                                                                                              FILED
                                                                                             Sep 04, 2019
                                                                                            02:16 PM(CT)
                                                                                          TENNESSEE COURT OF
                                                                                         WORKERS' COMPENSATION
                                                                                                CLAIMS




               TENNESSEE BUREAU OF WORKERS’ COMPENSATION
              IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                               AT MEMPHIS

DONALD THOMAS,                                        )     Docket No.: 2018-08-0604
        Employee,                                     )
v.                                                    )
SALMON BROTHERS, LLC,                                 )     State File No.: 22160-2018
        Employer,                                     )
And                                                   )
ACE AMERICAN INS. CO.,                                )     Judge Deana Seymour
        Carrier.                                      )


                                EXPEDITED HEARING ORDER


       The Court conducted an Expedited Hearing on August 15, 2019, to address Mr.
Thomas’s claim for additional temporary disability benefits. 1 Salmon Brothers asserted
he was not entitled to the requested benefits because it was owed a credit against the
temporary disability for mistaken mileage payments. 2 The Court rejects Salmon
Brothers’s argument and holds Mr. Thomas established likelihood of success at a hearing
on the merits regarding his request for additional temporary disability benefits.

                                            History of Claim

       Mr. Thomas injured his back at Salmon Brothers. He received authorized
treatment from Drs. John Hayes and Thomas Giel.

       From March 27 to April 3, Dr. Hayes restricted Mr. Thomas from driving due to
functional limitations. On April 3, Dr. Hayes released Mr. Thomas to full duty. A week
later Mr. Thomas returned to Dr. Hayes. During that visit, Dr. Hayes again restricted Mr.
Thomas from driving.


1
    The parties agreed to a compensation rate of $911.66.
2
  Salmon Brothers initially denied that any additional temporary disability benefits were owed. However,
at the hearing, it agreed it owed temporary disability benefits in the amount of $862.33.

                                                      1
       Dr. Giel began treating Mr. Thomas on April 26 and restricted him to “[n]o lifting
over 40 lbs.” On May 24, Dr. Giel released Mr. Thomas to full duty.

      At the hearing, Mr. Thomas introduced work-status forms noting his restrictions
from March 27 to April 2 and from April 10 to May 24. He also introduced check stubs
showing temporary disability payments for those periods. The stubs indicated Mr.
Thomas received benefits from March 30 to April 2 and from April 20 to May 24. 3

       Mr. Thomas testified he started a light-duty position in April making $9.00 per
hour and that he worked in this light-duty capacity for 94.5 hours over a five-week
period. On cross-examination, he denied working for any company other than Salmon
Brothers.

       For its part, Salmon Brothers agreed it owed Mr. Thomas $1,059.99 in unpaid
temporary disability benefits from April 10 through April 20. It also admitted a weekly
shortfall of $10.33 in temporary partial disability benefits paid between April 20 and May
24, which totaled $51.65 for the five-week period ($10.33 x 5 = $51.65). However,
Salmon Brothers contended it mistakenly paid Mr. Thomas $249.31 for mileage
reimbursement. Specifically, it argued Mr. Thomas’s mileage requests showed his
medical providers were within fifteen miles of his residence or workplace. Tenn. Code
Ann. § 50-6-204(a)(3)(I)(6)(A) (2018). Further, Salmon Brothers argued Mr. Thomas
was concurrently employed by XPO Logistics where he earned an average weekly wage
of $254.51, which should be considered in calculating the amount of temporary disability
benefits it owed. 4

      In its calculations, Salmon Brothers considered its total underpayment of
$1,111.64 ($1,059.99 + $51.65) and its mistaken payment of $249.31 for mileage of
$249.31. Based on these calculations, Salmon Brothers contended it owed Mr. Thomas
$862.33 in additional temporary disability benefits ($1,111.64 - $249.31).

                          Findings of Fact and Conclusions of Law

      At an Expedited Hearing, Mr. Thomas must provide sufficient evidence that he
would likely prevail at a hearing on the merits. McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).


3
  The first payment totaled $520.95 for March 30 to April 2 and the second payment totaled $3,658.30 for
temporary benefits at a weekly rate of $731.66 from April 20 to May 24.
4
  Mr. Thomas testified that the XPO Logistics pay stubs introduced into evidence as Exhibit 3 were
connected to a subcontract Salmon Brothers had with XPO. He stated that he might have driven the routes
under the subcontract, but he did not receive the money documented in the stubs. Instead, that money
went to Salmon Brothers for running the route for XPO.

                                                   2
       In considering Mr. Thomas’s request for additional temporary disability benefits,
the Court first notes his medical providers never totally restricted him from work.
Instead, they placed him on restricted duty. Thus, his recovery, if any, is in temporary
partial disability benefits (TPD). These benefits are payable during the time the
injured worker is able to resume some gainful employment but has not reached
maximum recovery. Barrett v. Lithko Contracting, Inc., 2016 TN Wrk. Comp. App.
Bd. LEXIS 70, at *8 (June 27, 2016). To prove entitlement to these benefits, Mr.
Thomas must show his treating physician released him to return to work with restrictions
before maximum medical improvement, and Salmon Brothers either (1) could not return
him to work within his restrictions or (2) could not provide restricted work for a
sufficient number of hours and/or at a rate of pay equal to or greater than his average
weekly wage on the date of his injury. See Jones v. Crencor Leasing and Sales, 2015 TN
Wrk. Comp. App. Bd. LEXIS 48, at *7-8 (Dec. 11, 2015).

       Here, Mr. Thomas established his medical providers restricted his work activities
from March 27 to April 2 and from April 10 to May 24. He received temporary disability
benefits from March 30 to April 2 and from April 20 to May 24. However, Mr. Thomas
never received temporary disability benefits from April 10 to April 19. Salmon Brothers
agreed Mr. Thomas should have received temporary disability benefits during this period.
Therefore, the Court finds Mr. Thomas is likely to prevail in proving entitlement to these
benefits.

       However, the Court declines to use information from the XPO pay stubs to
calculate Mr. Thomas’s temporary disability benefits as Salmon Brothers suggested. Mr.
Thomas explained that the pay stubs introduced into evidence were connected to a
subcontract Salmon Brothers had with XPO. He testified that these stubs did not
document any compensation he received that would indicate the wages he might have
earned in his disabled condition. Salmon Brothers failed to show otherwise.

       Thus, the Court relies on Mr. Thomas’s testimony in calculating his TPD from
April 10 to April 19. According to Mr. Thomas, he earned $9.00 per hour for 94.5 hours
total over a five-week period encompassing these dates. Thus, he earned approximately
$170.10 per week in this role.

       Considering these average weekly earnings, the Court turns to Tennessee Code
Annotated section 50-6-207(2)(B), which states that TPD is two-thirds 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. Applying that formula,
Mr. Thomas is entitled to $798.66 per week in TPD benefits ($1,367.49 - $170.10 =
$1,197.39 x .667 = $798.66), and for the ten-day period between April 10 and April 19,
he is entitled to $1,140.94 ($798.66 ÷ 7 = $114.09 x 10 = $1,140.94).

       Further, since Salmon Brothers only paid Mr. Thomas at a weekly rate of $731.66

                                            3
for April 20 through May 24, the Court finds he is likely to prevail in proving a shortfall
of $67.00 per week ($798.66 - $731.66 = $67.00), which totals $335.00 for that five-
week period. Adding $1,140.94 for April 10 to April 19 and $335.00 for underpayment
between April 20 and May 24, the Court holds that Mr. Thomas is entitled to $1,475.94
in TPD.

       Turning to Salmon Brothers’s request for a credit due to mistaken mileage
payments, the Court finds Mr. Thomas was not entitled to mileage payments.
Specifically, the evidence presented failed to show that any of his medical providers were
located outside a radius of fifteen miles from Mr. Thomas’s residence or workplace. See
Tenn. Code Ann. § 50-6-204(a)(3)(I)(6)(A).

