             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

Miguel Betances                                    ) Docket No. 2016-08-0883
                                                   )
v.                                                 ) State File No. 59040-2016
                                                   )
Brock Services, LLC, et al.                        )
                                                   )
                                                   )
Appeal from the Court of Workers’                  )
Compensation Claims                                )
Allen Phillips, Judge                              )

                      Affirmed and Remanded - Filed August 1, 2017

In this interlocutory appeal, the employer asserts the trial court erred in awarding the
employee temporary disability benefits, arguing the evidence supports its contention that
the employee was terminated for cause for abandoning his job, thereby eliminating its
obligation to provide temporary disability benefits. The parties agreed the employee
suffered a compensable work-related injury, but disagreed whether the employee
voluntarily abandoned his job and whether he was terminated for cause for violating the
employer’s attendance policy. Following an expedited hearing, the trial court found the
employer did not terminate the employee for cause and ordered temporary disability
benefits. The employer has appealed. Discerning no error, we affirm the trial court’s
decision and remand the case for further proceedings as may be necessary.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, and Judge Timothy W. Conner joined.

Marianna L. Jablonski, Knoxville, Tennessee, for the employer-appellant, Brock
Services, LLC

Miguel Betances, Memphis, Tennessee, employee-appellee, pro se1


1
  Mr. Betances was represented by counsel at the expedited hearing. During the pendency of this appeal,
he discharged his attorney, electing to proceed pro se. Prior to his discharge, Mr. Betances’ attorney
timely filed a brief on appeal. We have considered the brief submitted by counsel, but have not
considered the filings submitted by Mr. Betances prior to his attorney’s withdrawal from the case. The
filings submitted by Mr. Betances subsequent to the attorney’s discharge were not timely and no motion
to allow a late-filed brief was filed. Accordingly, we have not considered the untimely submittals. See

                                                  1
                                     Memorandum Opinion2

       Miguel Betances (“Employee”) was working for Brock Services, LLC
(“Employer”), as a painter when he suffered injuries to his left hip, left hand, and right
elbow as a result of a fall. Employer accepted the claim as compensable and provided
medical care and some temporary disability benefits. However, Employer terminated
temporary disability benefits after determining Employee had abandoned his job, which
Employer contends relieved it of its obligation to pay temporary disability benefits.
Employee contends he did not voluntarily abandon his job, but was instructed by his
supervisor to leave the jobsite because of his complaints of pain resulting from his work-
related injuries.

       Employee’s fall occurred on July 18, 2016. He received medical care the
following day at Concentra Medical Center, and the attending medical care provider
returned Employee to work with restrictions. The parties dispute whether the modified
duties assigned to Employee complied with those restrictions, but the evidence is
undisputed that Employee continued to work for Employer through July 29, 2016. After
that date, the parties’ accounts of the events diverge.

       Employee, the only witness to testify in person at the expedited hearing, stated that
during the time he was working with medical restrictions, his supervisor threatened to fire
him “whenever [he] complained about pain,” and that his supervisor required him to
perform work that violated the assigned restrictions. He further testified that on August
1, 2016, his supervisor, Felix Ortiz, dismissed him from the jobsite at the direction of
Marcus House, the project manager. Employee alleges his company identification badge
was taken from him and he was instructed not to return to the jobsite.

       Through testimony presented in affidavits, Employer disputed Employee’s version
of events. Employer asserted that after July 29, 2016, Employee simply stopped
appearing for work. Mr. Ortiz’s affidavit indicates he attempted to contact Employee on
multiple occasions regarding why he had not shown up for work. On each occasion, he
indicated Employee provided an excuse and a promise he would be at work the following
day. After several days of following up with Employee regarding a return to the jobsite
and a visit to Employee’s home to discuss his absences, Mr. Ortiz considered Employee
to be a “no call/no show” and to have “voluntarily left [his] position with [Employer].”


Lightfoot v. Xerox Business Servs., No. 2015-01-0233, 2016 TN Wrk. Comp. App. Bd. LEXIS 43, at *12-
14 (Tenn. Workers’ Comp. App. Bd. Sept. 12, 2016).
2
 “The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Appeals Bd. Prac. & Proc. § 1.3.

                                                   2
Employer alleges it administratively terminated Employee on August 14, 2016, based
upon job abandonment and/or Employee’s violation of its attendance policies.

        On September 20, 2016, Employer sent correspondence to Employee stating it had
been advised that Employee’s treating physician “has continued your release to return to
work on restricted work duty medical release status.” It stated the letter “is to advise you
that we do have work available for you at our Brock worksite and request you return to
work.” Additionally, it stated that Employer “will work with you on any of the work
restrictions and medical appointment schedules you may continue to have,” and that
Employee “must respond to this letter by calling Allison Edward[s] . . . within five (5)
days of your receipt of this letter in order to discuss your return to work schedule with
Brock Services.” Finally, the letter stated “[i]f you do not call Ms. Edward[s] or return to
work as requested, you may not continue to receive any temporary disability benefits.”

