               COURT OF WORKERS' COMPENSATION CLAIMS
                            AT JACKSON

AMANDA SPAIN                                )   Docket No.: 2015-07-0086
        Employee,                           )
v.                                          )   State File No.: 10923/2015
                                            )
HEALTH SOUTH CANE                CREEK      )   Date of Injury: February 10, 2015
REHAB HOSPITAL
        Employer,                           )
And ·                                       )   Judge: ALLEN PHILLIPS

ARCH INSURANCE COMPANY                      )
                                            )
             Insurance Carrier.             )


           EXPEDITED HEARING ORDER GRANTING TEMPORARY
                        DISABILITY BENEFITS


       THIS CAUSE came before the undersigned Workers' Compensation Judge upon
the Request for Expedited Hearing filed by Amanda Spain (Ms. Spain), the Employee, on
June 16, 2015, with the Tennessee Court of Workers' Compensation Claims, pursuant to
Tennessee Code Annotated section 50-6-239 (2014) to determine if temporary disability
benefits should be initiated.

      The undersigned Workers' Compensation Judge conducted an in-person
evidentiary hearing on July 8, 2015. Ms. Spain testified live at the Expedited Hearing.
No representative of Health South testified.

       Considering the positions of the parties, the applicable law, and the evidence
submitted, the Court hereby finds that Ms. Spain would likely prevail at a hearing on the
merits and is entitled to temporary partial disability benefits.




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                                         ANALYSIS

                                            Issue

                   Whether Ms. Spain is entitled to temporary disability benefits.

                                      Evidence Submitted

       Stipulations of the Parties:

          •    Date oflnjury: February 10, 2015;
          •    Average Weekly Wage: $620.05/Compensation Rate: $413.38;
          •    Dr. Ragsdale is the authorized treating physician; and,
          •    Ms. Spain's period of temporary disability, if owed, began on May 27,
               2015, and continues until Ms. Spain reaches maximum medical
               improvement (MMI) or is able to return to work.

       The Court admitted the following exhibits into evidence:

          1.   Medical records ofDr. Ragsdale;
          2.   Wage Statement;
          3.   Employee Counseling Form dated November 7, 2014;
          4.   Employee Counseling Form dated January 22, 2015; and,
          5.   Employee Counseling Form dated April3, 2015.

       The Court designated the following as the technical record:

          •    Petition for Benefit Determination (PBD);
          •    Dispute Certification Notice (DCN); and,
          •    Request for Expedited Hearing.

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

                                       History of Claim

      Ms. Spain is a thirty-five-year-old resident of Gibson County, Tennessee. Health
South Cane Creek Rehab Hospital (Health South) is a rehabilitation hospital in Martin,
Tennessee. Ms. Spain began working for Health South on August 26, 2002. In 2014 and
2015, Ms. Spain worked as a unit secretary. Her job duties included: transcribing
physicians' orders, creating new admission charts, breaking down discharge charts, and

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hatching. She also answered the telephone, passed lunch trays to residents, and ordered
supplies. She spent hours at a time using her hands and fingers inputting data into a
computer. Her job duties differed from day to day.

       Ms. Spain testified that her symptoms in her hands existed for a couple of years;
however, the problems worsened in January 2015. At that time, she lost grip strength and
her hands were constantly numb. After reporting the injury to her employer, Ms. Spain
selected Dr. Blake Ragsdale from a panel of physicians offered by Health South.

       On February 20, 2015, Ms. Spain saw Dr. Ragsdale and complained of pain,
numbness, and tingling in both hands and wrists. Upon examination, Dr. Ragsdale
diagnosed numbness, wrist pain, and hand pain. Because he suspected carpal tunnel
syndrome, he ordered a nerve conduction study. The study confirmed moderate left
carpal tunnel syndrome and mild right carpal tunnel syndrome. As a result, Dr. Ragsdale
recommended bilateral carpal tunnel release.

       Prior to her first surgery, Health South terminated Ms. Spain on April 3, 2015, for
violation of company policy. Health South cited the following violations as the basis for
her termination: "unapproved overtime, failure to comply with set hours each day, and a
total of three occurrences since the revised attendance policy set forth on January 28,
2015." (Ex. 5.) Ms. Spain disagreed with Health South using the attendance policy as a
basis for termination and contended that other employees who violated the same policy
were not terminated. However, Ms. Spain acknowledged that she did have unapproved
overtime and failed to comply with her set hours each day.

