                                                                                   FILED
                                                                                 Feb 27, 2019
                                                                                 12:52 PM(CT)
                                                                              TENNESSEE COURT OF
                                                                             WORKERS' COMPENSATION
                                                                                    CLAIMS




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

WILLIS T. GOOD,                              ) Docket No. 2017-05-0597
           Employee,                         )
v.                                           )
                                             )
VICKERS CONCRETE                             ) State File No. 99668-2015
REINFORCING, INC.,                           )
         Employer,                           )
And                                          )
                                             )
AIG CAS. CO.,                                ) Judge Dale Tipps
          Carrier.                           )


  COMPENSATION HEARING ORDER DENYING SUMMARY JUDGMENT



       This matter came before the Court on Vickers’ Motion for Summary Judgment.
The central legal issue is whether Mr. Good failed to present evidence that he is entitled
to increased permanent partial disability (PPD) benefits, an essential element of his claim.
For the reasons below, the Court holds Vickers is not entitled to summary judgment.
                                   Procedural History
      Mr. Good suffered a compensable back injury in December 2015. The court-
approved settlement provided that the initial compensation period would expire in
September 2018. After the initial compensation period expired, Mr. Good filed a Petition
for Benefit Determination seeking increased PPD benefits under Tennessee Code
Annotated section 50-6-207(3)(B). Vickers then filed this Motion for Summary
Judgment, Mr. Good filed a response, and the Court heard arguments on February 21,
2019.
                                           Facts
       Vickers filed a statement of eighteen undisputed material facts with citations to the
record in compliance with Tennessee Rules of Civil Procedure 56.03. Mr. Good admitted


                                             1
all of the proposed facts in his response, although he qualified or explained some of the
statements. The material undisputed facts are summarized as follows:
    1. Mr. Good’s hourly rate of pay when he was injured was $23.00.
    2. When Mr. Good’s initial compensation period ended on September 8, 2018, he
       was working for Charter Construction.
    3. At Mr. Good’s request, Charter agreed to pay him at least the same hourly rate he
       received at Vickers.
       Based on these facts, Vickers argued the Court should grant summary judgment
because it affirmatively negated an essential element of Mr. Good’s claim – that he was
not “receiving wages or a salary that is less than 100% of the wages or salary that [he]
received from [Vickers] on the date of injury.”
       Mr. Good filed additional documents in support of his opposition to the motion,
including his affidavit and that of Richard Wilson, one of Charter’s owners. 1 These
affidavits state that:
    1. Charter pays Mr. Good an annual salary of “approximately $40,000.00” or
       $769.23 per week.
    2. Mr. Good works approximately thirty hours per week, but his actual hours vary.
    3. Charter is aware of Mr. Good’s permanent restrictions and modifies his duties
       accordingly.
      Mr. Good argued that he is entitled to either increased PPD benefits under section
50-6-207(3)(B) or “extraordinary” benefits under section 50-6-242. He contended that
when his compensation period ended, his wages at Charter were less than the wages he
earned at Vickers at the time of injury.
       Vickers argued that Mr. Good’s hourly rate of pay at Charter was higher than his
hourly rate when he was injured. Relying on Marshall v. Mueller, 2016 TN Wrk. Comp.
App. Bd. LEXIS 74 (July 11, 2016), Vickers contended Mr. Good cannot prove his
wages were lower when his compensation period ended, an essential element of his claim
for additional PPD benefits.
                                        Law and Analysis
        Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04 (2018).

1
  Mr. Good also submitted vocational expert reports and a physician certification form in support of his
claim for “extraordinary” benefits under Tennessee Code Annotated section 50-6-242. Because these
documents are not necessary for determination of the Motion for Summary Judgment, the Court will not
summarize them here.

