     FILED
   Nov 01, 2018
   01:24 PM(ET)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
and the air-conditioner refrigerant saturated the cab where he was confined. As Mr.
Daniels attempted to descend from the cab, his overalls caught on a seatbelt holder,
causing him to lose his balance and fall. He struck his head on the tractor tire and fell to
the ground, suffering additional injuries to his legs and left shoulder. Due to the
refrigerant exposure, Mr. Daniels became nauseated, suffered breathing problems and
dizziness, and sustained chemical burns to his face.            He also suffered from
lightheadedness, agitation, lethargy, loss of sensation and memory, and depression.

       Mr. Daniels received authorized treatment with Dr. Michael McCollum for his
legs and Dr. Phillip McDowell for his left shoulder. Dr. McDowell performed a left
rotator cuff repair in March 2018. Mr. Daniels submitted no medical records from his
authorized treating physicians but asserted that his treating physicians have not released
him nor placed him at maximum medical improvement (MMI).

        On December 17, 2017, Dr. C.M. Salekin evaluated Mr. Daniels at his attorney's
request. Dr. Salekin diagnosed left C6 and C7 radiculopathies, left shoulder arthopathy,
bilateral knee injuries, insomnia-induced somatic pain leading to excessive daytime
sleepiness and fatigue, chemical burns to both eyes, and compromised lung function both
restrictive and obstructive. He placed Mr. Daniels at MMI for his eyes and lungs as of
the date of his examination and assigned a partial medical impairment of 32% to the
whole person. Dr. Salekin noted that an ophthalmologist should complete impairments
for the blurred vision, and he cannot assess impairments for the neck, bilateral knees, and
left shoulder without MRis of those areas. He determined Mr. Daniels's work incident
was more likely than not primarily responsible for his injuries but noted the work incident
aggravated his pre-existing right knee injury. Dr. Salekin noted that, due to the injury, he
took Mr. Daniels completely off work from October 19, 2017, through the date of his
examination. He also assigned permanent restrictions of no overhead reaching with the
left arm and no pushing, pulling or lifting more than ten pounds, and he recommended
that Mr. Daniels avoid frequent knee bending.

        While receiving authorized treatment for his work injury, Mr. Daniels requested
temporary disability benefits, which Daniels Farms's carrier denied. He asserted he was
unable to work full time on a sustained basis since his work injury. He acknowledged
that he was not paid a salary at the time of his injury but agreed that Daniels Farms paid
the following:

   1. Payment of his annual mortgage of $5,600 per year, or $466 per month;

   2. Use of a truck valued at approximately $500 per month;

   3. Payment of his household utilities of approximately $350 per month;

   4. Use of a grocery allowance of $1,200 per month;

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    5. Unspecified payments for truck fuel, clothes, and miscellaneous personal
       necessities; and

   6. Unspecified "farm profits" deposited into his personal checking account.

Mr. Daniels asserted that theses allowances and paid expenses equated to an average
weekly wage of $957.69 and a workers' compensation rate of $638.39. Alternatively,
Mr. Daniels argued he was entitled to a weekly compensation rate based on the earnings
of a similarly-situated supervisor/tobacco grower who earned $25 per hour and received
furnished housing, utilities, unlimited internet, a personal vehicle, fuel and insurance. He
claimed an average weekly wage of $1,000 using the similarly-situated employee's
wages. As another alternative, he claimed he is entitled to the minimum weekly
compensation rate.

       Mr. Daniels admitted he continued to receive the benefits and allowances outlined
above. His wife, Michelle Daniels, the bookkeeper for Daniels Farms, confirmed the
continuation of Mr. Daniels's benefits through the date of the hearing.

        Mr. Daniels testified that he was unable to perform the more physical
requirements of his job. Instead, he mainly observed cattle and fence lines from his truck
or using a drone, supervised others, and offered advice and guidance to his daughter,
Whitney Daniels, who has been in training to take over the farm since 2014. Mr. Daniels
and his wife testified that the farm lost profits following his injury because he was unable
to do the physical tasks of his job. Both admitted, however, a major tobacco crop was
destroyed when a utility company over-sprayed along the utility lines, resulting in a
significant profit loss.

       Since the work injury, Mr. Daniels admitted he ran for mayor and attended two
candidate forums. However, he testified his daughter campaigned for him, and he never
intended to take office. He also admitted that he suffered a later work injury on the farm
in May 2018, which is the subject of a separate claim.

                       Findings of Fact and Conclusions of Law

       At an Expedited Hearing, Mr. Daniels must present sufficient evidence
demonstrating that he is likely to prevail at a hearing on the merits. See McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27,
2015).

