                                                                                                           FILED
                                                                                                      October 20, 2016

                                                                                                     TN COURT OF
                                                                                                 WORKERS' C O ~ IPENS ..'\.110
                                                                                                        CLAIMS

                                                                                                          Tim e·: !.M7 All

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

BRADLEY WILSON                                           )    Docket No.: 2015-07-0143
        Employee,                                        )
v.                                                       )    State File Number: 50922-2015
DANA HOLDING CORP.                                       )
        Employer.                                        )    Judge Amber E. Luttrell
                                                         )

                                  EXPEDITED HEARING ORDER


       This matter came before the Court upon the Request for Expedited Hearing
captioned "Motion to Terminate Temporary Total Disability Benefits" filed by Dana
Holding. This is the second Expedited Hearing on this claim. The present focus of this
case concerns Mr. Wilson's entitlement to temporary disability benefits. The central legal
issues raised by Dana are 1) whether Mr. Wilson was entitled to temporary disability
benefits beyond his attainment of maximum medical improvement under Tennessee Code
Annotated section 50-6-234(b), and 2) whether Mr. Wilson's termination foreclosed his
entitlement to temporary partial disability. For the reasons set forth below, the Court
holds Dana came forward with sufficient evidence supporting its position that Mr. Wilson
is unlikely to prevail at a hearing on the merits in establishing his entitlement to
temporary disability benefits after June 27, 2016.

                                             History of Claim'

        This case involves Mr. Wilson's claim for workers' compensation benefits for
bilateral carpal tunnel syndrome. Mr. Wilson provided notice to Dana of his alleged work
injury on June 4, 2015. Dana denied the claim contesting notice and medical causation.

        Following an in-person Expedited Hearing in December 2015, this Court entered

1
 Mr. Wilson previously filed a Request for Expedited Hearing seeking medical and temporary disability benefits.
Following an evidentiary hearing, the Court entered an Expedited Hearing Order Granting Medical Benefits and
Denying Temporary Disability Benefits on December 16, 2015. For context, the Court briefly summarized the
Court's previous findings in this Order. The full history of Mr. Wilson's claim set forth in the original Expedited
Hearing Order is incorporated by reference.
    an Order Granting Medical Benefits and Denying Temporary Disability Benefits on
    December 16, 2015. The Court concluded Mr. Wilson was entitled to medical benefits,
    but not temporary benefits at that time. Although the Court heard proof regarding reasons
    for Mr. Wilson's termination at that hearing, the Court did not resolve the issue since Mr.
    Wilson did not come forward with sufficient medical proof supporting his claim for
    temporary disability.

       Before the Court now is the renewed question of Mr. Wilson's right to temporary
disability benefits after reaching MMI and his right to temporary partial disability
benefits in light of his termination. The Court held an evidentiary hearing on Dana's
Expedited Hearing Request where Dana argued the law is unclear, specifically Tennessee
Code Annotated section 50-6-234 (20 15), regarding when an employer may cease
temporary disability benefits. Dana asked this Court to find Mr. Wilson was not entitled
to temporary disability benefits as of June 27, when Dr. Dolan placed Mr. Wilson on light
duty or at the latest August 25, when Dr. Dolan opined Mr. Wilson reached MMI. Mr.
Wilson contended that he was entitled to temporary disability benefits, even after his
MMI date, because Dana was unable to offer him a return to work.

            The Court turns now to the proof regarding these issues.

        Pursuant to this Court's December 15 order for medical benefits, Dana provided
Mr. Wilson medical treatment with Dr. Michael Dolan, an orthopedic surgeon. Dr. Dolan
performed carpal tunnel release surgery on Mr. Wilson's right arm on March 14, 2016,
and left arm on April 26, 2016. The parties agreed that Dana initiated temporary total
disability benefits to Mr. Wilson during his treatment with Dr. Dolan. 2

        The medical records admitted into evidence revealed Mr. Wilson saw Dr. Dolan
on June 6, 2016, for follow-up treatment and complained of ongoing symptoms in his
hands. At that time, Dr. Dolan intended to let Mr. Wilson return to work full duty. (Ex.
2.) Mr. Wilson returned on June 27 reporting swelling, significant pain, and difficulty
working. 3 As a result of this visit, Dr. Dolan assigned Mr. Wilson a twenty-pound lifting
restriction. !d. At the hearing, Jason Almond, Dana's Health and Safety Manager,
testified that Dana could have accommodated Mr. Wilson's twenty-pound light-duty
restriction had he not been terminated for violation of its attendance policy.

