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

ALYCE COKER,                                 )   Docket No. 2016-06-0194
         Employee,                           )
v.                                           )
FLEETWOOD HOMES, INC.,                       )   State File No. 29379-2015
         Employer,                           )
and                                          )
SENTRY CASUALTY COMPANY                      )   Judge Joshua Davis Baker
         Carrier.                            )


                       COMPENSATION HEARING ORDER



       This matter came before the Court for a compensation hearing on August 23,
2017. The parties settled initial benefits, so the only issue is Ms. Coker’s entitlement to
increased permanent partial disability benefits under Tennessee Code Annotated section
50-6-207(3)(D) (2016). The central legal issue is whether Ms. Coker voluntarily resigned
her employment with Fleetwood Homes, precluding recovery of increased benefits. The
Court holds that Ms. Coker voluntarily resigned her employment, denies her claim for
increased benefits, and dismisses her case.

                                    History of Claim

       Ms. Coker fell on a wet floor, suffering a compression fracture of her L1 vertebrae
on April 17, 2015, while working as a customer service representative for Fleetwood
Homes. Ms. Coker received authorized medical treatment and temporary disability
benefits. Dr. M. Robert Weiss, the authorized physician, assigned Ms. Coker 12%
permanent impairment to the body as a whole and released her to return to work on
September 17, 2015. Afterward, the parties agreed on $15,256.62 in permanent partial
disability benefits, or fifty-four weeks of benefits, at a compensation rate of $282.53 per
week. This payment satisfied all permanent partial disability benefits for Ms. Coker’s
initial compensation period, which expired on September 29, 2016. The parties disagree
over whether Ms. Coker may recover additional permanent partial disability benefits.

        At its essence, the disagreement concerned whether climbing the open-riser
staircase to reach her second-floor work area five times each day was within Ms. Coker’s
permanent restrictions. She returned to work for Fleetwood Homes at the same rate of
pay on November 17, 2015, but then resigned her employment two days later to avoid
climbing the staircase. She acknowledged her job duties were not strenuous and her
restrictions did not foreclose clerical, sedentary work. However, the staircase was the
only way to reach her department. Typically, she climbed the staircase in the morning to
reach her desk, to return from her lunch break and to return from her mid-morning and
mid-afternoon breaks. She also used the stairs to retrieve mail if requested. However,
Ms. Coker only climbed the staircase once on the 17th and once on the 18th; in doing so,
she experienced so much pain that she declined to return from lunch both days. Ms.
Coker testified she declined Dr. Weiss’ offer of prescription medication to reduce pain
because she feared addiction.

       Dr. Weiss provided differing permanent restrictions about stair-climbing when he
released Ms. Coker to return to work in September 2015. On the same day, Dr. Weiss
signed one note reading, “Avoid stair climbing,” and also signed a statement reading,
“[A]void repetitive stair climbing if possible.” Ginger Swindle, human resources
representative for Fleetwood Homes, testified she needed clarification from Dr. Weiss
about the word “avoid.” A month later, Dr. Weiss signed a third note reading, “Pt. can go
up and down stairs 4-6 times per day.” In his deposition, Dr. Weiss supposed the change
occurred because someone asked him to be more specific regarding Ms. Coker’s stair-
climbing limitation – perhaps even asking him if four to six times a day was reasonable.
He said four-to-six times would have “seemed, you know, reasonable” but that he
“arrived at that statement through some pathway that I just don’t remember now two
years later.”

        Although she denied requesting the restriction, Dr. Weiss testified that Ms. Coker
“had a particular aversion” to stair-climbing and that “she specifically requested . . .
restricted activity regarding the stairs.” He further testified that “typically, after a
compression fracture, [he] would not specifically list stair climbing” as a permanent
restriction. Dr. Weiss attributed Ms. Coker’s difficulty stair-climbing to her weight and
deconditioning. He also explained Ms. Coker’s reported pain is “entirely coincident and
consistent with the nature of [her] injury.” However, he said it was not medically
harmful for her to climb stairs, “as long as she’s not increasing the degree of compression
deformity” while healing. Dr. Weiss stated Ms. Coker’s compression deformity had
healed at the time he released her.


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        Ms. Coker affirmed that she did not work anywhere after leaving Fleetwood
Homes and interviewed for “only one job” in April 2016 as a dispatcher with the Sumner
County Sheriff’s Office. She later clarified she had applied for “some” other dispatcher
jobs as well. Although she has customer service experience, she did not apply for those
jobs because she did not want to drive more than thirty minutes from her home in
Trousdale County. While she drove to Lebanon for her previous employment, she
testified she “did not have a back injury then.” She acknowledged that Dr. Weiss had not
restricted her driving.