                                                   2
       As the moving party, Vickers must do one of two things to prevail on its motion:
(1) submit affirmative evidence that negates an essential element of the nonmoving
party’s claim, or (2) demonstrate that the nonmoving party’s evidence is insufficient to
establish an essential element of the nonmoving party’s claim. Tenn. Code Ann. § 20-16-
101 (2018); see also Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235,
264 (Tenn. 2015). If Vickers is successful in meeting this burden, the nonmoving party –
Mr. Good – must then establish that the record contains specific facts upon which the
Court could base a decision in his favor. Rye, at 265.
       The essential element at issue in this case is this: To receive increased PPD
benefits, Mr. Good must demonstrate that when his initial compensation period ended, he
was “receiving wages or a salary that is less than 100% of the wages or salary that [he]
received from [Vickers] on the date of injury.” Tenn. Code Ann. § 50-6-207(3)(B).2
        Mr. Good testified in his deposition that his hourly wage at Vickers was $23.00.
However, in the affidavit filed in response to this motion, he also said he worked
overtime at $34.50 per hour. Mr. Good’s affidavit goes on to state that his total earnings
at Vickers for the fifty-two weeks before the injury were $60,526.29. Regarding his
earnings at Charter, Mr. Good testified that his hourly rate was $25.00. However, he said
in his affidavit that he only worked approximately thirty hours per week and earned only
$40,188.42 in the last calendar year.
       The question then is how the Court should calculate “wages” as the term is used in
section 50-6-207(3)(B). The Appeals Board considered this question in Marshall and
concluded, “the General Assembly’s failure to provide a definition of ‘wages’ under
these circumstances suggests that the interpretation applied under pre-reform law would
continue to be applicable to post-reform cases.” Marshall, at *23.3
       The pre-reform cases discussed at length in Marshall generally held that “wages”
did not mean “average weekly wage” but rather the “hourly rate of pay for an employee
who is compensated on an hourly basis.” Id. at *12. However, those cases were
predicated on the question of whether the employee returned to work for the pre-injury
employer at his pre-injury wage. Thus, even though the courts dealt with thorny
questions about wages, at least the basic nature of those wages was unlikely to change.


2
  This is also the threshold issue for Mr. Good’s claim for extraordinary benefits because section 50-6-242
provides that a party seeking those benefits must first “be eligible for increased benefits under § 50-6-
207(3)(B).”
3
  The Court is bound by this determination but notes that the General Assembly, in drafting the newer
section 50-6-242(a)(2)(C), actually specified the use of the employee’s “average weekly wage,” while
also imposing a requirement based on the holdover language in 50-6-207(3)(B). This apparent conflict,
along with the addition of “or salary” in section 50-6-207(3)(B), might suggest a general intent to
interpret “wage” as “average weekly wage.”

                                                    3
In other words, an employee who was paid on an hourly basis before the injury was still
an hourly employee when he returned to work.4
       Mr. Good, on the other hand, changed employers and claimed that his pay
arrangement is much different. Specifically, his affidavits state that he is now a salaried
employee who receives the same pay regardless of the hours he works. This raises the
question of how the Court should compare his pre- and post-injury earnings. Vickers
contended the Court should divide Mr. Good’s annual earnings at Charter by the number
of hours actually worked to ascertain his hourly rate of pay.
       The Court finds the particular language of section 50-6-207(3)(B), which differs
from the pre-reform law, suggests a different approach. It provides that Mr. Good might
be entitled to additional benefits if he is “receiving . . . a salary that is less than 100% of
the wages or salary that [he] received from [Vickers] on the date of injury.” (emphasis
added). The Court concludes that this provision requires it to simply compare Mr.
Good’s total (100%) wages at Vickers with his total Charter salary.
       According to Mr. Good’s affidavit, his total wages at Vickers for the fifty-two
weeks before “the date of injury” were $60,526.29. His current salary at Charter is
$39,999.96, which is less than 100% of his pre-injury wages. If these earnings numbers
were proven at a compensation hearing, they would meet the requirements of Section 50-
6-207(3)(B). The same would be true even if Mr. Good’s overtime earnings were
subtracted from his total wages.5
       Vickers disputed whether Mr. Good is actually a salaried employee based on his
deposition testimony that his hourly rate of pay at Charter is $25. However, the Court is
required to review the evidence in the light most favorable to the nonmoving party and to
draw all reasonable inferences favoring the nonmoving party. Martin v. Norfolk S. Ry.
Co., 271 S.W.3d 76, 84 (Tenn. 2008). Having carefully reviewed and considered the
evidence in the light most favorable to Mr. Good, the Court finds that Vickers has not
demonstrated that Mr. Good’s evidence is insufficient at the summary judgment stage to
establish he is receiving wages or a salary that is less than 100% of his wages or salary on
the date of injury. See Rye, 477 S.W.3d at 265. At most, it has identified conflicting
testimony regarding a material fact.

