. Order Granting Motion to Continue
   10. Order Setting Expedited Hearing
   11. Second Pre-Hearing Brief of Employer and Insurer
   12. Employer's Motion to Quash Employee's Subpoena of Suzanne Jessicat to Testify
   B. Employer's Amended Motion to Quash Employee's Subpoena of Suzanne Jessicat
       to Testify
   14. Notice of Appearance
   15. Witness and Exhibit List
   16. Prehearing Brief of Elizabeth Harrison
   17. Amended List of Witnesses and Exhibits
   18. Order Granting Motion to Quash Employer's Subpoena of Suzanne Jessicat to
       Testify



                                           5
19. Amendment to Witness List
20. Motion to Reopen Proof
21. Objection of Elizabeth Harrison to Employer's Motion to Reopen Proof




                                       6
                             CERTIFICATE OF SERVICE

 I certify that a copy of this Expedited Hearing Order was sent as indicated below on June
 10, 2019.

            Name               Certified         Email   Service sent to :
                                Mail

Charles G. Wright, Jr.,                           X      wrightandwoodard@gmaiI. com
Employee Attorney
Fred Baker,                                       X      fbaker@.wimberlylawson.com
Courtney Hart,                                    X      chart[arwimberly lawson. com
Employer Attorneys




                                                                                             (



                                           ----+A~~~~~~----~~~~~~~~
                                           Penny hrum,
                                           Court of Workers' Compensation Claims
                                           WC.CourtClerk@tn.gov




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