                       Findings of Fact and Conclusions of Law

       The only issue to be determined is whether Ms. Coker is entitled to increased
permanent partial disability benefits as a result of her resignation prior to expiration of
the initial compensation period. Fleetwood Homes claimed it provided Ms. Coker
employment that accommodated her permanent restrictions. Ms. Coker asserted that pain
from her work injury necessitated her resignation and that she is entitled to increased
benefits because the limitations of her work injury precluded her employment. The Court
holds that Ms. Coker failed to establish entitlement to additional benefits and denies her
claim.

       In order to prevail, Ms. Coker “must establish by a preponderance of the evidence
that [she is] entitled to the requested benefits.” Willis v. All Staff, 2015 TN Wrk. Comp.
App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-239(c)(6)
(2016) (“[T]he employee shall bear the burden of proving each and every element of the
claim by a preponderance of the evidence.”).

        If an injured employee is unemployed when the period of compensation ends, she
may file a new petition for benefit determination seeking increased benefits. The amount
of benefits due depends upon several factors, including the employee’s age, education,
and county of residence. Tenn. Code Ann. § 50-6-207(3)(B). However, if “an
employee’s loss of employment is due to the employee’s voluntary resignation or
retirement” unrelated to the work-related disability, then the Workers’ Compensation
Law bars recovery of increased benefits. Id. at 50-6-207(3)(D)(i). The cornerstone of
this determination concerns whether an employee made a meaningful return to work.

       Whether an employee has made a meaningful return to work is “leavened by an
assessment of the reasonableness of the employee in failing to return to work.” Frye v.
Vincent Printing Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 34, at *17 (Aug. 2, 2016),
An employee’s subjective belief that she cannot undertake the employment, without
more, is not a reasonable basis upon which to award disability benefits, and “what is
reasonable must rest upon the facts of each case.” Id. at *18.

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       While Ms. Coker was unemployed when her initial compensation period ended,
the Court finds she voluntarily resigned her employment with Fleetwood Homes, as her
work injury did not prevent her from climbing the staircase. Dr. Weiss testified that it
would be reasonable for Ms. Coker to climb a staircase numerous times a day, that doing
so would not be harmful, that he typically does not restrict stair-climbing for a
compression deformity and did so here only because of subjective complaints. He
suggested Ms. Coker’s deconditioned state, rather than her work injury, caused her
difficulty in stair-climbing. While Ms. Coker nobly decided to guard against any risk of
addiction by declining to take pain medication, her choice entails enduring pain at home
and at work. In the end, Ms. Coker did not present medical evidence indicating her work
injury disabled her from climbing a flight of stairs four to six times per day. In fact, Dr.
Weiss stated it was possible and not harmful. Ms. Coker’s subjective belief that she
could not endure the staircase, without more, is not a reasonable basis upon which to
award increased disability benefits. Accordingly, the Court denies her claim for
increased benefits.

IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Coker’s claim for increased benefits is denied, and the case is dismissed with
      prejudice.

   2. The Court assesses the $150.00 filing fee to Fleetwood Homes pursuant to
      Tennessee Compilation Rules and Regulations 0800-02-21-.07 (2016), for which
      execution shall issue as necessary.

   3. Absent an appeal of this order by either party, the order shall become final thirty
      days after issuance.

ENTERED ON THIS THE ____
                    6TH DAY OF SEPTEMBER, 2017.



                                   _____________________________________
                                   Judge Joshua Davis Baker
                                   Court of Workers’ Compensation Claims




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                                     APPENDIX

Exhibits:

   1. Dr. M. Robert Weiss’ Deposition Transcript
   2. Collective Exhibit of July 6, 2015 Restrictions from Dr. M. Robert Weiss and the
      Curriculum Vitae of Dr. M. Robert Weiss
   3. Staircase Photograph
   4. Social Security Administration Disability Report
   5. Restrictions from Dr. M. Robert Weiss Dated July 6, 2015
   6. Restrictions from Dr. M. Robert Weiss Dated October 16, 2015
   7. Separation Notice

Technical record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Request for Scheduling Hearing
   4.   Employer’s Pre-Hearing Statement
   5.   Employee’s Pre-Trial Memorandum
   6.   Joint Pre-Compensation Hearing Statement
   7.   Dr. M. Robert Weiss’ Deposition




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                          CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing was sent to the
following recipients by the following methods of service on this the ___ 6th day of
September, 2017.

Name                 Certified   Via      Via      Service sent to:
                      Mail       Fax     Email
Mark Lambert,                              X       mlambert@forthepeople.com;
Employee’s                                         lhaywood@forthepeople.com;
Attorney

Lee Anne Murray,                             X     leeamurray@feeneymurray.com;
Employer’s                                         sheliasnipes@feeneymurray.com
Attorney




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




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