                                                                                    FILED
                                                                                  Jan 29, 2020
                                                                                  02:22 PM(ET)
                                                                              TENNESSEE COURT OF
                                                                             WORKERS' COMPENSATION
                                                                                    CLAIMS




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

Linda Spaulding,                                 )   Docket No.: 2019-01-0195
            Employee,                            )
v.                                               )
Avants Operations, LLC,                          )   State File No.: 65356-2018
           Employer,                             )
And                                              )
Employers Assurance Company,                     )   Judge Thomas Wyatt
            Carrier.                             )
                                                 )

      EXPEDITED HEARING ORDER DENYING TEMPORARY PARTIAL
                      DISABILITY BENEFITS


       This Expedited Hearing concerned whether Linda Spaulding is entitled to
temporary partial disability (TPD) benefits. Avants Operations, LLC, terminated TPD
benefits when Ms. Spaulding declined available work on the belief that Avants could not
accommodate the treating physician's restriction against working on a slippery floor. Ms.
Spaulding also asked for an order requiring Avants to authorize prescribed treatment
faster. For the reasons below, the Court holds Ms. Spaulding did not establish
entitlement to TPD benefits but did establish entitlement to ongoing medical benefits.

                                    History of Claim

        Avants hired Ms. Spaulding to work as a cook at a Zaxby's restaurant. On April
18, 2018, she arrived for her first day of work but suffered injuries when she fell on a wet
floor before clocking in. Just before her arrival, Avants's manager, Buck Crotts, had
tried to remove water from the floor where Ms. Spaulding fell. The water had gathered
while Mr. Crotts rinsed salad items. Ms. Spaulding testified her right leg "bent double"
under the weight of her body when she struck the floor.
      Ms. Spaulding selected orthopedist Dr. Todd Bell from a panel. Dr. Bell
performed surgery for a right-patellar chondroplasty and repairs of tears in her quadriceps
muscle and lateral meniscus. Ms. Spaulding used crutches for five months after surgery,

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which led to callouses and bruises on both hands and bilateral hand and arm pain. She
reported these problems to Dr. Bell, but he did not provide treatment.
       Dr. Bell eventually returned Ms. Spaulding to restricted-duty work on December
3, but he only took her right-leg injury into consideration when doing so. He prohibited
her from working on slippery floors, walking or standing for over one hour per day, and
bending, squatting, or climbing. These restrictions remained in place until Dr. Bell
ordered functional-capacity testing several months later.
        Avants offered to accommodate the restrictions by allowing Ms. Spaulding to sit
in a chair while working. Other employees would bring her everything she needed to
perform her job. As to the restriction against working on a slippery floor, Mr. Crotts
testified that Avants would not assign Ms. Spaulding to work in the kitchen, where most
spills occurred, and he purchased rubber mats to provide her a non-slippery surface in her
immediate work area. 1 He also stated Ms. Spaulding could avoid passing through the
kitchen for bathroom breaks by walking around the restaurant's exterior and using the
customers' bathroom. He said management could punch the time clock for Ms.
Spaulding.

      Ms. Spaulding argued that these accommodations did not reasonably protect her
from another fall because:

    • she fell in the same area where she would be working;
    • she fell despite wearing shoes with non-slip soles;
    • she fell even after Avants's manager had just cleaned up water from the floor
      where she fell;
    • she slipped again on a slick floor when she came in after her injury;
    • Mr. Crotts conceded that spills occur every day in the food preparation area of the
      restaurant;
    • her work injuries make another fall more dangerous to her; and
    • three rubber mats were insufficient to cover all areas of the floor on which she
      might need to walk.

Ms. Spaulding also testified that, at the time Avants offered her restricted duty, she could
not perform activities of daily living without experiencing excruciating upper-extremity
pam. She contended that pain would preclude her from food preparation.

      Avants paid TPD benefits for two months while the parties debated
accommodations. Finally, Avants sent Ms. Spaulding a letter requiring that she report to
work on February 1. Avants terminated TPD benefits when she failed to do so.

1
 Ms. Spaulding testified that Mr. Crotts did not inform her about purchasing mats. Mr. Crotts testified to
the contrary.

