                                                                                            FILED

                                                                                          TN COURT OF
                                                                                  l'irOR.KI.R S' C01l.IPE.N.S.:\TIO N
                                                                                              CLilllS

                                                                                            Tim.e·2 :27PM

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

Terry De Wayne King,                                 )    Docket No. 2017-06-1364
           Employee,                                 )
v.                                                   )
ARD Trucking Co., Inc.,                              )    State File No. 32021-2016
            Employer,                                )
And                                                  )
Cherokee Ins. Co., Inc.,                             )    Judge Kenneth M. Switzer
            Carrier.                                 )


                            COMPENSATION HEARING ORDER


        The Court held a compensation hearing in this case on March 20, 2018, addressing
three issues. The first is whether Terry King is entitled to temporary partial disability
(TPD) benefits from the time he suffered injury, March 17, 2016, until medical providers
placed him under restrictions on April 19, 2016. The second issue is whether Mr. King is
entitled to an increased award of permanent partial disability (PPD) benefits. 1 The third
issue is his entitlement to discretionary costs. For the reasons below, this Court holds Mr.
King is not entitled to TPD or an increased PPD award but is entitled to discretionary
costs.
                                      History of Claim

        Mr. King works as an over-the-road truck driver for ARD Trucking Co. On
March 17, 2016, he injured his shoulder at work. Mr. King testified that, for a month
after the injury, he continued working full-time, albeit with difficulty, completing every

1
 The Dispute Certification Notice additionally lists compensability and temporary total disability benefits
as issues. ARD stipulated to compensability at the compensation hearing. As for temporary total
disability benefits (TTD), the parties agreed ARD underpaid Mr. King and that ARD would pay $32.64
beyond the $254.95 it conceded it owed within its Prehearing Statement. Regarding the disputed TPD
benefit calculation, the parties designated two periods: period one, from the injury date until April 19;
and period two, from July 18 through September 23. ARD agreed that, if the Court held Mr. King were
entitled to TPD for period one, the amount ARD owes for that time is $485.3 I. See Ex. 4. As for period
two, ARD agreed to pay $263.38. Thus, the present dispute concerns only period one.

                                                     1
assigned run. On April 19, authorized providers placed him on restrictions, and ARD
started paying temporary disability benefits.

       ARD eventually authorized shoulder surgery. On September 21, Dr. Steven
LaDouceur recommended a three-week trial return to full-duty work. On November 2,
he placed Mr. King at maximum medical improvement and assessed a three-percent
whole-body impairment, which ARD did not contest. However, ARD disputed any
increased award based on this rating, pointing to Mr. King's earnings after he returned to
work in September.

        Before the injury, Mr. King earned $.39 per mile: $.14 for expenses and $.25 as
taxable income. ARD paid him the same mileage rate when he returned to full-duty
work. However, Mr. King testified that since returning to work, his earnings decreased
because he drove fewer miles. Veronica Harden, ARD's vice-president of operations,
testified that ARD hired Mr. King to drive a dedicated route, but during his absence, the
customer terminated a portion of that route. Mr. King conceded that when he returned to
work, he worked fulltime, running all the routes ARD requested and putting in all the
hours permitted by federal law. Ms. Harden confirmed that ARD gave Mr. King
alternative routes when he returned to full-duty. ARD treated him no differently than it
would any other similarly-situated employee, she said, explaining, "The goal is, the more
money Terry makes, the more money ARD makes. So our goal is to give him as many
miles as we safely and legally can."

       Mr. King acknowledged that shortly after he returned to work, he was involved in
an accident that resulted in a loss of "safety pay," per company policy. The policy
reduced his taxable mileage rate to $.235 for 180 days, but he returned to the previous
mileage rate in April 2017. Ms. Harden testified that all drivers learn during orientation
of a possible temporary safety-pay loss if they have an accident. Mr. King admitted the
accident and the safety-pay loss.

