                                                                                             FILED
                                                                                            Jul 06, 2020
                                                                                           04:00 PM(CT)
                                                                                         TENNESSEE COURT OF
                                                                                        WORKERS' COMPENSATION
                                                                                               CLAIMS



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

    ANANA MELENDEZ,                                      )   Docket No. 2018-07-0342
              Employee,                                  )
    v.                                                   )
    WOLFE CO.,                                           )   State File No. 46997-2017
              Employer,                                  )
    And                                                  )
    ACCIDENT FUND GENERAL                                )   Judge Allen Phillips
    INS. CO.,                                            )
              Carrier.                                   )

                             COMPENSATION HEARING ORDER


       This case came before the Court on June 11, 2020 for a Compensation Hearing. The
only issue was whether Ms. Melendez is entitled to enhanced benefits because she lacks a
high school diploma or general equivalency diploma (GED). For the following reasons, the
Court holds she is entitled to the enhanced benefits.

                                           History of Claim

       On January 31, 2020, the Court entered an Order Approving Settlement Agreement
in which it approved an original award of $19,283.94 in permanent partial disability
benefits. The Court also awarded enhancing factors of 1.35 times the original award
because Ms. Melendez did not return to work at the end of the initial benefit period and 1.2
times because she is over age forty.1

        The parties did not agree to the enhancing factor of Tennessee Code Annotated
section 207(3)(B)(i), which provides a multiplier of 1.45 times the original award if the
employee lacks a high school diploma or GED. They did agree that if Ms. Melendez were
entitled to those benefits, they equal $14,058.

      For her part, Ms. Melendez testified she does not have a GED but instead
completed only the ninth grade. She said she enrolled in GED classes about twenty years
ago when living in Indiana, and although she completed those classes, she did not “take

1
    The Court additionally approved Wolfe’s agreement to pay future medical expenses.

                                                     1
the test” or “graduate.” She wrote “yes” to the question of whether she had a GED on
Wolfe’s job application because she thought the question meant whether she had completed
GED classes, not necessarily that she graduated. She said the job did not require a high
school diploma or GED.

        In addition, Ms. Melendez offered a Workers’ Compensation Mediated Settlement
Agreement from 2008. The document listed her as having “completed formal education
through 10th grade.” She also produced a letter from an agency that provides adult
education services in the Indiana town where Ms. Melendez lived. The agency had no
record of Ms. Melendez having been a student, but it had only been the “program of record
for the past 9 years or so.” Ms. Melendez moved to Tennessee in 2003.

      Wolfe introduced the job application and offered an adjuster’s note, which stated
that Ms. Melendez told her she has a GED. At the hearing, the adjuster testified that she
asked every employee about their educational background and had done so in the same
way over her thirty-five-year career.

       On cross-examination, Ms. Melendez did not recall talking with the adjuster. Wolfe
also confronted her about stating on her application that she had a GED. Ms. Melendez
replied that she did not “lie” but maintained she took the question to mean she had
completed the classes. However, she admitted she understood the word “graduate” means
that one “finished” a program.

       Based on her testimony and the 2008 settlement agreement, Ms. Melendez
contended she established she does not have a GED. For its part, Wolfe contended Ms.
Melendez stated on the job application and told the adjuster that she had a GED. It argued
that when she settled the 2008 claim, she knew a lower education level meant recovery of
a larger amount of disability benefits, just as it does now. Further, Wolfe argued there are
thousands of adult education programs nationwide, meaning “it is virtually impossible to
disprove” that Ms. Melendez does not have a GED by requesting records from those
programs.

                       Findings of Fact and Conclusions of Law

       The employee in a workers’ compensation claim has the burden of proof on all
essential elements of her claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp.
App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). At this Compensation Hearing, Ms. Melendez
must establish her entitlement to the requested benefits by a preponderance of the evidence.
Tenn. Code Ann. § 50-6-239(c)(6).

       Here, Ms. Melendez testified she does not have a GED, and she offered a previous
settlement agreement that memorialized a tenth-grade education to corroborate that
testimony. Wolfe offered compelling contrary evidence, specifically the job application
and Ms. Melendez’s statement to the adjuster ‒ a statement that the Court believes she
made. Further, the Court recognizes that Ms. Melendez has claimed a lower education level
                                             2
twice, here and in the earlier settlement, where lacking a GED enhances her benefits.
Moreover, the Court recognizes Wolfe’s argument that proving the negative regarding an
employee’s education level is practically impossible.

         However, while Wolfe’s position is compelling, the Court finds Ms. Melendez’s
trial testimony dispositive. She testified, after swearing a solemn oath and under penalty of
perjury, that she did not have a GED. The Court watched her closely. Because current
health concerns require facial masking, the Court could only see her eyes. “The face is a
picture of the mind as the eyes are its interpreter.”2 In Ms. Melendez’s eyes, the Court
detected neither deceit nor prevarication. If anything, a slight degree of reticence was more
in keeping with some embarrassment at having her lack of education aired in public.