       Dr. Dolan subsequently released Mr. Wilson to full-duty work on July 27, and
opined Mr. Wilson reached MMI on August 25. !d. Mr. Almond further testified that, but
for Mr. Wilson's termination for cause, Dana would have returned him to a full-duty
position upon his final release to full-duty work on July 27.


2
    The parties did not indicate the date temporary total disabi lity benefits began.
3
    The Court notes the parties presented no proof concerning Mr. Wilson 's emp loyment status in June.

                                                            2
       Andrea Gooch, Dana's Human Resources Manager, testified by affidavit that
Dana terminated Mr. Wilson on May 1, 2015, for job abandonment after he violated the
company's three-day "no call-no show" attendance policy. (Ex. 1.) He was scheduled to
return to work from FMLA leave on April29, 2015; however, he did not return to work
and did not contact Dana for three consecutive days in violation of its attendance policy.
He had also previously received formal counseling for attendance issues on February 7,
and August 11, 2014. !d.

        Mr. Wilson contended he did not return to work because his FMLA leave was
extended through May 13, 2015. However, Mr. Wilson conceded that he did not receive
the letter notifying him of his extended FMLA leave until sometime after his termination
date.

                        Findings of Fact and Conclusions of Law

       Our Workers' Compensation Appeals Board has reiterated the long-standing
principles that to establish entitlement to temporary total disability benefits, an employee
must prove (1) total disability from working as the result of a compensable injury; (2) a
causal connection between the injury and the inability to work; and (3) the duration of the
period of disability. Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978).
Temporary total disability benefits are terminated either by the ability to return to work or
attainment of maximum recovery. !d. Where the disability is not total, an employee may
recover temporary partial disability benefits if the employee "is able to resume some
gainful employment but has not reached maximum recovery." Williams v. Saturn Corp.,
No. M2004-01215-WC-R3-CV, 2005 Tenn. LEXIS 1032, at *6 (Tenn. Workers' Comp.
Panel Nov. 15, 2005); see Tenn. Code Ann. § 50-6-207(2) (2015).

       Even though an employee has a work-related injury for which temporary benefits
may be payable, an employer may still enforce workplace rules. Carter v. First Source
Furniture Grp., 92 S.W.3d 367, 368 (Tenn. 2002). Thus, an employee's termination due
to a violation of workplace rules may relieve the employer of its obligation to provide
temporary partial disability benefits, provided the termination was related to the
workplace violation. See Marvin Windows of Tenn., Inc. v. Gardner, No. W2011-01479-
WC-R3-WC, 2012 Tenn. LEXIS 403, at *9 (Tenn. Workers' Comp. Panel June 8, 2012).
When confronted with such a case, courts must "consider the employer's need to enforce
workplace rules and the reasonableness of the contested rules." !d. at 10. An employer
will not be penalized for enforcing a policy if the court determines "(1) that the actions
allegedly precipitating the employee's dismissal qualified as misconduct under
established or ordinary workplace rules and/or expectations; and (2) that those actions
were, as a factual matter, the true motivation for the dismissal." Durham v. Cracker
Barrel Old Country Store, Inc., No. E2008-00708-WC-R3-WC, 2009 Tenn. LEXIS 3, at
*9 (Tenn. Workers' Comp. Panel Jan. 5, 2009).


                                             3
      Applying these principles to this case, the Court considers the issue of when Mr.
Wilson's entitlement to temporary disability benefits ceased.

       Pursuant to the Court's December 15 Order for Medical Benefits, Dana provided
Mr. Wilson treatment with Dr. Dolan who, at some point, took Mr. Wilson off work as a
result of his work injury. Consequently, the parties agreed Dana initiated temporary total
disability payments. 4 Unsure of whether it could terminate temporary disability benefits
absent a court order and whether Tennessee Code Annotated section 50-6-234 applied,
Dana submitted it continued paying temporary benefits beyond Mr. Wilson's attainment
ofMMI on August 25.

        The earliest date Dana argued Mr. Wilson's entitlement to temporary disability
benefits ceased was June 27, when Dr. Dolan opined he could return to work with a
twenty-pound lifting restriction. Based upon Dr. Dolan's opinion that Mr. Wilson could
perform restricted duty work, the Court holds he did not qualify for temporary total
disability. Thus, the inquiry turns to whether Mr. Wilson qualified for temporary partial
disability benefits on June 27.

