                                                                                   FILED
                                                                                 Oct 09, 2018
                                                                                11:40 AM(CT)
                                                                              TENNESSEE COURT OF
                                                                             WORKERS' COMPENSATION
                                                                                    CLAIMS




            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                              AT GRAY

PHILLIP HALL,                                 )   Docket Number: 2018-02-0063
          Employee,                           )
v.                                            )
LIFE CARE CENTERS OF                          )   State File Number: 98623-2017
AMERICA, INC.,                                )
         Employer,                            )
and                                           )
OLD REPUBLIC INSURANCE CO.,                   )   Judge Brian K. Addington
         Carrier.                             )


                           EXPEDITED HEARING ORDER


       This case came before the Court on October 4, 2018, on Phillip Hall's Request for
Expedited Hearing. The issue is whether he is entitled to temporary partial disability
benefits. For the reasons below, the Court holds that Mr. Hall is not likely to prevail at a
hearing on the merits in proving that he is entitled to the requested benefits.

                                    History of Claim

       Life Care hired Mr. Hall as a certified nursing assistant in October 2017. He
alleged three injuries before his employment ended in April 2018. For the purposes of
this hearing, the parties focused on Mr. Hall's January 10, 2018 right great-toe fracture
and his April 4, 2018 back injury. Life Care did not dispute the injuries occurred at work.

        Dr. Jeffrey Dikis treated Mr. Hall's toe. He restricted his work duties and placed
him in a walking boot, which exposed his toes. Life Care provided light-duty work after
the injury. Mr. Hall reinjured his toe at work on March 14 when he hit it on a stool. He
testified he fell at least four times after January 10 due to the injury and the boot.

      During this time, Mr. Hall underwent work-related problems with other
employees. He and co-workers complained about each other. The situation worsened
and Life Care conducted an investigation. Mr. Hall admitted that he and a co-worker


                                             1
argued over a bonus that Life Care paid the co-worker. 1 Mr. Hall denied making
inappropriate comments towards co-workers. He insisted they misconstrued his words.
He accused them of making sexual, rude comments towards him and touching him.
Several co-workers' statements indicated Mr. Hall often made sexual or inappropriate
comments at work. 2

      During the evening of April 3, Life Care decided to suspend Mr. Hall. Misty Key,
Executive Director, tried to contact him but was unable to reach him by phone. When
Mr. Hall reported to work the next morning, Ms. Key asked him into a meeting and
suspended him for conduct that created a poor image for the facility. Before the meeting,
Mr. Hall slipped on a wet floor due to the boot. After his suspension, Mr. Hall called
from home and requested treatment for back pain.

       Mr. Hall treated with Takoma Health Systems on April 4 for his back. Providers
there restricted him to work where he could sit. Later, Life Care authorized Dr. Craig
Schmalzreid to treat his back injury.

      Before seeing Dr. Schmalzreid, Life Care terminated Mr. Hall on April 9 for a
code of conduct violation, which it described as "[P]oor image for the facility."

       Later, Mr. Hall saw Dr. Schmalzreid, who diagnosed his back injury as acute pain
and sciatica and assigned restrictions.

       Meanwhile, Dr. Dikis placed Mr. Hall at maximum medical improvement for his
toe and released him to full duty on April 20. Dr. Schamlzreid released him to full duty
work on April 26.

       Life Care paid temporary partial disability benefits from April 4-20 for his toe
injury. Mr. Hall requested temporary partial disability benefits from April 4-26 for his
back, even though he received temporary partial benefits from April 4-20. He argued that
he suffered two different injuries, so he was entitled to two separate disability payments,
even if the times overlapped. He argued his back injury would not have occurred if Life
Care followed its no open-toe shoe policy. Life Care argued Mr. Hall was not entitled to
additional temporary partial disability benefits because it accommodated his restrictions
before it terminated him.

                             Findings of Fact and Conclusions of Law

          At an expedited hearing, Mr. Hall has the burden to present sufficient evidence
1
    Life Care offered a bonus to employees who referred successful job applicants.
2
 The Court gleaned this information from part of Mr. Hall's employment file, which entered the record as
exhibit 9 without objection.

                                                      2
from which this Court can determine that he is likely to prevail at a hearing on the merits.
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*7-8, 9 (Mar. 27, 2015).

       Before addressing the temporary benefits issue, the Court notes that although
parties identified two distinct injury dates, the Court finds Mr. Hall's injury date is
January 10, 2018. Mr. Hall testified he fell at least four times due to the injury to his
great toe and boot. According to Mr. Hall, the boot slip on the wet floor at work is what
caused him to injure his back. Therefore, the April 4 event is a natural consequence of
his toe injury and not a distinct new injury. See Anderson v. Westfield Grp., 259 S.W.3d
690, 696-7 (Tenn. 2008).