                                       Arguments

       For clarity, the Court identifies the specific Issues and parties' positions as
follows.

       Mr. King sought TPD for the time between the date of injury and when he first
received treatment on April 19. He argued that his disability began the moment he
suffered injury at work, regardless of whether he was under restrictions. ARD countered
that the Workers' Compensation Law requires that restrictions be in place to receive
TPD, and that Mr. King worked at full-duty, earning his full wages for this period -
"period one."



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        Mr. King asserted entitlement to the 1.35 multiplier because he earned less than
100 percent of his pre-injury wages at the end of the initial compensation period. He
compared the stipulated pre-injury average weekly wage to the amounts ARD paid him
after September 21, 2016. ARD countered that when Mr. King returned to work, it paid
him the same mileage rate it paid before the injury and offered a sufficient number of
routes, so that he worked full-time for all the hours he was legally able to work. The loss
of safety pay was due to Mr. King's negligence rather than his disability. Therefore, the
Court should cap his PPD award.

        Finally, Mr. King sought discretionary costs for the court reporters' expenses for
his deposition, Dr. LaDouceur's, and at the compensation hearing, as well as Dr.
LaDouceur's deposition fee. He argued that despite providing medical and temporary
disability benefits, ARD disputed compensability throughout the case. The post-
discovery Dispute Certification Notice listed compensability as an issue. Since the
medical records did not contain causation statements mirroring the statutory definition of
"injury," he needed to depose Dr. LaDouceur to support a compensability finding. In
response, ARD objected only to the costs of Dr. LaDouceur's deposition, arguing that it
filed organized, Bates-stamped copies of the medical records along with a table of
contents well in advance of his deposition, and they contained all the necessary
information to prosecute Mr. King's claim. Thus, the deposition was of no additional
benefit, and ARD should not be responsible for its cost.

                        Findings of Fact and Conclusions of Law

        The employee in a workers' compensation claim has the burden of proof on all
essential elements of the claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk.
Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). "[A]t a compensation hearing where
the injured employee has arrived at a trial on the merits, the employee must establish by a
preponderance of the evidence that he or she is, in fact, entitled to the requested benefits."
Willis v. All Staff, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015).

        Turning first to Mr. King's request for TPD for period one, "[t]emporary
restrictions assigned by physicians during an injured worker's medical treatment do not
establish an entitlement to continued temporary disability benefits if the employee is able
to work without loss of income." Frye v. Vincent Printing Co., 2016 TN Wrk. Comp.
App. Bd. LEXIS 34, at * 16 (Aug. 2, 20 16)(emphasis added). Here, by his own
admission, Mr. King worked full-time immediately following the work injury, albeit with
pain. ARD correctly observed that Mr. King was not under restrictions during this time,
but more importantly, Mr. King suffered no income loss. The Court agrees and holds Mr.
King failed to satisfy his burden to show by a preponderance of the evidence that he is
entitled to temporary disability benefits for this timeframe.



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       As for PPD, the parties agreed to a three-percent impairment rating and a
compensation rate of$453.51. 2 This equates to 13.5 weeks times $453.51, or $6,119.82,
as Mr. King's original award. See Tenn. Code Ann. § 50-6-207(3)(A).

        After the passage of 13.5 weeks, Mr. King became eligible to seek an increased
award provided he met the statutory criteria. The Workers' Compensation Law states
that the original award may be increased if, at the end of the initial period of
compensation, the employee returned to work and is receiving "wages or a salary that is
less than one hundred percent ( 100%) of the wages or salary the employee received from
the employee's pre-injury employer on the date of injury." !d. at -207(3)(B) (emphasis
added). The provision further states, "If appropriate, the injured employee's award ...
shall be increased by multiplying the original award by a factor of one and thirty-five one
hundredths (1.35). /d.( emphasis added).