       The issue is whether Mr. Daniels is entitled to temporary disability benefits. To
receive temporary total disability benefits, an injured employee must prove (1) total
disability from working as the result of a compensable injury; (2) a causal connection

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between the injury and the inability to work; and (3) the duration of the period of
disability. Shepherd v. Haren Constr. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS
15, at * 13 (Mar. 30, 2016). As the name implies, an injured employee is entitled to
temporary partial disability benefits if his temporary disability is not total. See Tenn.
Code Ann. § 50-6-207(1)-(2) (2018). Specifically, "[t]emporary partial disability refers
to the time, if any, during which the injured employee is able to resume some gainful
employment but has not reached maximum recovery." Frye v. Vincent Printing Co.,
2016 TN Wrk. Comp. App. Bd. LEXIS 34, at *15-16 (Aug. 2, 2016.)

        Here, Mr. Daniels admitted he did not receive a salary or wages at the time of his
injury. Instead, he received benefits and allowances. Following his work injury, he
continued to receive the same benefits and allowances but claimed the farm suffered a
loss in profits due to his injury, which resulted in no "money in his pocket." He claimed
he was unable to work full time on a sustained basis but admitted he worked some and, in
fact, subsequently suffered a new work injury. He did not demonstrate the extent of the
profit loss due to his work injury. Moreover, he did not introduce evidence that Daniels
Farms hired someone to perform the physical components of his job, but he simply
provided the wages of someone already employed by Daniels Farms as of the date of his
mJury.

      In addition, although Dr. Salekin indicated Mr. Daniels was totally disabled from
working after the injury, Mr. Daniels confirmed he was able to continue to observe,
oversee, and provide advice and instruction despite the fact that he was unable to do the
more physical tasks. The Court concludes Mr. Daniels failed to demonstrate that he was
temporarily totally or partially disabled from working due to his injury.

       Additionally, the Court finds that Daniels Farms continued to provide Mr. Daniels
the same benefits and allowances he received before the work injury. The continuation
of these benefits and allowances is akin to that of an employer who continues to pay an
injured employee his or her full wages instead of temporary disability benefits. In these
circumstances, he is not entitled to temporary disability benefits. Accordingly, the Court
denies his claim for these benefits.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Daniels's claim against Daniels Farms and its workers' compensation carrier
      for the requested benefits is denied at this time.

   2. This matter is set for a Scheduling Hearing on February 14, 2019, at 9:30 a.m.
      Eastern Time. The parties must call 865-594-0091 or 855-543-5041 toll-free to
      participate in the Scheduling Hearing. Failure to appear by telephone may result
      in a determination of the issues without the party's participation.


                                            4
ENTERED November 1, 2018.




                                   PAMELA B.      HNSON, JUDGE
                                   Court of Workers' Compensation Claims


                                       APPENDIX

Technical Record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Employee's Submissions
   4. Employer Submissions
   5. Fund Submissions
   6. Show Cause Order
   7. Request for Scheduling Hearing
   8. Order Setting Status Conference
   9. Employer's Notice of Filing- Notice of Controversy
   10. Amended Petition for Benefit for Determination
   11. Request for Expedited Hearing
   12. Employee's Affidavit in Support of Request for Expedited Hearing
   13. Employee's Notice of Intent to Use Standard Form Medical Report in Lieu of
       Deposition
   14.Employer's Objection to Request for Expedited Hearing
   15. Employer's Witness and Exhibit List
   16. Employer's Pre-Hearing Statement
   17.Employee's Notice of Filing of Deposition Transcripts
   18. Employee's Pre-Hearing Statement

       The Court did not consider attachments to Technical Record filings unless
admitted into evidence during the Expedited Hearing. The Court considered factual
statements in these filings or any attachments to them as allegations unless established by
the evidence.

Exhibits:
       1. Deposition of Melvin Daniels
       2.   Deposition of Michelle Daniels
       3.   Deposition of Whitney Daniels
       4.   First Report of Work Injury
       5.   Standard Form Medical Report for Industrial Injuries, Form C-32

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       6. Affidavit of Melvin Clark
       7. W52 and Additional Expenses - Jonatan Torrescano Jimenez


                            CERTIFICATE OF SERVICE

        I certify that a true and correct copy of the Expedited Hearing Order was sent to
the following recipients by the following methods of service on November 1, 2018.


Name                     Certified   Fax       Email   Service sent to:
                          Mail
David H. Dunaway,                               x      dhdunaway@aol.com
Employee's Attorney

Richard Clark,                                  x      rclark@eraclides.com
Employer's Attorney

Lindsay N. Hall,                                x      Lindsay .N.Hall@tn.gov
Fund's Attorney




                                               l RUM, Court Clerk
                                        WC.Coor ·CJerk@tu.gov




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