        After her termination, Ms. Spain continued treatment with Dr. Ragsdale. On April
8, 2015, he performed a left carpal tunnel release. Following surgery, Dr. Ragsdale
imposed the following light-duty restrictions: "light use of the [left] hand, no forceful
gripping or pulling, and no lifting weight greater than one pound." (Ex. 1.) Ms. Spain
testified that she was capable of performing her job duties at Health South within these
light-duty restrictions, had she not been terminated. Thus, she does not seek any
temporary disability for the period of time she was on light-duty restrictions for her left
wrist following her first surgery.

        Dr. Ragsdale subsequently performed a right carpal tunnel release on May 27,
2015. The operative report was the last medical record admitted into evidence; therefore,
there is no medical record before the Court indicating the light-duty restrictions assigned
by Dr. Ragsdale following Ms. Spain's right-wrist surgery. However, Ms. Spain's
uncontradicted testimony in Court was that Dr. Ragsdale restricted her from any
repetitive motion or heavy lifting and no lifting greater than two pounds until her next
visit, when he increased the weight restriction to five pounds. Ms. Spain testified that she
could not have done her job as a unit secretary with her restrictions on both hands.
Specifically, she would have been unable to repetitively write, type, or transcribe orders.

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Moreover, Ms. Spain would have been unable to able to pick up a chart, because the
charts weigh in excess of five pounds.

      Ms. Spain remains on light-duty restrictions from Dr. Ragsdale. She still treats for
her work injury and has not yet achieved MMI. Ms. Spain returns to Dr. Ragsdale on
August 17, 2015, for follow-up care.

       Ms. Spain, through counsel, filed a PBD on May 18, 2015, initially seeking both
medical and temporary disability benefits. The parties subsequently resolved the medical
benefits issue. However, the parties did not resolve the temporary disability Issue
through mediation and the Mediation Specialist filed the DCN on June 12, 2015.

                                Ms. Spain's Contentions

       Ms. Spain contends that she is entitled to temporary disability benefits from May
27, 2015, until either she reaches MMI or Dr. Rasgdale returns her to regular duty. She
asserts that, despite her termination, she is nevertheless entitled to temporary disability
benefits, because her restrictions following her surgery on May 27, 2015, would have
precluded her from performing her job duties as a unit secretary for Health South.

                              Health South's Contentions

       Health South concedes that but for Ms. Spain's termination for cause, she would
have been entitled to temporary disability benefits for the stipulated time period
beginning on May 27, 2015, in light of Dr. Ragsdale's restrictions. However, Health
South contends that Ms. Spain's termination for cause precludes her from receiving
temporary disability. Relying on the holding in Carter v. First Source, 92 S.W.3d 367,
(Tenn. 2002), Health South asserts that they are permitted to enforce their workplace
rules and Ms. Spain should not benefit from her legitimate termination for violation of
those work rules.

                        Findings of Fact and Conclusions of Law

                                    Standard Applied

      The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). An employee need not prove every
element of his or her claim by a preponderance of the evidence in order to obtain relief at
an expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd.
Mar. 27, 2015). At an expedited hearing, an employee has the burden to come forward

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with sufficient evidence from which the trial court can determine that the employee is
likely to prevail at a hearing on the merits. Id.

                                   Factual Findings

        Ms. Spain sustained a work-related injury on February 10, 2015, diagnosed as
bilateral carpal tunnel syndrome. Health South accepted the claim as compensable. Dr.
Ragsdale, the authorized treating physician, placed restrictions upon the use of Ms.
Spain's arms following each carpal tunnel release. Ms. Spain testified in an honest and
forthright manner concerning her symptoms in her hands and wrists and the impact of Dr.
Ragsdale's light-duty restrictions on her ability to perform her job. She testified that she
could have performed her job duties as a unit secretary for Health South within her light-
duty restrictions following her left carpal tunnel release.

