                                                                                  FILED
                                                                                Feb 10, 2020
                                                                                09:38 AM(CT)
                                                                              TENNESSEE COURT OF
                                                                             WORKERS' COMPENSATION
                                                                                    CLAIMS




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

AMBER WEST,                              )
        Employee,                        )       Docket No. 2019-04-0085
                                         )
v.                                       )
                                         )
THE BALANCED CANINE                      )
TRAINING ACADEMY,                        )       State File No. 64539-2017
         Employer,                       )
And                                      )
                                         )
STATE FARM INSURANCE,                    )
         Carrier.                        )       Judge Robert Durham



                          EXPEDITED HEARING ORDER


        The Court held an expedited hearing on January 29, 2020, to determine whether
Amber West is likely to prove that her low-back injury primarily arose out of and in the
course of her employment. If so, the next issue is whether she is entitled to psychiatric
care for this incident and resulting injury. Ms. West also asserted she is entitled to
additional temporary disability benefits because Balanced Canine Training Academy
(BCTA) inaccurately reported her average weekly wage. The Court holds that Ms. West
is likely to prove she suffered a work-related low-back injury; however, she did not
establish entitlement to psychiatric care. The Court further holds BCTA is not obligated
to pay additional temporary disability benefits at this time.

                                   History of Claim

       In early January 2017, Annelise Lynch, owner of BCTA, approached Ms. West
about working with her in her new dog-training business. Ms. West's duties would
include working in BCTA's office as well as feeding and caring for dogs.

     The parties discussed some of the employment terms by text. Ms. Lynch texted
Ms. West that it would not be many hours, and she would be paid "under the table," i.e.,

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unreported and in cash. They also agreed through text that Ms. West's schedule for the
first week beginning January 9 would be "Monday: 3:30-7:00/7:30; Tuesday: 1:00-
8:00/8:30 and Wednesday 11:00-7:00/7:30." However the texts did not discuss wages or
a schedule after the first week. The parties did not keep records, and they sharply differ
as to the hours Ms. West worked each week and the amounts BCTA paid her.

       Initially, Ms. West was BCTA's only employee. She testified that from January 9
until February 14, she made $100 to $140 per week depending on how many days she
worked. 1 She stated that she and Ms. Lynch soon agreed that her duties required more
hours than anticipated, and her wages raised to $500 per week beginning February 15.

       Ms. West claimed that she received $500 until June 1 when her wages changed to
$3 75 per week. The change to $3 75 is documented in another text exchange. On May
12, Ms. Lynch texted Ms. West: "Starting in June would $375.00 a week be good? It
will be longer days. You won't constantly be working though. I really need somebody
for mornings and evenings." Ms. West responded: "That would be great it would be
perfect timing." Ms. Lynch then assured Ms. West that she would get at least two days
per week off. Ms. West testified that she described the new situation as "great" and
"perfect timing," even though her wages would be $125 less, because her dog would
receive free training and she would have better hours.

       Ms. West introduced photographs of calendar pages, which she stated reflected the
hours she worked from May 19 until June 29. 2 She testified that she had no evidence of
her hours before May 19 because she had written them in another calendar, which this
calendar replaced. The pages showed that Ms. West worked approximately 39 hours per
week during this period. Upon review, Ms. Lynch agreed that was substantially correct.

       Ms. West testified that her wages changed again after Ms. Lynch "officially" hired
her on June 26. She testified her hourly pay was $7.25 with a forty-hour workweek. She
introduced a check stub for June 27 and 28 for seventeen hours at $7.25 per hour.

        During her testimony, Ms. Lynch vigorously disputed Ms. West's account. She
testified that she paid Ms. West $1 00 for about twenty hours of work each week until
June 1. She stated she never paid her $500 per week because she could not afford it.

      She said that she temporarily raised Ms. West's salary to $375 per week in June
because of extra duties required for BCTA's move to a new location. 3 She agreed that
when she "officially" hired Ms. West on June 26, she paid her $7.25 per hour.


1
  Ms. West admitted this is contrary to her affidavit, which stated she received $500 starting out.
2
  Ms. West did not bring the original calendar to the hearing.
3
  She admitted that, contrary to her affidavit, she paid Ms. West $375.00 for four weeks rather than two.

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       Regarding the injury, Ms. West testified that on the evening of June 29, she was
pulling a dog house into a pen when two large dogs jumped on her, knocking her over the
dog house. 4 She stated she called Ms. Lynch to let her know what happened. She also
texted Ms. Lynch later that night to tell her she might want to check on the doghouse, but
she did not mention an injury.

      Ms. West attempted to work the next day, but she had to go home early due to
low-back pain, which she testified she had never experienced before. Ms. Lynch said she
did not know anything about an alleged accident until after Ms. West went to the
emergency room on July 2. Nevertheless, records from several of Ms. West's providers
were consistent with a history of dogs causing her to trip over a doghouse.

