     FILED
   Mar 28, 2019
   02:51 PM(CT)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
eight percent to the body as a whole. He released Ms. Sprague to full duty with no
restrictions, and she returned to work earning the same wages.

        Regarding Ms. Sprague's employment, she has worked continuously as a regular
full-time employee for Bartlett Schools since July 2014. She was and continues to be paid
$16.65 per hour. She is not paid when she does not work except for certain paid school
holidays, vacation days, inclement weather days, sick time, and personal days.

       Ms. Sprague was not scheduled or paid to work during the ten weeks of summer
break when school was not in session. The summer break is an annual event; she was
aware there would be an annual summer break when she began her employment in 2014;
and she has never been paid during the summer. Before her employment with Bartlett
City Schools, she worked in the same position for a different school system that also did
not pay her during summer.

        Because Ms. Sprague did not work during the ten weeks of summer, she
contended her average weekly wage should be divided by forty-two weeks instead of
fifty-two, which yields an average weekly wage of $579.84 and a compensation rate of
$386.56. Thus, she argued her permanent partial disability award of eight percent totals
$13,916.16.

        Bartlett Schools contended Ms. Sprague's average weekly wage should be divided
by fifty-two weeks, which yields an average weekly wage of $468.34 and a compensation
rate of $312.23. Thus, it argued her permanent partial disability award is $11,240.28.

                                     Trial Testimony

       Ms. Sprague testified she is paid differently than teachers, who are paid an annual
salary by contract. She stated both teachers and regular employees are off during
summer; however, teachers' salaries are spread throughout fifty-two weeks, while she is
only paid over the forty-two weeks of the school year. Ms. Sprague stated she is willing
to work during the summer but was never given the opportunity because of the school
closure. She also was not given the option to spread her pay over the calendar year.

       On cross examination, Ms. Sprague agreed she did not work but was paid on
vacation days, sick days, school holidays, and personal days. She acknowledged that she
knew the school closed for summer when she accepted the job and that she would not be
paid then. Ms. Sprague confirmed she was paid $16.65 per hour and was scheduled for a
seven-hour workday on the date of injury. If she did not work a full seven-hour day and
did not use leave time, she was not paid for her time off work. Some days, she worked
more than seven hours and was paid more. She acknowledged the school never informed
her they did not have seven hours of work for her to do, nor was she ever sent home early
for lack of work.

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       Brittany Clark, Human Resources Coordinator, testified for Bartlett City Schools.
She explained that teachers are under a contract that requires the payment of salaries over
the calendar year. However, staff assistants, like Ms. Sprague, are not required to sign
employment contracts. Ms. Clark confirmed that during the forty-two-week school year,
Ms. Sprague receives seventy hours of sick leave, two personal days, two inclement
weather days, ten vacation days, and ten school holidays.

                       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).

        By stipulation of the parties, the Court holds Ms. Sprague sustained a compensable
shoulder injury for which she retained an eight-percent permanent impairment to the
body as a whole. Further, as this is a compensable claim, the Court holds Ms. Sprague is
entitled to reasonably necessary future medical treatment under Tennessee Code
Annotated section 50-6-204.

        Tennessee Code Annotated section 50-6-207(3)(A) provides Ms. Sprague is
entitled to an "original" award of permanent partial disability benefits for her eight
percent permanent impairment rating multiplied by 450 weeks or thirty-six weeks.
Because she returned to employment at the same or greater wage during her initial
compensation period, she is not entitled to additional benefits based on any enhancement
factors.

      To determine the value of Ms. Sprague's permanent partial disability award, the
Court considers the sole issue of her average weekly wage. The parties agreed that
Tennessee Code Annotated section 50-6-102(3)(A) governs this case and defines average
weekly wage as follows,

      Average weekly wage means the earnings of the injured employee in the
      employment which the injured employee was working at the time of the
      injury during the period of fifty-two (52) weeks immediately preceding the
      date of the injury divided by fifty-two (52); but if the injured employee lost
      more than seven (7) days during the period when the injured employee did
      not work, ... then the earnings for the remainder of the fifty-two (52)
      weeks shall be divided by the number of weeks remaining after the time so
      lost has been deducted.

      Ms. Sprague argued she lost more than seven days of work and pay during the

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fifty-two weeks preceding her injury, thus the ten weeks of summer should be deducted
from her average weekly wage calculation. She contended that the statute does not define
lost time. She relied on the Tennessee Supreme Court's analysis of "voluntary" versus
"involuntary" absences from work in Goodman v. HBD Indus., 208 S.W.3d 373, 375
(Tenn. 2006), to support her position that she did not miss ten weeks of work due to her
"voluntary" decision.

       In Goodman, the union-member employee went on strike for twenty-eight weeks
and had returned to work for less than a month before his injury. The trial court excluded
the twenty-eight weeks from the employee's average weekly wage calculation, resulting
in a higher compensation rate. On appeal, the Supreme Court included the twenty-eight
weeks in the average weekly wage calculation. The Court reasoned,

       [V]oluntary absences from work are not deducted from the fifty-two week
       period. By contrast, days not worked by an employee must be deducted
       from the fifty-two week period if the inability to work is the result of
       "sickness, disability, or some other fortuitous circumstance." Examples of
       "fortuitous circumstances" include the closing of a plant for repairs, or a
       reduction of work due to an unforeseen shortage of material or lack of
       orders.