        Based on the above, the Court finds at least one genuine issue of material fact
exists (whether Mr. Good is an hourly or salaried employee) and holds Vickers is not
entitled to summary judgment as a matter of law. Therefore, the Court denies the motion.

4
   The pre-reform cases generally addressed issues of lack of overtime pay, changes in collective
bargaining agreement rates, and plant-wide pay reductions. Even in the post-reform Marshall case, the
Board dealt with a “summer hours” issue involving an employee who returned to work for the pre-injury
employer.
5
  See King v. Gerdau Ameristeel US, Inc., No. W2011-01414-WC-R3-WC, 2012 Tenn. LEXIS 488 (June
25, 2012).

                                                 4
      IT IS SO ORDERED.


      ENTERED February 27, 2019.



                                       ______________________________________
                                       Judge Dale A. Tipps
                                       Court of Workers’ Compensation Claims


                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the Order Denying Summary
Judgment was sent to the following recipients by the following methods of service on
February 27, 2019.


  Name                    Certified   Via      Service Sent To
                          Mail        Email
  Rick L. Moore, Esq.                   X      rmooremh@mooreandhedges.com
  Employee’s Attorney
  Gregory H. Fuller,                    X      gfuller@mijs.com
  Esq.
  Employer’s Attorney




                                       ______________________________________
                                       Penny Shrum, Court Clerk
                                       Wc.courtclerk@tn.gov




                                         5
                                 II
                                  I                                                       'I



                          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: "Compensation Hearing 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 ofthe 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 lndigency 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.
II                                                                                                                      I.
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                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                      800-332-2667

                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ __ _ _ _ _ __                       2. Address: - - - - - - - -- - - --

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - -- - - -- -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -

             - - - - - - - - - - - - - -- --                  Relationship: - - - - - -- - - -- - -

             - - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - -- - - -- -

     6. I am employed by: - - - - - - - - - - -- - - -- - - - - - -- - - -- - -

             My employer's address is: - - - - -- - - - -- - - - - - -- - -- - - - -

             My employer's phone number is: - - - -- - - - -- - - - - - -- - - -- - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ __

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are:     ! ~                                                      li
                                                                                  I
                          '

        Rent/House Payment $              per month     Med icai/Dental $ _ _ ___ per month

        Groceries       $           per month           Telephone       $ _ __ _ _ per month
        Electricity     $           per month           School Supplies $ _ _ _ _ _ per month
        Water           $           per month           Clothing        $ _ _ _ _ _ per month
        Gas             $           per month           Child Care      $ _ _ _ _ _ per month
        Transportation $            per month           Child Support   $ _ _ _ _ _ per month
        Car             $            per month
        Other           $           per month (describe:


10. Assets:

        Automobile              $ _ _ _ __
                                                        (FMV) - - - - - - - - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ __
                                                        (FMV) - - - - - - - - - -
        Other                   $ _ _ _ __              Describe:_ _ _ _ __ _ __ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

____ dayof _____________________ , 20_ __




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ _ __




LB-1108 (REV 11/15)                                                                          RDA 11082