       Ms. Lynch eventually filed a First Report of Injury, and Ms. West received
authorized care from neurosurgeon Joseph Jestus. He diagnosed sciatica that was "more
than 50% related to her workplace incident." Eventually, he performed a lumbar
microdiscectomy, and then another surgery to remove a foreign object. On February 21,
2019, he noted she continued to complain of severe pain and numbness in her left low
back radiating down her left leg. He found her to be at maximum medical improvement,
placed her under sedentary work restrictions, and referred her to pain management. Dr.
Jestus did not mention a psychological condition related to her injury or refer her for
psychiatric care.

      On July 23, 2019, Ms. West attended an evaluation with Dr. Vundyala Reddy of
Pain Management Group. She told Dr. Reddy she thought about suicide, but she had not
formed any plans. She also informed him that she was attempting to gain admission to a
mental hospital. However, Dr. Reddy did not refer her for psychiatric treatment.

       In September, Ms. West went to the emergency room for anxiety, depression, lack
of sleep, and non-specific suicidal ideation. She began treatment at a mental-health
center, where she received counseling and medication. She told the counselors that she
had suffered from anxiety and depression since June 2017; however, the records do not
mention her work accident or any trauma. She treated through November but stopped
because she no longer qualified for free care.

       Ms. West testified that she continues to suffer from anxiety and depression due to
the accident and her resulting disability. She stated that she has an overwhelming feeling
of worthlessness and is still very anxious around large dogs. She never received
psychiatric treatment before her accident.


4
  The parties presented substantial evidence regarding the traumatic nature, or lack thereof, of the incident
because of Ms. West's claim for psychiatric treatment. However, for reasons detailed below, the Court
finds it unnecessary to go into those details at this time.

                                                     3
                        Findings of Fact and Conclusions of Law

       Ms. West must establish that she is likely to prove at trial that she is entitled to the
requested benefits. See Tenn. Code Ann. § 50-6-239(d)(l) (2019). The Court will first
consider causation, then entitlement to psychiatric care, and conclude with Ms. West's
average weekly wage and her request for additional temporary disability benefits.

      To establish causation, Ms. West must show she is likely to prove that her low-
back pain arose primarily out of and in the course and scope of her employment with
BCTA. To do so, she must establish to a reasonable degree of medical certainty that her
employment contributed more than fifty percent in causing her disability and the need for
medical treatment, considering all causes. See Tenn. Code Ann.§ 50-6-102(14).

       Here, Ms. West testified that she never experienced low-back pain that radiated
into her left leg until two dogs knocked her over a doghouse at work. She never strayed
from this account when providing her history to numerous providers. BCTA did not
offer any testimony contradicting Ms. West's account. Dr. Jestus, as authorized
physician, gave his opinion that, given her history, her sciatica was more than fifty
percent related to the work incident. BCTA offered no contrary medical evidence. Thus,
the Court holds that Ms. West is likely to prove causation at trial.

       As for psychiatric care, Tennessee Code Annotated section 50-6-204(h) states that
psychological or psychiatric services shall be limited to those ordered by authorized
physicians. Ms. West did not produce any evidence that an authorized physician ordered
psychiatric care. Thus, her request is denied at this time.

       The Court now turns to Ms. West's average weekly wage (AWW) and the alleged
underpayment of temporary disability benefits. An employee's compensation rate at
which she is paid disability benefits is two thirds of her AWW. Tenn. Code Ann. § 50-6-
207. AWW is defined by Tennessee Code Annotated section 50-6-102(3)(A) as wages
earned in the fifty-two weeks before the injury. The section also provides alternate
methods for calculating A WW if employment was less than fifty-two weeks. Subsection
(B) states that the parties may divide earnings by the actual number of weeks worked to
arrive at A WW. If, due to shortness of employment, it is "impracticable" to use the
actual weeks worked, the Court may calculate A WW through the wages of a similar
employee under subsection (C).

       In this case, the parties made what is normally a routine calculation very difficult.
Their testimony as to wages is impossible to reconcile. The Court is skeptical of both
accounts, given their admitted willingness to pay and receive wages "under the table."
Further, no other witnesses and scant objective evidence corroborated either account.
Nevertheless, the Court will attempt to construct an A WW given the evidence before it.


                                              4
      The Court first looks to the evidence the parties documented or substantially
agreed upon: (1) Ms. Lynch initially paid Ms. West around $100 to $120 per week; (2)
beginning June 1, Ms. West's wages became $375 per week; (3) Ms. West worked an
average of thirty-nine hours per week from May 19 to the injury date; (4) once Ms.
Lynch officially hired Ms. West, she paid her $7.25 an hour.

       The biggest point of contention is whether Ms. Lynch paid Ms. West $500 from
February 15 to June 1. Ms. West testified they renegotiated based on the hours she
worked each week. Ms. Lynch categorically denied it, saying she could never have
afforded it. As with each element of a claim, the burden of proof remains with the
employee. The evidence does not make it likely that Ms. West will prevail on this issue.