        Mr. Almond testified Dana could have accommodated Mr. Wilson by returning
him to a light-duty position within his lifting restriction but for his prior termination for
violation of its attendance policy. Ms. Gooch testified by affidavit that Dana terminated
Mr. Wilson for job abandonment on May 1, 2015, for violating its three-day "no call-no
show" attendance policy. (Ex. 1.) She testified Mr. Wilson received prior formal
counseling sessions on February 7, and August 11, 2014, for attendance issues.
Following FMLA leave, Mr. Wilson was released and scheduled to return to work on
April 29, 2015. He failed to return to work on that date and failed to contact Dana for
three consecutive days in violation of its attendance policies.

        Based upon the unrefuted testimony of Mr. Almond and Ms. Gooch, the Court
holds Dana came forward with sufficient proof that Mr. Wilson's actions precipitating his
dismissal qualified as misconduct under established or ordinary workplace rules and/or
expectations. Since Mr. Wilson did not give notice of a work injury until June 2015, the
Court further finds that his violation of Dana's attendance policy, and not the work
injury, was the true motivation for his termination on May 1. Dana is entitled to enforce
its workplace rules. Accordingly, the Court finds sufficient proof to conclude Mr. Wilson
did not qualify for temporary partial disability; thus, his entitlement to temporary
disability benefits ceased on June 27.

       Finally, Dana raised the issue of whether it was obligated to pay an additional
sixty days of temporary disability benefits subsequent to Mr. Wilson's attainment of

4
 The parties did not present any evidence of the time period Dana paid Mr. Wilson temporary total disability
benefits.

                                                     4
MMI under Tennessee Code Annotated section 50-6-234(b) (2015), which provides,

       After temporary disability benefits have commenced, when the injured
       employee reaches maximum medical improvement and the compensability
       of the injury has not been contested by the employer, then payments shall
       continue until the injured employee accepts or rejects a job offered by any
       employer at a wage equal to or greater than the employee's pre-injury wage
       ... In no case may temporary payments ... exceed the lesser of sixty (60)
       days or the value of the employee's permanent partial disability award
       calculated solely upon the medical impairment; provided, that these limits
       may be exceeded if agreed to by all the parties. The amount of the payment
       shall be credited against any permanent award.

      This statute provides for the continuation of temporary disability benefits for sixty
days beyond MMI when the compensability of the injury has not been contested by the
employer. Here, as Dana argued, compensability of Mr. Wilson's injury is contested by
the employer and workers' compensation benefits were only paid pursuant to this Court's
December 15 Order. Thus, based on a plain reading of the statute, Tennessee Code
Annotated section 50-6-234(b) does not apply.

       Based on the foregoing, the Court holds Dana came forward with sufficient
evidence supporting its position that Mr. Wilson is unlikely to prevail at a hearing on the
merits in establishing entitlement to temporary disability benefits after June 27, 2016.

       IT IS SO ORDERED.

      ENTERED this the 20th day       U:::'  ~
                                                   2~


                                  Judge Amber E. Luttrell
                                  Court of Workers' Compensation Claims

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."

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


                                            5
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.




                                         6
                                               APPENDIX

Exhibits:
   1. Affidavit of Andrea Gooch
   2. Medical records of Dr. Michael Dolan
   3. Dr. Bingham's electrodiagnostic report


Technical record: 5
   1. Employer's REH captioned Motion to Terminate Temporary Total Disability
      Benefits
   2. Employee's Motion to Deny Termination of Temporary Total Disability Benefits


                                   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 20th day
of October, 2016.

    Name                           Certified Via           Via        Service sent to:
                                   Mail      Fax           Email
    Bradley Wilson,                    X                      X       93 5 Chalk Hill Church Rd.
    Employee                                                          Camden, Tennessee 38320
                                                                      Bwoldschool65@yahoo.com
    Terri Bernal, Esq.                                        X       tbemal@wimberly lawson. com;
    Employer's Counsel                                                igreen@.wimberlv l.awson .com



                                                         ·urn, Clerk of Court
                                                  Court    orkers' Compensation Claims
                                                  WC.CourtClerk@tn.gov


5
   The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.




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