        Employee was in the Dominican Republic, his country of origin, when he received
the letter. He testified “[t]his is a communication made on September 20th, one day after
I had informed the case manager that on the 24th, I was going to be going out of the
country for a couple of days.” He testified his wife received the letter and let him know
what was in it; that he did not receive the letter until October 13, 2016; and that “as soon
as [he] got notice of this letter, [he] bought a ticket and [he] flew back.” He testified he
called Ms. Edwards on October 18 and she told him to come to her office the following
day and to “bring [her] all of [his] medical restrictions.” Employee took the medical
records to Ms. Edwards as instructed. Ms. Edwards stated in an affidavit that Employee
“came into [her] office on October 19, 2016, to inquire about returning to work for Brock
Services,” and that she informed him “the position offered to him on September 20, 2016
was no longer available.”

       Employer paid Employee his regular wages through August 14, 2016, and it paid
temporary disability benefits through October 5, 2016. On November 16, 2016,
Employee filed a petition for benefit determination requesting that Employer be
compelled to resume paying temporary disability benefits. Following an expedited
hearing, the trial court concluded Employee’s termination was not for cause and ordered
Employer to pay past and ongoing temporary disability benefits. Employer has appealed.

       The trial court found Employee’s version of the events concerning his termination
to be credible, stating “when considered against the affidavits of the Brock employees
and the evidence discussed further within this order, the Court also finds the evidence
preponderates in favor of [Employee].” The trial court concluded Employer’s position
that Employee abandoned his job and had consequently been administratively terminated
in mid-August was inconsistent with Employer’s behavior, finding Employer “did not
accommodate [Employee’s] light duty restrictions or provide a justifiable reason for not
doing so.” Specifically, the trial court observed that Employer continued to pay
Employee his salary until August 14, 2016; that Employer paid temporary disability

                                             3
benefits until October 5, 2016; that Employer had never provided Employee with a notice
of separation or any other document indicating the employment relationship had ended;
and that Employer had offered Employee a light duty position via correspondence dated
September 20, 2016.

        While the prior payment of temporary disability benefits cannot be considered a
binding determination of an employer’s obligation to make future payments, see Tenn.
Code Ann. § 50-6-205(d)(2) (2017), a trial judge may consider whether such payments
are consistent with a position advanced by an employer. Moreover, the trial court found
the statement in the supervisor’s affidavit that light duty work “would have remained
available to [Employee] throughout his medical treatment if he had continued to come to
work” to conflict with Ms. Edwards’ statement to Employee on October 19, 2016 that the
light duty position “was no longer available.” The trial court concluded that “[i]n
summary, the Court finds [Employer] did not accommodate [Employee’s] light duty
restrictions or provide a justifiable reason for not doing so. It could have, but did not,
enforce its attendance rule in August.”

       We review the trial court’s decision with “a presumption that the findings and
conclusions of the workers’ compensation judge are correct, unless the preponderance of
the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2017). Furthermore,
when the trial court has seen and heard the witnesses, considerable deference must be
given to the trial court’s credibility findings. Tryon v. Saturn Corp., 254 S.W.3d 321,
327 (Tenn. 2008). As we have previously stated,

      even though an employee has a work-related injury for which temporary
      benefits are payable, the employer is entitled to enforce workplace
      rules. Thus, an employee’s termination due to a violation of a workplace
      rule may relieve an employer of its obligation to pay temporary disability
      benefits if the termination was related to the workplace violation. When
      confronted with such a case, courts must “consider the employer’s need to
      enforce workplace rules and the reasonableness of the contested rules.” An
      employer will not be penalized for enforcing a policy if the court
      determines “(1) that the actions allegedly precipitating the employee’s
      dismissal qualified as misconduct under established or ordinary workplace
      rules and/or expectations; and (2) that those actions were, as a factual
      matter, the true motivation for the dismissal.”

Barrett v. Lithko Contracting, Inc., Nos. 2016-06-0186, -0188, & -0189, 2016 TN Wrk.
Comp. App. Bd. LEXIS 70, at *9 (Tenn. Workers’ Comp. App. Bd. June 17, 2016)
(citations omitted).

      As in the present case, Barrett concerned a dispute between an employer and an
employee with respect to whether the employee’s termination was for cause. We

                                            4
observed that the “testimony presented by the parties was conflicting, and the trial court
had to resolve those conflicts.” Id. at *11. The same is true here. Employer presented
affidavit testimony indicating Employee had abandoned his job. Employee testified he
did not abandon his job, but was dismissed from the jobsite because he complained of
pain resulting from his work-related injuries. The trial court considered the conflicting
testimony and Employer’s continued payment of regular wages for two weeks followed
by its payment of temporary disability benefits and concluded Employee had not been
terminated for cause.

       Considering the record in its entirety, we find the evidence does not preponderate
against the trial court’s determination that Employee would likely prevail at trial in
establishing his entitlement to past and ongoing temporary disability benefits.
Accordingly, the trial court’s decision is affirmed, and the case is remanded for any
further proceedings that may be necessary.




                                            5
                     TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                       WORKERS’ COMPENSATION APPEALS BOARD


Miguel Betances                                          )   Docket No.   2016-08-0883
                                                         )
v.                                                       )   State File No. 59040-2016
                                                         )
Brock Services, LLC, et al.                              )


                                     CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 1st day of August, 2017.
 Name                    Certified   First Class   Via   Fax      Via     Email Address
                         Mail        Mail          Fax   Number   Email

 Miguel Betances                                                    X     armandobetances@hotmail.com
 Marianna L. Jablonski                                              X     mjablonski@wimberlylawson.com
 Allen Phillips, Judge                                              X     Via Electronic Mail
 Kenneth M. Switzer,                                                X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov
