                                                                                FILED
                                                                              Dec 19, 2019
                                                                             01:51 PM(CT)
                                                                           TENNESSEE COURT OF
                                                                          WORKERS' COMPENSATION
                                                                                 CLAIMS




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

CASEY HOPKINS,                             ) Docket No. 2019-05-0198
         Employee,                         )
v.                                         )
                                           )
EMPLOYBRIDGE HOLDING CO.,                  ) State File No. 95177-2016
        Employer,                          )
And                                        )
                                           )
XL INS. AMERICA, INC.,                     ) Judge Dale Tipps
          Carrier.                         )


            EXPEDITED HEARING ORDER GRANTING BENEFITS


      This case came before the Court on December 12, 2019, for an Expedited Hearing
on whether Ms. Hopkins is entitled to additional temporary disability benefits. For the
reasons below, the Court holds she is entitled to the requested benefits.

                                   History of Claim

       Ms. Hopkins suffered a significant work injury to her scalp on December 9, 2016.
Employbridge, a temporary work agency, accepted the injury as compensable and
provided medical treatment with Dr. Blair Summitt. Ms. Hopkins has undergone
multiple reconstructive operations, and more are scheduled. She also continues to treat
for accident-related PTSD with her authorized psychiatrist, Dr. Greg Kyser.

       Dr. Kyser assigned Ms. Hopkins light-duty restrictions on March 20, 2017.
According to the affidavit of Employbridge employee Cody Sankowski, those restrictions
were no “factory work or work around machinery.” Ms. Hopkins testified that she also
had restrictions from Dr. Summitt for a while, although she did not provide details.

       Employbridge accommodated Ms. Hopkins’s restrictions with light duty from the
date of her injury until September 20, 2018, when her job assignment ended. It then paid
temporary disability benefits until November 27, 2018. According to Mr. Sankowski,

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Ms. Hopkins no longer had physical work restrictions after that date but only the
limitations on factory work and machinery. Employbridge also paid temporary disability
benefits from January 9 to 22, 2019, after one of Ms. Hopkins’s surgeries.

       After her last assignment, Employbridge sent Ms. Hopkins for an interview with
one of its clients, but she did not get the job. She also described a phone call with an
Employbridge employee to discuss the possibility of a night-shift job. Ms. Hopkins
expressed her preference not to work nights due to childcare concerns, but she said she
would be willing if that were the only option. No job offer ever came from that
conversation, and even though she asked several times, Employbridge never sent her for
other interviews or made any work offers.

       Ms. Hopkins testified that she had two jobs since her temporary benefits ended.
She worked for Victoria’s Secret for about a month in November and December 2018.
She also worked for two weeks in December for a company called Premium. Regarding
other jobs, Ms. Hopkins applied unsuccessfully with many other employers.1

     At the hearing, Ms. Hopkins requested temporary partial disability benefits from
November 28, 2018, to the present, minus the six weeks she worked during that period.

        Employbridge contended that Dr. Kyser’s medical restrictions are somewhat
vague because they do not specify which type of machinery or factory work Ms. Hopkins
should avoid. Also, it claimed the medical record is unclear as to which time period
those restrictions cover. Finally, Employbridge argued that Ms. Hopkins has no physical
restrictions but only has environmental restrictions that do not merit disability benefits.
For these reasons, it asked the Court to deny her request.

                                Findings of Fact and Conclusions of Law

       Ms. Hopkins must provide sufficient evidence from which this Court might
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). She seeks temporary partial disability (TPD),
which are available when the temporary disability is not total. Specifically, TPD “refers
to the time, if any, during which the injured employee is able to resume some gainful
employment but has not reached maximum recovery.” An employee may receive TPD
benefits when the treating physician has her return to work with restrictions but the
employer either (1) cannot return the employee to work within those restrictions or (2)
cannot provide restricted work that pays the employee’s average weekly wage on the date
of injury. Heard v. Carrier Corp., 2018 TN Wrk. Comp. App. Bd. LEXIS 16, at *5-6
(April 20, 2018).

1
    She was recently hired by a carpentry company but has not yet begun work.
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        Applying these criteria, Mr. Sankowski confirmed that Ms. Hopkins had medical
restrictions. Employbridge suggested some uncertainty exists about the duration of those
restrictions but presented no evidence to rebut Ms. Hopkins’s testimony that they are still
in place. Further, although Employbridge discussed other job assignments with Ms.
Hopkins, it made no offers to return her to work. Therefore, she is likely to prove at a
hearing on the merits that Employbridge could not return her to work within her
restrictions.

       Employbridge contended that Dr. Kyser’s restrictions are vague. The Court
disagrees. The evidence was that Ms. Hopkins was to do no “factory work or work
around machinery.” These are admittedly very broad restrictions, but that does not make
them vague. To the contrary, a straightforward reading indicates exactly which kind of
work Ms. Hopkins may not do. Further, Employbridge has had over a year to ask Dr.
Kyser, their own panel doctor, for clarification if they were concerned about the scope of
Ms. Hopkins’s limitations.

       Regarding Employbridge’s argument that the restrictions are only environmental,
it produced no authority to suggest that environmental limitations are somehow different
from physical restrictions in the TPD analysis. Further, psychiatric restrictions such as
those assigned to Ms. Hopkins will generally be environmental rather than physical, and
mental injuries are compensable under Tennessee Code Annotated section 50-6-102(14).

       Ms. Hopkins established that, except for six weeks with other employers, she has
not worked since September 20, 2018. Therefore, the Court holds she is likely to prevail
at a hearing on the merits that she is entitled to TPD benefits for fifty-eight weeks,2 as
well as continuing TPD benefits under Tennessee Code Annotated section 50-6-207(2).

        The Court is unable to calculate the sum owed due to Employbridge’s failure to
file a wage statement, the parties’ failure to stipulate a compensation rate at the hearing,
and the lack of any testimony from Ms. Hopkins as to her wages. Once Employbridge
files a wage statement, the Court will order immediate payment.

IT IS, THEREFORE, ORDERED as follows:

      1. Employbridge shall file a wage statement within ten calendar days of entry of
         this order so the Court may calculate the correct average weekly wage and
         compensation rate and issue an order for temporary disability benefits.

      2. This matter is set for a Status Hearing on March 4, 2020, at 9:00 a.m. You must
         call toll-free at 855-874-0473 to participate. Failure to call might result in a

2
    September 21, 2018, to December 12, 2019, minus six weeks.
                                                   3
      determination of the issues without your further participation. All conferences are
      set using Central Time.

      ENTERED December 19, 2019.



                                 _____________________________________
                                 Judge Dale Tipps
                                 Court of Workers’ Compensation Claims


                                     APPENDIX

Exhibits:
   1. Rule 72 Declaration of Casey Hopkins
   2. Rule 72 Declaration of Michele Simmons
   3. Rule 72 Declaration of Cody Sankowski
   4. Indexed Medical Records
   5. Email from Dr. Greg Kyser

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Employer’s Pre-Hearing Statement
   5. Employer’s Witness and Exhibit List

                           CERTIFICATE OF SERVICE

     I certify that a copy of the Expedited Hearing Order was sent as indicated on
December 19, 2019.

Name                        Certified Email       Service sent to:
                            Mail
David Goodman,                        X           dgoodman@forthepeople.com
Employee Attorney
Tiffany B. Sherrill,                   X          tbsherrill@mijs.com
Employer Attorney




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




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