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       Regarding ongoing treatment, Dr. Bell referred Ms. Spaulding to orthopedist Dr.
Mark Freeman to determine whether she needed further knee treatment. Dr. Freeman
reviewed a post-surgery MRI and concluded that she did not need a knee replacement.
On the cause of her continued symptoms, Dr. Freeman wrote, "[i]t is possible that her
injury di~ aggravate her underl?'in.g degem~rative dis~~se but she had .pre-existin§
degenerative changes that were stgruficant pnor to her mJury or quad reparr surgery."
Ms. Spaulding presented no evidence of any proposed treatment for her right leg.

       Turning to Ms. Spaulding's upper extremities, Avants initially sent her to Dr.
Peter Lund, who stated that her problems were not related to using crutches. Avants then
allowed Ms. Spaulding to see hand surgeon Dr. Marshall Jemison for a second opinion. 3
He ordered nerve-conduction testing and diagnosed mild carpal-tunnel syndrome, trigger-
finger conditions, and bilateral thumb arthritis. Dr. Jemison concluded that all diagnoses
other than the arthritis were "primarily related to prolonged crutch use" and ordered
surgery on the left hand and an injection on the right.

       Avants announced during the hearing that it authorized Dr. Jemison to treat Ms.
Spaulding's compensable upper-extremity problems, but it submitted the proposed
treatment to utilization review, which delayed treatment. However, Avants was in the
process of scheduling the surgery authorized by utilization review. Avants's counsel also
confrrmed that it would reinstate temporary benefits benefits if Ms. Spaulding became
disabled from working following surgery.

        Regarding work restrictions, Ms. Spaulding is no longer under those placed by Dr.
Bell. On October 9 2019, she underwent a functional capacity evaluation that resulted in
permanent restrictions on her ability to lift, push, pull, stand, and walk, but she is not
restricted from working on slippery floors.

                          Findings of Fact and Conclusions of Law

      Ms. Spaulding must come forward with sufficient evidence from which the Court
can determine she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. §
50-6-239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). The Court frrst considers her claim for
temporary partial disability benefits.

      The Workers' Compensation Law provides benefits for partial disability when an
employee is able to work, but only under restrictions. The Law entitles recovery of

2
  Before she worked for Avants, Ms. Spaulding underwent several surgeries for alignment problems with
her right patella and to repair tom cartilage and a tom meniscus in her right knee.
3
  It was not clear if Ms. Spaulding selected Dr. Jemison from a panel.

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"sixty-six and two thirds percent (66 2/3%) of the difference between the average weekly
wage of the worker at the time of the injury and the wage the worker is able to earn in the
worker's partially disabled condition." Tenn. Code Ann. § 50-6-207(1)(B). To recover,
Ms. Spaulding must show she is likely to establish that: (1) she suffered a disability from
working as the result of a compensable injury; (2) a causal connection exists between the
injury and the inability to work; and (3) the duration of the period of disability. Shepherd
v. Haren Const. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 15, at *13 (Mar. 30,
2016).

       Here, the crucial issue is whether the circumstances justified Ms. Spaulding's
refusal to return to work in a restricted-duty position. She contended that Avants could
not ensure her work on a non-slippery floor as required by Dr. Bell, and thus her refusal
to return was reasonable. She further argued she was disabled because she could not
perform food preparation because of upper-extremity pain. Avants argued that Ms.
Spaulding artificially created her own disability by not trying to see if its restricted-duty
offer accommodated her restrictions. Upon consideration of the evidence presented, the
Court holds Ms. Spaulding did not carry her burden on this issue.

        In determining an employee's reasonableness in declining restricted work, the
Court must look both at the reasonableness of an employer's offer of restricted-duty work
in light of the employee's restrictions and, when the employee fails to avail herself of the
restricted duties offered, the reasonableness of the employee's decision to decline the
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work. See Hardin v. Royal & Sunalliance Ins., 104 S.W.3d 501, 505 (Tenn. 2003).

       Here, the Court holds that Ms. Spaulding will not likely prevail at trial in showing
that Avants's restricted-duty job offer was unreasonable. The Court notes that Avants
provided a chair to accommodate the standing/walking restriction imposed by Dr. Bell,
and it permitted other employees to bring items to her so she could avoid walking for
those items herself. While Avants could not ensure an entirely non-slippery work
environment, it purchased mats to create a non-slippery floor in Ms. Spaulding's
immediate work area and fashioned her job duties to prevent her need to walk in areas
where spills were more likely to occur.