       However, the Court holds that Salmon Brothers did not establish the amount of an
alleged credit for its mistaken mileage payments. The only documentation presented
related to mileage payments was a check stub indicating that Mr. Thomas received
$67.21 in travel expenses. Salmon Brothers claimed that it paid an additional $249.31 in
mileage to Mr. Thomas, but it provided no evidence of this payment.

      Salmon Brothers also failed to establish that it is entitled to a credit against Mr.
Thomas’s temporary disability benefits. It cited McCall v. Nat’l Health Corp., 100
S.W.3d 209, 213 (Tenn. 2003), as authority for the Court to order an employee to
reimburse an employer for any improperly paid benefits. Acknowledging that McCall
does not directly address erroneously paid mileage, Salmon Brothers contended that the
overpaid benefits in that case (temporary disability benefits) were analogous. The Court
does not necessarily disagree.

       Instead, the Court observes that credits for improperly paid benefits are calculated
against permanent, not temporary benefits. Tennessee Code Annotated section 50-6-
207(2)(C) allows a credit against permanent disability if an employer pays temporary
disability benefits after the date the employee reached maximum medical improvement.
Tennessee Code Annotated section 50-6-207(1)(B)(ii) allows a credit against the
permanent award when an employer continues paying the employee’s regular wage
during a period of temporary disability. Courts have also ordered credits against
permanent disability where an employer initially miscalculated the injured employee’s
compensation rate. See Jones v. Crenshaw, 645 S.W.2d 238, 241 (Tenn. 1983). Salmon
Brothers points to no authority allowing a credit against temporary disability for mistaken
mileage payments. Therefore, the Court denies its request for a credit for mileage
payments against the award of temporary disability benefits at this interlocutory stage.




                                            4
IT IS, THEREFORE, ORDERED as follows:

  1. Salmon Brothers’s request for a credit is denied, and Mr. Thomas is entitled
     additional temporary disability benefits of $1,475.94.

  2. This case is set for a Scheduling Hearing on October 28, 2019, at 8:30 a.m.
     central time. You must call toll-free at 866-943-0014 to participate in the
     Hearing. Failure to call might result in a determination of the issues without your
     participation.

     ENTERED September 4, 2019.



                                _____________________________________
                                JUDGE DEANA C. SEYMOUR
                                Court of Workers’ Compensation Claims




                                          5
                                       APPENDIX

 Exhibits:
    1. Work Activity Status Reports from Concentra Medical Centers, March 27, 2018,
       to April 26, 2018 (Collective)
    2. Check stubs for temporary disability benefits and mileage payments paid between
       April 9, 2018, and May 25, 2018 (Collective)
    3. XPO Logistics pay stubs, March 11, 2018, to April 14, 2018
    4. Receipt for faxes sent by Mr. Thomas on June 29, 2018
    5. Final Medical Report, dated July 11, 2019
    6. Mileage requested by Mr. Thomas


 Technical Record:
    1. Petition for Benefit Determination
    2. Dispute Certification Notice
    3. Order on Show Cause Hearing
    4. Request for Expedited Hearing, with attached Affidavit of Donald Thomas
    5. Order Setting Status Hearing
    6. Order Resetting Expedited Hearing
    7. Employer’s Pre-Hearing Brief



                            CERTIFICATE OF SERVICE

       I certify that a copy of this Order was sent as indicated on September 4, 2019.

Name                  Certified Fax      Regular    Email     Sent to
                      Mail               mail
Donald Thomas,           X       X                            1630 Portland Ave.
Employee                                                      Memphis, TN 38127
Tyler Waterfield,                                      X      tswaterfield@mijs.com
Employer’s Attorney



                                          _____________________________________
                                          Penny Shrum, Court Clerk
                                          Court of Workers’ Compensation Claims
                                          WC.CourtClerk@tn.gov


                                             6