Id. at 378 (internal citations omitted). The Court held the employee in Goodman was not
required to join the union to work at HBD and was not required to participate in the
strike, thus his participation was voluntary. Id. Here, Ms. Sprague contended that because
she did not voluntarily decline work during summer, those weeks should be deducted
from her average weekly wage.

       In contrast, Bartlett argued that under Tenn. Code Ann. 50-6-102(3)(A) and
Goodman, Ms. Sprague's average weekly wage must be divided by fifty-two weeks. It
stated that she was continuously employed by Bartlett since July 2014 and her absence,
by her own admission, was not due to sickness, disability, or any fortuitous circumstance,
but rather the annual summer break, which had occurred every year since she was hired.

       Bartlett cited a subsequent decision, Houston v. MJ'D Consumer Group, Inc., No.
W2012-01975-WC-R3-WC, 2013 Tenn. LEXIS 860 (Tenn. Workers' Comp. Panel Oct.
25, 2013). In Houston, the trial court excluded weeks the employee was subject to an
annual layoff, resulting in a higher compensation rate. MTD made lawn mowers and
garden products; it contended it was a "seasonal operation," and it was a known fact that
employees were subject to annual layoffs. On appeal, the Panel held the employee's
layoff was not a fortuitous circumstance but was a "recognized incident of [the
employee's] regular employment and should not be excluded from the computation of the
employee's average weekly wage." Id. at 7-8 (internal citations omitted). Similarly, here,
Bartlett argued that summer break was not fortuitous but instead a recognized incident of

                                            4
Ms. Sprague's regular employment.

       Bartlett further cited a somewhat similar case, Richardson v. Coffee Cnty. Bd. of
Educ., No. M2006-02371-WC-R3-WC, 2008 Tenn. LEXIS 201 (Tenn. Workers' Comp.
Panel Apr. 3, 2008). In Richardson, the employee was a cafeteria worker who only
worked for thirty-six weeks when school was in session. The employee argued her
average weekly wage should have been calculated by dividing by thirty-six weeks instead
of fifty-two. The Panel affirmed the trial court's holding that the employee was
continuously employed over a full year and her average weekly wage should be
calculated based on the calendar year instead of the school year.

        Mindful of the foregoing, the Court is not persuaded by Ms. Sprague's argument.
First, the Court disagrees with her contention that she did not voluntarily choose to be off
during summer breaks. The undisputed proof established Ms. Sprague voluntarily
accepted employment as a teacher's aide with Bartlett City Schools knowing that she
would not work or receive pay during summer breaks. Second, the Court holds that Ms.
Sprague's ten weeks off due to Bartlett's annual summer break was not a "fortuitous
circumstance" as contemplated by the courts in the relevant caselaw. Instead, as in
Houston, this Court holds Ms. Sprague's ten weeks off for summer was a "recognized
incident of her regular employment" and should not be excluded from the computation of
her average weekly wage.

IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Sprague's average weekly wage is $468.34, resulting in a compensation rate
      of$312.23.

   2. Ms. Sprague shall recover from Bartlett City Schools a permanent partial disability
      award of $11,240.28 representing eight-percent impairment to the body as a
      whole.

   3. Ms. Sprague shall receive future medical benefits under the statute with Dr.
      Harriman.

   4. Ms. Sprague's attorney is awarded a twenty-percent attorney's fee.

   5. Absent an appeal of this order by either party, the order shall become final thirty
      days after issuance.

   6. Costs of $150.00 are assessed against Bartlett City Schools under Tennessee
      Compilation Rules and Regulations 0800-02-21-.07 (2016), to be paid within five
      days of this order becoming final.


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7. Bartlett City Schools shall prepare and file a statistical data form (SD2) within ten
   business days of the date of this order under Tennessee Code Annotated section
   50-6-224.

   ENTERED March 28, 2019.




                                      Court of Workers' Compensation Claims




                                         6
                                       APPENDIX

Exhibits:
   1. First Report of Work Injury
   2. Wage Statement
   3. Dr. Harriman's C-30A
   4. Bartlett City Schools Injury/Accident Report (3 pages)
   5. Panel of Physicians
   6. Personnel file (collective)
   7. Payroll information (2 pages)
   8. Time records (collective)
   9. Job description
   10. Work-pay schedule (collective)
   11. Employee handbook
   12. Stipulations of the parties

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Scheduling Hearing
   4. Scheduling Order
   5. Pre-Compensation Hearing Statement
   6. Employer's List of Proposed Witnesses and Exhibits
   7. Employer's Pre-Trial Brief
   8. Employee's Witness and Exhibit List
   9. Employee's Pre-Trial Brief
   10. Dispute Certification Notice (post-discovery)

                             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 this the 28th day of March, 2019.

Name                                  Via Email       Service sent to:
William B. Ryan, Esq.,                    x           billy@donatilaw.com
Employee's Counsel
Chris Crain, Esq.,                        x           ccrain@swlawpllc.com
Employer's Counsel




                                              Shrum, Clerk of Court
                                          WC. ourtClerk@tn.gov
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