       The Appeals Board examined a case presenting somewhat similar facts in
Marshall v. Mueller Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 74 (July 11, 2016). The
Board offered a thorough history of the statutory increased benefit factors and recent, pre-
Reform Act case law, noting that previously "wages" did not mean "average weekly
wage" but rather "hourly rate of pay for an employee who is compensated on an hourly
basis." !d. at * 12. Here, Mr. King asserted that the Court should compare the pre-injury
average weekly wage with his total weekly post-injury earnings. Marshall rejected that
approach. So does this Court. The Court holds that, given the compensation structure in
place at ARD, it should consider his pre-and post-injury mileage rates. No one disputes
these were equivalent until Mr. King's October accident that resulted in his lowered
mileage rate.

       When the injured employee in Marshall returned to work, under a collective
bargaining agreement, she no longer earned a "summer hours' bonus" increased hourly
rate. The trial court cited the statute and held that an increase would not be
"appropriate," capping the award. The Board affirmed, reasoning that the wage reduction
was the result of a policy that is effective every year and applied "to all employees
working in certain departments." !d. at *25.

       Here, Mr. King's initial compensation period ended on February 5, 2017, 13.5
weeks after reaching maximum medical improvement. He did not dispute the accident
following his return to work, which resulted in the loss of safety pay after the initial
compensation period ended. Therefore, the Court holds that increasing his award would
be inappropriate, given that his negligence precipitated the diminished rate of pay.



2
   The parties agreed at the compensation hearing that Mr. King's average weekly wage is $680.23,
resulting in a compensation rate of$453.51.


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      The Court is likewise unpersuaded by Mr. King's argument regarding the loss of
the dedicated route. ARD made diligent attempts to ensure he worked full-duty by
supplanting that loss with other routes, which he completed. Thus, Mr. King failed to
show by a preponderance of the evidence that he is entitled to the requested PPD
mcrease.

       Finally, as for Mr. King's request for discretionary costs, Rule 54 of the Tennessee
Rules of Civil Procedure authorizes these awards for "reasonable and necessary" court
reporter expenses and expert witness fees for depositions and trials. From a review of the
technical record, ARD did not stipulate to compensability until it filed its Prehearing
Statement approximately eight days before the compensation hearing. The Court
applauds ARD for its compliance with the Court's standing order on medical records, as
well as rules requiring organizing, indexing and page-numbering the records. However,
doing so does not amount to a stipulation to information contained within those records
as facts. Given the circumstances, the Court finds Mr. King acted reasonably in taking
Dr. LaDouceur's deposition and awards all the requested costs.

 IT IS, THEREFORE, ORDERED as follows:

   1. ARD or its workers' compensation carrier shall provide Mr. King with lifetime
      medical treatment for his injuries under Tennessee Code Annotated section 50-6-
      204. Mr. King or Dr. LaDouceur shall furnish all medical bills to ARD or its
      workers' compensation carrier for prompt payment.

   2. Mr. King is entitled to $352.87 in TTD and $263.28 in TPD for "period two."

   3. Mr. King is entitled to an original award of $6,119.82 in permanent partial
      disability benefits but no increased benefits.

   4. Mr. King's attorney is entitled to an attorney's fee of twenty percent of the total
      award of$6,735.97 or $1,347.19.

   5. The above awards are. subject to a child-support lien. The parties are responsible
      for allocation of the payment of the remaining benefit after payment of attorney
      fees toward satisfaction of the lien.

