     FILED
   Mar 04, 2019
   02:58 PM(CT)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
hip pain. Dr. Naifeh examined him, released him with light-duty restrictions, and referred
him to an orthopedic specialist. Ultimately, Mr. Fingers was referred to Dr. Thomas
Byrd, a hip specialist.

       Nortek introduced Dr. Byrd's deposition testimony into evidence, which was the
only medical proof at the hearing. Dr. Byrd saw Mr. Fingers, reviewed his MRI, and
recommended surgery, which he later performed. On March 29, 2016, he performed
extensive hip surgery to debride the labrum and cartilage damage and remove loose bone
fragments in the joint. During follow-up treatment, Mr. Fingers underwent physical
therapy and an injection of the hip joint but still complained of pain. Dr. Byrd eventually
released him at maximum medical improvement on November 14, 2016, and assigned
permanent restrictions consistent with light- to medium-physical-demand level work
based on a functional capacity evaluation. Dr. Byrd also recommended pain management
for Mr. Fingers' continued symptoms. The medical records introduced into evidence
indicated Mr. Fingers received some pain management from Dr. Kyle Payne.

       Regarding permanent impairment, Dr. Byrd testified within a reasonable degree of
medical certainty that Mr. Fingers retained a three-percent permanent impairment to the
body based on the Sixth Edition of the AMA Guides. Mr. Fingers disagreed with Dr.
Byrd's impairment opinion given his permanent restrictions; however, he did not
introduce any other impairment opinion.

              Request for Increased Benefits and Mr. Fingers' Termination

       Regarding Mr. Fingers' claim for increased benefits, Ms. McCullough testified his
violation of Nortek's attendance policy led to his termination. She explained its policy
that employees can be terminated for attendance when they exceed four points and that he
was trained on the policy during orientation. Before Mr. Fingers' injury date, he had 3.5
attendance points.

        The parties agreed Ms. McCullough spoke to Mr. and Mrs. Fingers after Dr.
Naifeh saw him and released him to return to work on light duty on March 26. Mr. and
Mrs. Fingers informed Ms. McCullough that he would not return to work for his evening
shift that day. He testified he was in too much pain in his hip to lift objects. Mr. Fingers
did not return to work and was assessed one attendance point.

       The parties' testimony on this issue only differed regarding whether Mr. Fingers
would be assessed an attendance point for missing his shift on March 26. According to
Ms. McCullough, she informed both Mr. and Mrs. Fingers that he would be assessed one
attendance point if he failed to report to work, and Nortek could accommodate his light-
duty restrictions. Mr. Fingers first acknowledged he knew he would receive a point when
he did not report on March 26, but he later stated either Ms. McCullough or Glenn
McKee, his supervisor, told him they would not count March 26 against his attendance.

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Ms. McCullough and Mr. McKee denied telling Mr. Fingers he would not receive a point.

       The parties agreed Mr. Fingers was not scheduled to work on March 27 through
29. He was next scheduled to work on Monday, March 30; however, he did not report to
work on Monday, Tuesday (March 31), or Wednesday (April 1). Ms. McCullough called
Mr. Fingers on April 1 before his scheduled shift to advise him he had 6.5 attendance
points and would be terminated if he did not return to work that day. Mr. Fingers testified
he told her he did not care and did not return. Nortek terminated him on April 2.
According to Ms. McCullough, Nortek would not have terminated Mr. Fingers and would
have accommodated his restrictions had ~e returned to work on April 1 or any day before.

       Mr. Fingers acknowledged he did not ask Ms. McCullough which light-duty job
was available to him and stated he was not going to return to work regardless of the
position offered. He conceded he made the choice not to return to work on restrictions.
Further, Mr. Fingers did not dispute any attendance points besides the one assessed on his
injury date. He testified he felt mistreated overall because he was not given enough time
to recover from his injury. He stated he remains in pain and does not think anyone would
hire him.

                       Findings of Fact and Conclusions of Law

        "At a compensation hearing where the injured employee has arrived at a trial on
the merits, the employee must establish by a preponderance of the evidence that he or she
is, in fact, entitled to the requested benefits." Willis v. All Staff, 2015 TN Wrk. Comp.
App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-239(c)(6)
(2018).

                            Medical Benefits and Extent ofDisability

       The parties stipulated that Mr. Fingers sustained a compensable right-hip injury.
Therefore, the only issue is Mr. Fingers' permanent impairment and whether Nortek is
obligated to pay any increased benefits. Further, as this is a compensable claim, the Court
holds Mr. Fingers is entitled to reasonably necessary future medical treatment
recommended by his authorized treating physician, Dr. Byrd, under Tennessee Code
Annotated section 50-6-204.

       The only medical proof regarding permanent impairment came from Dr. Byrd,
who concluded Mr. Fingers sustained a three-percent permanent impairment. While Mr.
Fingers disagreed with Dr. Byrd's impairment opinion, he presented no contrary expert
medical evidence to rebut this opinion by a preponderance of the evidence. Thus, the
Court holds Mr. Fingers sustained a three-percent permanent impairment to the body as a
whole for his hip injury.