        Mr. Hall requested temporary partial disability, which 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.) He requested the period from April4-26,
even though Life Care paid him temporary partial disability benefits from April 4-20.
Mr. Hall did not present any statute or case law indicating an employee is entitled to
multiple temporary disability payments for the same time period, and the Court is
unaware of any. Therefore, the Court denies his request for additional temporary
disability benefits solely for the back injury for April 4-20. This leaves his request for
April 21-26.

        Concerning the latter period, Mr. Hall presented a physician's note indicating Dr.
Schmalzreid restricted his work for that time period, and he testified he did not work due
to his termination. Life Care did not dispute these facts.

        However, even though an employee has a work-related injury for which temporary
benefits are payable, an employer may still enforce workplace rules. Thus, a termination
due to a violation of workplace rules may relieve an employer of its obligation to provide
temporary partial disability benefits, provided the termination was related to the
workplace violation. 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." See Jones v. Crencor Leasing and Sales, 2015 TN
Wrk. Comp. App. Bd. LEXIS 48, at *7-9 (Dec. 11, 2015).

       Here, Life Care terminated Mr. Hall for creating a poor image for the facility.
Essentially, Life Care accused him of making remarks that were inappropriate in the
workplace. These not only included sexual, rude comments but also remarks concerning
a bonus Life Care paid another employee when it hired Mr. Hall. Mr. Hall did not deny

                                             3
he confronted the other employee about the bonus. Although he explained he did not
make the other comments or that the person hearing the comments wrongly construed
them, multiple co-workers' statements contradicted Mr. Hall. The Court finds Mr. Hall
made inappropriate remarks that violated ordinary workplace expectations, and this was
Life Care's true motivation for his dismissal.

       The Court finds the termination reasonable and unrelated to his worker's
compensation claim. The Court holds that Mr. Hall is not likely to succeed at a hearing
on the merits in proving his entitlement to temporary partial disability benefits for the
period from April21-26, 2018.

       IT IS THEREFORE, ORDERED as follows:

   1. Mr. Hall's requested relief is denied at this time.

   2. This case is set for a Status Hearing on November 30, 2018, at 2:00 p.m. The
      parties must call 855-543-5044 to attend the hearing. Failure to call may result in
      a determination of the issues without your participation.



ENTERED October 9, 2018.


                                           IS/ Brian K. Addington
                                          BRIAN K. ADDINGTON, JUDGE
                                          Court of Workers' Compensation Claims




                                             4
                                         APPENDIX

 Evidence:
       1. Affidavit of Mr. Hall
       2. Employer's First Report of Injury
       3. Employee's Choice of Physician
       4. Wage Statement (February 5, 2018)
       5. Medical Records of East Tennessee Spine and Orthopaedic Specialists
       6. Medical Records of Takoma Regional Hospital
       7. Medical Records of Summit Family Medicine
       8. Deposition of Karen Harper
       9. Incomplete Personnel File of Mr. Hall

 Technical Record:
       1. Petition for Benefit Determination, May 16, 2018
      2. Dispute Certification Notice, June 11, 2018
       3. Request for Expedited Hearing, June 25, 2018
      4. Objection to Request for Expedited Hearing on the Record
       5. Order Denying Request for a Decision on the Record and Setting an
          Evidentiary Hearing
      6. Order on Status Hearing and Consolidating Claims
       7. Notice ofFiling of Wage Statement and attachments


                              CERTIFICATE OF SERVICE

        I certify that a true and correct copy of the Order was sent to the following
 recipients by the following methods of service on October 9, 2018.

Name                   Certified   Fax    Email Service sent to:
                        Mail
Phillip Hall,                                      112 S. Sunset St.
Employee                  X                        Greeneville, TN 37743
Debra Fulton,
Employer's Attorney                            X   dfulton@fmsllp.com


                                         -~ ~Uk- -
                                         Penn~m, Clerk
                                         W '.Cout i.C ierk@tn.gov




                                           5
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   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 of the 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 Indigency will
      result in dismissal of the 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. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business 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 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. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements should include: (1) a
      statement summarizing the facts of the case from the evidence admitted during the
      expedited hearing; (2) a statement summarizing the disposition of the case as a result of
      the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
      argument, citing appropriate statutes, case law, or other authority.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
 .
ll                                                                                                                 .I




                                    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: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/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