        Likewise, Ms. Spain's testified regarding her inability to perform her job duties
based upon Dr. Ragsdale's restrictions following her right carpal tunnel release. She
would have been unable to repetitively write, type, or transcribe orders. Moreover, Ms.
Spain would have been unable to able to pick up a chart since the charts weigh in excess
of five pounds.

       Health South terminated Ms. Spain for cause on April 3, 2015. There was no
proof at the Expedited Hearing that Health South could have accommodated Ms. Spain's
light-duty restrictions if she had not been terminated.

                              Application ofLaw to Facts

                  Ms. Spain is entitled to temporary partial disability benefits.

        Temporary total disability (TTD) is payable to an injured employee who is totally
disabled to work by her injury and while she is recovering as far as the nature of the
injury permits. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 776 (Tenn. 2000). Under
Tennessee law, to establish entitlement to temporary total benefits, the employee must
show she was "(1) totally disabled to work by a compensable injury; (2) that there was a
causal connection between the injury and her inability to work; and (3) the duration of
that period of disability." Id. When an employee demonstrates the ability to return to
work or attains MMI, then TTD benefits are terminated. Simpson v. Satterfield, 564
S.W.2d 953, 955 (Tenn. 1978). Here, Ms. Spain has not demonstrated by the evidence
submitted that she was totally disabled from working. Instead, she has restrictions on her
activities. Thus, she is not entitled to temporary total disability benefits. However, Ms.
Spain may still meet the criteria for an award of temporary partial disability (TPD)
benefits.

      Temporary partial disability (TPD) refers to the time during which the injured

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employee is able to resume some gainful employment but has not yet reached maximum
recovery. Williams v. Saturn Corp., No. M2004-01215-WC-R3-CV, 2005 LEXIS 1032,
*3 (Tenn. Workers' Comp. Panel Nov. 15, 2005). As with TTD, there must be adequate
proof of a causal connection between the injury and the disability for an award of TPD.
Health South accepted Ms. Spain's injury as a compensable work injury; therefore, there
is no question that a causal connection existed between the injury and the disability. It is
also agreed that Ms. Spain had not reached MMI during the contested time frame. This
Court finds Ms. Spain has demonstrated the likelihood of prevailing at a hearing on the
merits as to an inability to work within her restrictions from Dr. Ragsdale.

       It is well-settled authority in Tennessee that an employer should be permitted to
 enforce workplace rules without being penalized in a workers' compensation case.
 Carter v. First Source Furniture Group, 92 S.W.3d 367, 368 (Tenn. 2002). The Court
carefully considered Health South's position that, under Carter, Ms. Spain's termination
for cause precludes her from receiving temporary disability benefits even though Health
 South could not have accommodated her light-duty restrictions had she remained
employed. The Court disagrees. An employer cannot avoid paying temporary disability
benefits when they have no light-duty work within an injured worker's restrictions. In
the present case, Health South conceded that, but for Ms. Spain's termination, she would
have been entitled to temporary disability benefits for the relevant period. The Court is
aware of no Tennessee authority that disqualifies an employee from receiving temporary
disability benefits under the facts as shown by the evidence submitted. The Court finds
Ms. Spain credible when she testified that she could not perform the required job
functions when on restrictions from Dr. Ragsdale as of May 27, 2015, and ongoing.
There is no countervailing proof. Accordingly, the Court finds that Ms. Spain has
demonstrated the likelihood of prevailing at a hearing on the merits as to her entitlement
to TPD benefits.

       TPD is two-thirds (2/3) of the difference between the average weekly wage and
what the employee is able to earn in her partially disabled condition. Tenn. Code Ann. §
50-6-207(2)(2014). Here, the stipulated average weekly wage is $620.05 (Ex. 2.) and
Ms. Spain is not, due to her restrictions, able to earn a wage. Therefore, her TPD rate is
two-thirds (2/3) of $620.05 or $413.38. She is entitled to TPD from May 27, 2015, and
ongoing until released without restrictions, or able to resume gainful employment at a job
earning the same or better wage she received prior to her injury, or until placed at MMI.

 IT IS, THEREFORE, ORDERED as follows :

   1. The amount of temporary disability benefit is $413.38 per week based on Ms.
      Spain's average weekly wage of620.05.