       Likewise, the Court listened to her intently, noting her tone and inflection. She was
calm and sure. See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014) (discussing
indicia of witness credibility). Even when Wolfe confronted her as to whether she “lied”
on the job application, Ms. Melendez did not become argumentative. Again, she said she
interpreted the question as meaning that she had completed the classes, not necessarily that
she received a certificate. Regardless, a GED was unnecessary to obtain the job, removing
any need for embellishment.

        Based on these findings, the Court finds Ms. Melendez credible and holds she is
entitled to the 1.45 times enhancing factor because she lacks a high school education or
GED.

IT IS, THEREFORE, ORDERED AS FOLLOWS:

          1. Wolfe shall pay Ms. Melendez enhanced permanent partial disability benefits of
             $14,058 under Tennessee Code Annotated section 50-6-207(3)(B)(i). Ms.
             Melendez’s attorney is entitled to a twenty-percent fee of the award under
             Tennessee Code Annotated section 50-6-226(a)(1), or $2,811.60.

          2. Wolfe shall pay all reasonable and necessary future medical benefits under
             Tennessee Code Annotated section 50-6-204(a)(1)(a) under the January 31, 2020
             Order Approving Settlement Agreement.

          3. The Court taxes the $150.00 filing fee to Wolfe, to be paid to the Court Clerk
             under Tennessee Compilation Rules and Regulations 0800-02-21-.06 (August,
             2019) within five business days of this order becoming final, and for which
             execution might issue if necessary.

          4. Wolfe shall file a Statistical Data Form (SD-2) with the Court Clerk within five
             business days of the date this order becomes final.


2
    Marcus Tullius Cicero, Roman philosopher (106-43 B.C.).

                                                    3
5. Absent an appeal, this order shall become final thirty days after entry.

ENTERED July 6, 2020.


                                   _____________________________________
                                   Judge Allen Phillips
                                   Court of Workers’ Compensation Claims

                                APPENDIX

     Exhibits
1.   Application for Employment
2.   Photocopy of claims handler’s note
3.   Settlement Documents, January 31, 2020
4.   Settlement Documents, December 23, 2008
5.   Subpoena for education records
6.   Affidavit of Records Custodian regarding education records
7.   First Report of Work Injury

    Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Scheduling Hearing
4. Order Setting Compensation Hearing
5. Employee’s Pre-Hearing Brief
6. Employee’s List of Proposed Exhibits
7. Employee’s Witness List
8. Pre-Compensation Hearing Statement
9. Wolfe Co. Pre-Hearing Brief
10. Wolfe Co. Exhibit List
11. Wolfe Co, Witness List
12. Motion to Continue Compensation Hearing
13. Order Continuing Compensation Hearing
14. Second Order Setting Compensation Hearing




                                      4
                           CERTIFICATE OF SERVICE

       I certify that a copy of this Compensation Hearing Order was sent as indicated on
July 6, 2020.

Name                                        Via Service sent to:
                                           Email
Monica R. Rejeai, Employee’s Attorney       X    mrejaei@nstlaw.com
                                                 jkarpovich@nstlaw.com
Gordon Aulgur, Employer’s Attorney          X    gordona@accidentfund.com
                                                 rosie.marlatt@accidentfund.com



                                        ______________________________________
                                        Penny Shrum, Court Clerk
                                        Court of Workers’ Compensation Claims




                                           5
                        Compensation Hearing Order Right to Appeal:
     If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, you must:
   1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
      Clerk of the Court of Workers’ Compensation Claims within thirty calendar days of the
      date the compensation hearing order was filed. When filing the Notice of Appeal, you
      must serve a copy upon the opposing party (or attorney, if represented).

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the filing fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of your appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
      reporter must prepare a transcript and file it with the court clerk within fifteen calendar
      days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
      evidence prepared jointly by both parties within fifteen calendar days of the filing of the
      Notice of Appeal. The statement of the evidence must convey a complete and accurate
      account of the hearing. The Workers’ Compensation Judge must approve the statement
      of the evidence before the record is submitted to the Appeals Board. If the Appeals
      Board is called upon to review testimony or other proof concerning factual matters, the
      absence of a transcript or statement of the evidence can be a significant obstacle to
      meaningful appellate review.

   4. After the Workers’ Compensation Judge approves the record and the court clerk transmits
      it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
      party has fifteen calendar days after the date of that notice to submit a brief to the
      Appeals Board. See the Practices and Procedures of the Workers’ Compensation
      Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann. § 50-6-239(c)(7).

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
                                              NOTICE OF APPEAL
                                      Tennessee Bureau of Workers’ Compensation
                                        www.tn.gov/workforce/injuries-at-work/
                                        wc.courtclerk@tn.gov | 1-800-332-2667

                                                                                  Docket No.: ________________________

                                                                                  State File No.: ______________________

                                                                                  Date of Injury: _____________________



         ___________________________________________________________________________
         Employee

         v.

         ___________________________________________________________________________
         Employer

Notice is given that ____________________________________________________________________
                         [List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.

Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________

Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
                           * Attach an additional sheet for each additional Appellant *

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Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________



Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
                              * Attach an additional sheet for each additional Appellee *




                                             CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.



                                                           ______________________________________________
                                                            [Signature of appellant or attorney for appellant]




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