       The Court further holds that Ms. Spaulding will not likely prevail in showing that
she reasonably declined Avants's offer of a restricted-duty job. In Tryon v. Saturn Corp.,
254 S.W.3d 312, 329-330 (Tenn. 2008), the Supreme Court discussed numerous cases
considering the award or denial of benefits following an injured employee's declination
of restricted-duty work. The circumstances leading to denial included an employee's
decision to decline work because of anxiety about exceeding work restrictions and an
employee's failure to return to work because he believed the employer was going to sell

4
 The Hardin decision arose under the previous law's application of a cap on permanent partial disability
benefits. The Court considers the analysis of the underlying issue here to raise identical considerations.

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the business to someone who would fire him. In Iacono v. Saturn Corp., No. M2008-
00139-WC-R3-WC, 2009 Tenn. LEXIS 45, at *18 (TN. Wrk. Comp. Panel Mar. 12,
2009), the Panel affmned a denial of benefits when the employee declined restricted-duty
work because he feared he would be fired for an inability to work "at 100%."

       The Court recognizes that Ms. Spaulding's fall caused serious injury, so she was
genuinely concerned about re-injury. However, her refusal to try to determine if
Avants's offer would accommodate her restrictions precludes the Court from deciding
her TPD claim in her favor. With no experiential context to consider here, the Court can
only speculate whether she could perform the restricted-duty job Avants offered her.

       In accordance with the above authority, the Court, at this time, denies Ms.
Spaulding's claim for TPD benefits. The Court is not ignoring Ms. Spaulding's
testimony about disability from upper-extremity pain. However, she did not present
medical evidence establishing disability or restrictions based on this pain.

       Regarding the timeliness of authorizing medical benefits, it appears delays have
occurred, first, by an unfavorable causation opinion and, more recently, by the utilization
review process. The Court encourages Avants to act with reasonable promptness as to
the provision or denial of treatment prescribed by authorized physicians. Here, however,
Ms. Spaulding did not show that Avants denied any of Dr. Jemison's treatment
recommendations. Therefore, the Court is not in a position to make a decision regarding
medical benefits.

IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Spaulding's claim for temporary partial disability benefits is, at this time,
       denied.

   2. Avants shall provide reasonable and necessary treatment of Ms. Spaulding's work
      injuries in a timely fashion in view of statutory procedures.

   3. This case is set for a Status Hearing at 10:00 a.m. Eastern Time on April 30,
      2020. You must call (615) 741-3061 or toll-free at (855) 747-1721 to participate
      in the Status Hearing. You must call in on the scheduled date and time to
      participate. Failure to call might result in a determination of the issues without
      your input.

   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

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      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 WCCompliance.Program ,tn.gov.

      ENTERED January 29, 2020.




                                  Court of Workers' Compensation Claims


                                      APPENDIX

Exhibits: The Court considered the following exhibits introduced as evidence during the
Expedited Hearing:

          1. Affidavit of Linda Spaulding
          2. Correspondence between Ms. Spaulding and employer/carrier
              representatives (admitted for identification-the Court did not consider this
              evidence under hearsay considerations)
          3. Return to work letter
          4. Physician's Care records
          5. Dr. Todd Bell's records
          6. Dr. Mark Freeman's records
          7. Dr. Marshall Jemison's records
          8. Dr. Peter Lund's records
          9. Functional Capacity Evaluation-Benchmark Physical Therapy
          10. Utilization review letter
          11. Interrogatory responses
          12.Bankruptcy records (admitted for identification-sustained relevancy
              objection)
          13.2018 Tax return (admitted for identification-sustained relevancy
              objection)
          14. List of Temporary Disability Benefits payments
          15. Utilization review letter-(overruled relevancy and hearsay objections)



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Technical record: The Court considered the following filings in its consideration of the
issues presented in the Expedited Hearing:

          1.   Petition for Benefit Determination
          2.   Dispute Certification Notice
          3.   Request for Expedited Hearing form
          4.   Employer's Position Statement and Exhibit List
          5.   Employee's addition to issues to the Dispute Certification Notice
          6.   Employer's Supplemental Exhibit List

                             CERTIFICATE OF SERVICE

      I certify that a copy of the Order was sent as indicated on January 29, 2020.

         Name               Certified   Email     Service sent to:
                             Mail
Linda Spaulding                X          X       eagleswingsfly@aol.com
Employee                                          P.O. Box 15345
                                                  Chattanooga, TN 3 7415

Benjamin Reese                            X       btr@smrw.com
Employer's Attorney




                                          Pen~h~k
                                          Wc. courtclerk@tn.gov




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