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        Tennessee Code Annotated section 50-6-207(3)(A) provides Mr. Fingers is
entitled to an initial award of permanent partial disability benefits for the value of his
permanent impairment rating multiplied by 450 weeks. This is called the "original"
award. Thus, Mr. Fingers' original award is three percent to the body as a whole or
thirteen and one-half weeks of benefits. At his stipulated compensation rate of $337.96,
his original award totals $4,562.46.

                                    Increased Benefits

        An employee may request increased permanent benefits beyond the impairment
rating, if, at the end of his initial compensation period, he has not returned to work or has
returned to work but is receiving wages or a salary less than 100 percent of the wages or
salary he received from his pre-injury employer on the date of injury. However, an
employee is not entitled to recover additional benefits when: (1) he voluntarily resigns for
reasons unrelated to the work injury; or (2) the loss of employment is due to the
employee's misconduct connected with the employment. Tenn. Code Ann. §50-6-
207(3)(B), (D).

        Here, it is undisputed that Mr. Fingers was not working for any employer earning
100 percent of his pre-injury wages when his initial compensation period expired.
However, Nortek argued Mr. Fingers is not entitled to any increased permanent benefits
beyond his impairment rating because he was terminated for misconduct for violation of
its attendance policy. The Court agrees.

       The Court finds Nortek offered Mr. Fingers a job within his light-duty restrictions
following his injury and gave him every opportunity to return, but he refused to attempt
to work. The undisputed proof showed Mr. Fingers accumulated 3 .5 attendance points
before his injury date. Under its policy, Nortek could have terminated him after he
refused to attempt light duty on March 26 and was assessed one attendance point.
However, in an effort to work with him, Ms. McCullough contacted Mr. Fingers on April
1, advised him he was at 6.5 points and subject to termination, and asked him to return
for his shift that day. Ms. McCullough credibly testified that, had he returned to work,
Nortek would not have terminated him and would have accommodated his restrictions.
Instead, Mr. Fingers told Ms. McCullough he "did not care" and refused to return.

       Nortek contended that an employer shall not be penalized for enforcing its work-
related policies if a 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 the actions were, as a factual matter, the true
motivation for the dismissal." Barrett v. Lithko Contracting, Inc., 2016 TN Wrk. Comp.
App. Bd. LEXIS 70, at *9 (June 17, 2016) (internal citations omitted). Here, the Court
finds Mr. Fingers' actions violated Nortek's attendance policy and qualified as
misconduct under ordinary workplace rules. Further, the Court finds Mr. Fingers offered

                                             4
no evidence to dispute his attendance points or to demonstrate any improper motivation
for his dismissal. The Court finds his violation ofNortek's attendance policy was the true
motivation for his termination. Thus, the Court holds Mr. Fingers is not entitled to an
award of increased benefits.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Fingers shall recover from Nortek Global HVAC, LLC, permanent partial
      disability benefits of $4,562.46.

   2. Mr. Fingers shall receive future medical benefits pursuant to statute.

   3. Nortek stipulated at the hearing that Mr. Fingers is owed additional temporary
      total disability (TTD) benefits of $678.86 due to the underpayment of benefits
      based on an incorrect compensation rate. Nortek stated it would forward Mr.
      Fingers a check for the additional TTD following the hearing. If Nortek has not
      satisfied the additional TTD payment by the entry date of this order, the Court
      holds Nortek shall pay Mr. Fingers additional benefits of $678.86.

   4. Costs of $150.00 are assessed against Nortek Global, or its insurance carrier,
      under Tennessee Compilation Rules and Regulations 0800-02-21-.07 (2018), to be
      paid within five days of this order becoming final. It shall also file a Form SD-2
      within ten days of the entry of this order.

   5. Absent an appeal, this order shall become final thirty days after issuance.

ENTERED March 4, 2019.




                                         Court of Workers' Compensation Claims




                                            5
                                       APPENDIX

Exhibits:
   1. First Report of Injury
   2. Joint Submission of Medical Records
   3. Dr. Byrd's deposition transcript
   4. Orientation checklist
   5. New hire checklist
   6. Separation Notice

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Scheduling Order (April 13, 2018)
   4. Order Granting Motion to Withdraw as Counsel
   5. Order Setting Scheduling Hearing
   6. Scheduling Order (August 15, 2018)
   7. Amended Scheduling Order (August 16, 2018)
   8. Post-Discovery Dispute Certification Notice
   9. Pre-Compensation Hearing Statement
   10. Employer's Pre-Trial Brief
   11. Employer's Notice

                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on March 4, 2019.

 Name                                 USPS       Email   Service sent to:
 Joseph Fingers, Employee               x         x      kalbino l 5@bellsouth.net
                                                         636 Melton Ave.,
                                                         Dyersburg, TN 38024
 Lee Anne Murray,                                 x      leeamurray@feeneymurray.com
 Employer's Counsel                                      shelia@,feeneymurray.com




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