   2. Payment of past due benefits in the amount of $4,133.80 shall be made for the
      period from May 27, 2015, to August 3, 2015, a period often weeks.

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   3. Health South or its workers' compensation carrier shall continue to pay to Ms.
      Spain temporary disability benefits in regular intervals, at the rate of $413.3 8 per
      week, until she is no longer eligible for those benefits by 1) reaching MMI; 2) by
      returning to work at a wage equal to or greater than the pre-injury wage, or 3) by
      release without restrictions by the authorized treating physician. Health South's
      representative shall immediately notify the Bureau, Ms. Spain and Ms. Spain's
      counsel of the intent to terminate temporary disability benefits by filing Form C-
      26, citing the basis for the termination.

   4. This matter is set for Initial Hearing on September 15, 2015, at 10:00 a.m. (CDT).

   5. Unless interlocutory appeal of the Expedited Hearing Order is filed,
      compliance with this Order must occur no later than seven (7) business days
      from the date of entry of this Order as required by Tennessee Code
      Annotated section 50-6-239(d)(3) (2014).       The Insurer or Self-Insured
      Employer must submit confirmation of compliance with this Order to the
      Bureau by email to WCCompliance.Program@tn.gov no later than the
      seventh (7th) business day after entry of this Order. Failure to submit the
      necessary confirmation within the period of compliance may result in a
      penalty assessment for non-compliance.

   6. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
      253-1471 or (615) 532-1309.


       ENTERED this the 4th day of August, 201 .



                                  Judge Allen Phillip
                                  Court of Workers' Com pens

Initial Hearing:

       An Initial Hearing has been set with Judge Phillips, Court of Workers'
Compensation Claims. You must call 731-422-5263 or toll free at 855-543-5038 to
participate in the Initial Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without

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your further participation. All conferences are set using Central Time (CT).

Right to Appeal:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within seven (7) business days of the
      date the Workers' Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten ( 10) calendar days after the filing of a notice of appeal,
      payment must be received by check, money order, or credit card
      payment. Payments can be made in person at any Bureau office or by United
      States mail, hand-delivery, or other delivery service. In the alternative, the
      appealing party may file an Affidavit of Indigency, on a form prescribed by the
      Bureau, seeking a waiver of the filing fee. The Affidavit of Indigency may be
      filed contemporaneously with the Notice of Appeal or must be filed within ten
      (10) calendar days thereafter. The Appeals Board will consider the Affidavit of
      Indigency and issue an Order granting or denying the request for a waiver of the
      filing fee as soon thereafter as is practicable. Failure to timely pay the filing fee
      or file the Affidavit of Indigency in accordance with this section shall result in
      dismissal of the a.ppeal.

   5. The parties, having the responsibility of ensuring a complete record on appeal,
      may request, from the Court Clerk, the audio recording of the hearing for the
      purpose of having a transcript prepared by a licensed court reporter and filing it
      with the Court Clerk within ten ( 10) calendar days of the filing of the Expedited
      Hearing Notice of Appeal. Alternatively, the parties may file a statement of the
      evidence within ten (1 0) calendar days of the filing of the Expedited Hearing
      Notice of Appeal. The Judge must approve the statement of the evidence before
      the Court Clerk may submit the record to the Clerk of the Appeals Board.

   6. If the appellant elects to file a position statement in support of the interlocutory
      appeal, the appealing party shall file such position statement with the Court Clerk
      within three (3) business days of the filing of the Expedited Hearing Notice of
      Appeal, specifying the issues presented for review and including any argument in
      support thereof. If the appellee elects to file a response in opposition to the

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       interlocutory appeal, appellee shall do so within three (3) business days of the
       filing of the appellant's position statement.

                            CERTIFICATE OF SERVICE

        I hereby 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 this the 4th day of
August, 20 15.


Name                       Certified    Via        Via    Service sent to:
                            Mail        Fax       Email

James Webb                                          X     amy~newmanwebb.com


Eugene S. Forrester, Jr.                            X     esf(a)farris-law.com



                                              _/)         ~~ -
                                         P~h ·urn, Clerk of Court
                                         Court of orkers' Compensation Claims
                                         WC.CourtClerk@tn.gov




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