   5. Notwithstanding the method and timing of payment to the Plaintiff/Employee as
      above, and under Tennessee Code Annotated section 50-6-207(6), the Court finds
      the Employee is fifty years old (D.O.B.: 1-17-66) on the date of maximum medical
      improvement (MMI: 11-2-16) for his work injury to the left shoulder, and
      according to the mortality tables contained in Table VI (Mortality Table) of
      Volume 13 of the Tennessee Code Annotated has an expectation of 31.07 years of
      life remaining, or 372.84 months. Of the $6,119.82 gross amount of permanent

                                             5
   partial disability benefits awarded to the Plaintiff/Employee by the Court, $0.00
   constitutes consideration for future medical expenses, $1 ,223. 96 represents a
   statutory twenty-percent attorneys' fee, and $350.00 constitutes reimbursable
   expenses/discretionary costs. After payment of the attorneys' fees and litigation
   costs, the Plaintiff/Employee will receive the net amount of $4,545.86, which
   represents his permanent vocational disability for the March 17, 2016 work injury
   to the left shoulder. For purposes of apportioning compensation attributable to
   this Order, the sum is considered to be compensation for a permanent work injury
   to the left shoulder. Accordingly, and because the permanent impairment will
   affect Mr. King for the rest of his life, even though paid in a lump sum, the
   amortized monthly benefit/Social Security Disability "offset" received by the
   Employee is $4,545.86 divided by 372.84 months or $12.19 per month for the
   remainder of his life and represents a future income replacement, beginning on the
   date of the work injury (DOl: 3-17-16). This paragraph is intended for Federal
   Social Security purposes only and not for any other purpose, including but not
   limited to, disability retirement benefits from the Tennessee Consolidated
   Retirement System, under Tennessee Code Annotated section 50-6-207, as
   amended by Public Chapter 919, effective July 1, 1996.

6. ARD shall pay Mr. King's discretionary costs totaling $1,495.05.

7. The filing fee of $150.00 is taxed to ARD under Rule 0800-02-21-.07 of the
   Tennessee Compilation Rules and Regulations, payable within five business days
   of entry of this Order.

8. ARD shall file form SD-1 within five business days of entry of this Order.

9. Absent an appeal of this order, it shall become final thirty days after issuance.

   ENTERED March 27,2018.




                                Court of Workers' Compensaf




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                                  APPENDIX

EVIDENCE
  1. Deposition transcript of Dr. LaDouceur, including medical records
  2. First Repost of Injury
  3. Choice of Physician form
  4. Employee's revised calculations of taxable earnings and compensation rate
  5. ARD Trucking Payroll RECAP Report
  6. Notice of Seizure of Assets, Tennessee Department of Human Services
  7. Carrier's Check Log
  8. Copies of temporary disability payment endorsed checks
  9. Time cards
  10. Claims adjuster letter recapping total wage loss benefits
  11. Mr. King's routes, September 14, 2015-December 31, 2017
  12.Mr. King's routes, September27, 2016-February 10,2017
  13.All Payroll Wages from Return to Work Date of 9/27/2016 to 3/9/2018-Showing
      AWW $686.26

TECHNICAL RECORD
  1. Petition for Benefit Determination and Complaint
  2. Employee's Pre-Mediation Position Statement
  3. Dispute Certification Notice (Employee's and Employer's additional Issues
      attached)
  4. Post-Discovery Dispute Certification Notice (Employee's additional issues)
  5. Employee's Position Statement and Pre-Trial Brief
  6. Employee's Witness and Exhibit List
  7. Post-Trial Motion for Discretionary Costs
  8. Employee's Position Statement and Pretrial Brief Addendum
  9. Employer's Prehearing Statement
  10.Employer's Response to Employee's Post-Trial Motion for Discretionary Costs
  11. Employer's Witness and Exhibit List
  12.March 26, 2018 email regarding discretionary costs




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                           CERTIFICATE OF SERVICE

       I certifY that a copy of this Order was sent to these recipients by the following
 methods of service on March 27, 2018.

Name                  Certified   Fax   Regular    Email    Sent to
                      Mail              mail
Michael Underhill,                                    X     mlunderhill@bellsouth.net
employee's counsel
Stephen Heard,                                        X     skheard@cclawtn.com
employer's counsel




                                         P nny Shr , Clerk of Court
                                         Court of  rkers' Compensation Claims
                                         WC.CourtCierk@tn.gov




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