      The initial text exchange supports Ms. Lynch's testimony that Ms. West only
worked part-time. She told Ms. West that there would not be many hours, and they set a
schedule of around twenty hours for the first week. The Court doubts that Ms. Lynch
would pay Ms. West $500 per week for part-time work as she began her new business.

       Similarly, the Court finds it unlikely that Ms. West would describe a wage
reduction from $500 to $375 as "great" or "perfect timing," and her stated reason for this
statement is unconvincing. Further, while Ms. West worked an average of thirty-nine
hours per week beginning May 19, Ms. Lynch explained this was a temporary increase in
work duties as they moved locations, and it was this increase that justified $375.

       In addition, when Ms. Lynch "officially" hired Ms. West, she listed her as a part-
time employee making $7.25 per hour. Even at a forty-hour work-week, this only comes
to $290 a week. The Court finds it difficult to believe that Ms. West would accept a
forty-two percent wage decrease in two months without objection.

        Finally, Ms. West did not provide any witnesses or documentary evidence that
corroborated her account. Thus, the Court holds that Ms. West is not likely to prevail at
trial regarding her claimed AWW.

       Ms. West alternatively argued that, given the differences in the parties' testimony,
the Court should base her A WW on the two documented days - June 27 and 28 - when
her pay was $7.25 per hour for seventeen hours, and extrapolate those two days to a
forty-hour work-week. The Court declines to do so. In this case, Ms. West received
wages from January 9 until June 28, or approximately 24.5 weeks, which the Court finds
to be ample time to calculate wages under Tennessee Code Annotated section 50-6-
102(B).

      Since the Court finds Ms. Lynch's account of Ms. Welch's wage history
corroborated by documentation and justified by logic, the Court will use it to calculate
AWW. The Court finds that Ms. West's wages from January 9 until June 1, a period of

                                             5
twenty weeks and three days, was $100 per week. She then received $3 75 per week for
four weeks, and then $123.25 for the two days before her injury. This totals $3,673.25,
which divided by 24.5 weeks, comes to $149.93 per week. This is less than the
applicable minimum compensation rate of $133.40 per week, which is what Ms. West
received in temporary disability benefits until she reached maximum medical
improvement. Thus, the Court holds she is not entitled to additional benefits at this time.

          IT IS, THEREFORE, ORDERED that:

     1. BCTA shall continue to pay for treatment by authorized physicians causally related
        to her work injury of June 28, 2017. Ms. West's requests for additional temporary
        disability benefits and a panel of psychiatrists are denied at this time.

     2. This case is set for a Scheduling Hearing on April 7, 2020, at 9:00 a.m. Central
        Time. The parties must call 615-253-0010 or toll-free at 855-689-9049 to
        participate. Failure to call might result in a determination of the issues without your
        participation.

     3. Unless an appeal is filed, compliance must occur no later than seven business days
        from entry of this Order, pursuant to Tennessee Code Annotated section 50-6-
        239(d)(3).    BCTA must submit confirmation of compliance by email to
        WCCompliance.Program@tn.gov no later than the seventh business day from entry.
        Failure to submit confirmation may result in a penalty assessment. For questions,
        please contact the Compliance Unit at WCCompliance.Program@tn.gov.

                                      ENTERED February 10,2020.




                                       obert V. Durham, Judge
                                      Court of Workers' Compensation Claims


                                          APPENDIX

Exhibits:

1.       Ms. West's Responses to Interrogatories
2.       Ms. West's Supplemental Responses
3.       Records from Plateau Mental Health Center
4.       Ms. Lynch's Responses to Interrogatories
5.       Physical Therapy Records

                                                6
6.    Records from Crawford Chiropractic
7.    Records from Cumberland Medical Center
8.    Records from Dr. Jestus
9.    Records from Pain Management Group
10.   Records from Cookeville Regional Medical Center
11.   Form W-4 and Check Stub
12.   Typed First Report oflnjury
13.   Ms. West's affidavit
14.   Ms. Lynch's affidavit
15.   Texts between Ms. West and Ms. Lynch
16.   Photographs ofMs. West's Calendar
17.   Handwritten First Report of Injury
18.   Schedule oftemporary disability benefits payments
19    Wage Statement

Technical Record:

1.    Petition for Benefit Determination
2.    Dispute Certification Notice
3.    Request for Expedited Hearing
4.    Order Compelling Discovery
5.    Response Opposing Request for Expedited Hearing
6.    BCTA's Pre-Hearing Brief
7.    Ms. West's Pre-Hearing Brief
8.    Case Law Submitted by the Parties


                           CERTIFICATE OF SERVICE

      A copy of this Order was sent as indicated on February 10, 2020.

 Name               Certified      Via Email    Email Address
                    Mail
James Higgins                           X       j sh@higginsfirm.com
Steve Erdely, IV                        X       serdely@dmrpclaw .com




                                        Pe4J.j~::; ,
                                        Court of 'i'Jrkers' Compensation Claims
                                        WC.CourtCierk@tn.gov


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