     FILED
   Feb 15, 2018
   03:30 PM(CT)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIM
Carrier. 1

        Carrier returned Ms. Heard to work on January 3, 2018, at a higher rate of pay,
and Carrier continued to accommodate her light-duty restrictions until January 22 when
Dr. Lonergan totally restricted her from work. At the time of the hearing, she remained
off work and under Dr. Lonergan's care. Carrier indicated it would initiate her temporary
total disability benefits.

       The parties introduced Dr. Lonergan's work-status notes, which indicated he
placed Ms. Heard on light duty between August 30, 2017, and January 3, 2018, except for
the period from October 26 through November 13, 2017, when he took her off work
following an epidural steroid injection. At the hearing, Carrier stipulated it owed Ms.
Heard temporary total disability benefits for this period even though it occurred during
the layoff. It only disputes Ms. Heard's request for temporary partial disability for the
remaining periods during the layoff.

       Steven Morris, Carrier's Labor Relations Representative, explained the CBA
provides Carrier based layoff decisions on seniority only. Mr. Morris testified union
workers received notice sixty days in advance of the seasonal layoff under "The Warren
Act," and Carrier posted the names of the specific employees laid off on August 29.
Carrier hand-delivered letters of separation to those employees affected by the layoff on
August 31, 2017, notifying the employees of their right to seek unemployment benefits.
At that time, Carrier laid off approximately 400 union employees effective September 1
and laid off 150 more the following month. He confirmed Ms. Heard was among a group
of 350 employees Carrier recalled to work on January 3, 2018, and that Ms. Heard
returned at a higher rate of pay. Mr. Morris confirmed Carrier has seasonal layoffs every
year.

       On cross-examination, Ms. Heard questioned how she could receive
unemployment benefits while "under workers' compensation." Mr. Morris responded that
the State of Tennessee made unemployment determinations.

        Blake Bryan, Carrier's Senior Environmental Health and Safety Representative,

1
  Ms. Heard testified she did not think she was subject to the layoff in 2017 due to her seniority, but she
did not file a grievance with the union. Steven Morris, Carrier's Senior Labor Relations Representative in
Human Resources, testified HR determined the employees subject to layoff based on seniority under
pages 14-16 of the CBA. He testified Ms. Heard had less seniority than the employees not subject to
layoff. Blake Bryan, Carrier's Senior Environmental Health and Safety Representative, testified that an
employee's workers' compensation claim status bears no impact on whether an employee is subject to a
seasonal layoff. He reiterated that HR determined which employees were subject to layoff under the
CBA. The Court credits Mr. Morris' and Mr. Blake's testimony regarding Ms. Heard's selection for the
seasonal layoff, and finds Ms. Heard presented no proof that her lay off was due to her worker's
compensation claim.

                                                    2
testified he handles Carrier's workers' compensation claims. He testified Carrier's policy
is to make every effort to accommodate light-duty restrictions so employees may receive
their full pay. Consistent with their policy, Carrier accommodated Ms. Heard's light-duty
restrictions and would have continued to do had she not been subject to the seasonal
layoff.

       Ms. Heard testified she did not work during the seasonal layoff, and she contended
Carrier owes her temporary partial disability benefits for the period she was on light-duty
between September 1, 2017, and January 3, 2018. She offered no proof regarding a denial
of unemployment compensation during this same period.

                       Findings of Fact and Conclusions of Law

      At an Expedited Hearing, Ms. Heard must come forward with sufficient evidence
from which this Court might determine she is likely to prevail at a hearing on the merits.
Tenn. Code Ann. § 50-6-239(d)(l) (2016).

        The sole issue is Ms. Heard's entitlement to temporary partial disability benefits.
"An injured worker is eligible for temporary disability benefits if: ( 1) the worker became
disabled from working due to a compensable injury; (2) there is a causal connection
between the injury and the inability to work; and (3) the worker established the duration
of the period of disability." Temporary partial disability (TPD) refers to the time, during
which the injured employee is able to resume some gainful employment, working under
restrictions, but has not reached maximum recovery. TPD is payable when the employer
either (1) cannot return the employee to work within the restrictions or (2) cannot provide
restricted work for a sufficient number of hours and/or at a rate of pay equal to or greater
than the employee's average weekly wage on the date of injury, the injured worker may
be eligible for temporary partial disability. Jones v. Crencor, 2015 TN Wrk. Comp. App.
Bd. LEXIS 48, at *7-8 (Dec. 11, 2015).

        Here, it is undisputed that Dr. Lonergan provided Ms. Heard work restrictions on
August 30, 2017. Carrier accommodated those restrictions as of August 31 and when she
returned after the layoff on January 3, 2018, and it paid her full wages while doing so.
The Court finds Carrier would have continued to provide Ms. Heard modified-duty work
within her restrictions between September 1, 2017, and January 3, 2018, had she not been
subject to the unrelated seasonal layoff under the CBA. The question before the Court is
whether Ms. Heard is entitled to TPD benefits during a seasonal layoff. For an answer to
this unique question, the Court must consider the proof presented. Here, there is no proof
that her inability to work during this period of time related to her restrictions. The only
proof presented points to the seasonal layoff as the reason she did not work. Thus, Ms.
Heard has not met the requirements for TPD benefits, and her request for temporary
disability benefits is denied.


                                             3
IT IS, THEREFORE, ORDERED as follows:

  1. Ms. Beard's claim against Carrier Corporation/United Technologies Corporation
     and its workers' compensation carrier for the requested temporary partial disability
     benefits is denied.

  2. As stipulated, Carrier shall pay Ms . Heard temporary total disability benefits from
     October 26, 2017, through November 13, 2017, when Dr. Lonergan totally
     restricted her from work.

  3. This matter is set for a telephonic Status Hearing on March 12, 2018, at 10
     a.m. Central Time. You must call toll-free 855-543-5039 to participate in the
     hearing. Failure to call in may result in a determination of the issues without your
     further participation.


     ENTERED this the 15th day of Feb uary, 2018.




                                       'iUdge AmW . ~reH
                                        Court of Workers' Compensation Claims




                                          4
                                      APPENDIX

Exhibits:
   1. Affidavit
   2. First Report of Injury
   3. Panel
   4. Dr. Lonergan's August 30, 2017 record
   5. Dr. Lonergan's work status forms (collective exhibit)
   6. MRI report
   7. Carrier's counsel's email to Ms. Heard
   8. Letter of Separation
   9. Collective Bargaining Agreement (pgs. 14-16)


Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Transfer Order
   5. Carrier's position statement


                             CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of this Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 15th day
ofFebruary, 2018.

            Name                  Via Email                   Service sent to:
April Heard, Esq.,                   x            aprilheard72@yahoo.com
Self-Represented Employee
Eugene S. Forrester, Jr., Esq.,      x            cforrester@farris-law. com
Attorney for Employer
James Hicks, Esq.,                   x            james.hicks@tn.gov
Ombudsman Attorney




                                           P~u~:-:C~ourt
                                           Co ~·;~ J;~orkers'
                                              1


                                                                Compensation Claims



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