                                                                                                              FILED
                                                                                                          December 21,2015

                                                                                                             'IX COURT OF
                                                                                                        WORKERS' CO:\IPE~ SATIO~
                                                                                                                 CLAD IS

                                                                                                             Time: 11:01 A.\1




              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT MEMPHIS

Barbara Boyd,                                             )    Docket No.: 2015-08-0310
           Employee,                                      )
v.                                                        )    State File Number: 54323-2015
Randstad North America,                                   )
            Employer,                                     )    Judge Jim Umsted
And                                                       )
Indemnity Ins. Co. of North America,                      )
            Insurance Carrier.                            )


     EXPEDITED HEARING ORDER GRANTING TEMPORARY DISABILITY
                           BENEFITS


        This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the employee, Barbara Boyd, pursuant to
Tennessee Code Annotated section 50-6-239 (2014). Ms. Boyd seeks temporary
disability benefits related to an alleged injury to her left ankle. The employer, Randstad
North America (Randstad), accepted compensability and authorized medical treatment.
The central legal issue is whether Ms. Boyd is entitled to ongoing temporary disability
benefits, dating back to June 24, 2015. For the reasons set forth below, the Court finds
that Ms. Boyd is entitled to ongoing temporary disability benefits beginning July 21,
2015. 1

                                              History of Claim

       Ms. Boyd is a forty-nine-year-old resident of Fayette County, Tennessee. She
alleged an injury to her left ankle on June 23, 2015, while reaching for a box at work.
According to Ms. Boyd, she reported her injury to her supervisor the following day.
However, Randstad refuted this contention, indicating it did not receive notice of an
alleged work injury until July 10, 2015.

        Ms. Boyd treated conservatively on her own at Methodist LeBonheur Healthcare
1
  A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

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and Saint Francis Bartlett from June 25 to July 9, 2015. Ms. Boyd's medical providers
diagnosed her with a left-ankle sprain. They did not take her off work impose any
restrictions.

       Ms. Boyd testified she ultimately received a panel of physicians from Randstad
and chose to treat with Saint Francis Hospital. She presented to Saint Francis on July 15,
2015, where she was diagnosed with a left-ankle sprain and referred her to an orthopedic
specialist. The medical records from Saint Francis did not indicate that Ms. Boyd was
placed on any activity restrictions.

       Thereafter, Randstad contacted Ms. Boyd by telephone to offer a list of physicians
to provide orthopedic care for her injury. Ms. Boyd chose to treat with Dr. John
Lochemes at Memphis Orthopaedic Group, as he was the closest physician to her place of
residence.

       Ms. Boyd initially treated with Dr. Lochemes on July 21, 2015. During that visit,
Ms. Boyd advised that she injured her left ankle when she struck it on an iron rail at work
on June 23, 2015, while reaching for a box on the top shelf. Suspecting a peroneal
tendon injury, Dr. Lochemes ordered an MRJ of Ms. Boyd's left ankle and placed her on
sedentary work restrictions.

        Ms. Boyd returned to see Dr. Lochemes on August 4, 2015. However, at the time
of that visit, the MRl had not been performed. Consequently, Dr. Lochemes instructed
Ms. Boyd to follow up after the testing. He restricted her to ten pounds of continuous
lifting, twenty-five pounds of intermittent lifting, and prohibited her from climbing,
kneeling, bending, stooping, twisting, and pushing/pulling in a cast or brace. An
Employment Report dated November 5, 2015, indicated Dr. Lochemes ultimately
diagnosed Ms. Boyd with a stress fracture of the left foot, placed her in a short leg cast,
and took her completely off work. Dr. Lochemes noted Ms. Boyd was to return in two
weeks.

       Ms. Boyd filed a Petition for Benefit Determination (PBD) seeking temporary
disability benefits. The parties did not resolve the disputed issues through mediation, and
the Mediating Specialist filed a Dispute Certification Notice (DCN). Ms. Boyd filed a
Request for Expedited Hearing, and this Court heard the matter on December 18, 2015.

       At the Expedited Hearing, the parties agreed to the following stipulations: 1)
Randstad is an employer as defined by the Tennessee Workers' Compensation law; 2)
Ms. Boyd was an employee of Randstad as defined by the Tennessee Workers'
Compensation Law on June 23, 2015; 3) Randstad received notice of a work injury
within thirty days of the alleged date of injury; 4) Randstad accepted Ms. Boyd's left-
ankle injury as compensable; and 5) Dr. John Lochemes at Memphis Orthopaedic Group
is Ms. Boyd's authorized treating physician for her left-ankle injury.

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       Ms. Boyd asserted she is entitled to ongoing temporary disability benefits
beginning June 24, 2015. She testified she attempted to return to work on July 7, 2015,
but was unable to perform her job duties. According to Ms. Boyd, Randstad never
offered her light-duty work. Moreover, Ms. Boyd denied she resigned or refused work
from Randstad. Ms. Boyd testified she has not returned to see Dr. Lochemes since
November 5, 2015, and argued that Randstad miscalculated her average weekly wage.

        Randstad countered that Ms. Boyd voluntarily resigned from employment and did
not afford Randstad the opportunity to accommodate her work restrictions. Randstad
relied on the Affidavit of Jana Young to support its position. It further argued Ms. Boyd
had an obligation under Tennessee law to make a reasonable attempt to go back to work
and failed to do so. As such, Randstad argued Ms. Boyd's request for temporary
disability benefits should be denied.

                              Findings of Fact and Conclusions of Law

        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). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass 'n, 725 S.W.2d 935, 937 (Tenn. 1987); 2 Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). 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 with
sufficient evidence from which the trial court can determine that the employee is likely to
prevail at a hearing on the merits. !d.

      An injured worker is eligible for temporary disability benefits if: (1) the worker
became disabled from working due to a compensable injury; (2) there is a causal
connection between the injury and the inability to work; and (3) the worker established
the duration of the period of disability. Simpson v. Satterfield, 564 S.W.2d 953, 955
(Tenn. 1978). Temporary total disability benefits are terminated either by the ability to

2
 The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July 1, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

                                                          3
return to work or attainment of maximum recovery. !d. Temporary partial disability
benefits, a category of vocational disability distinct from temporary total disability, is
available when the temporary disability is not total. See Tenn. Code Ann. § 50-6-207(1)-
(2) (2014). Specifically, "[t]emporary partial disability refers to the time, if any, during
which the injured employee is able to resume some gainful employment but has not
reached maximum recovery." Williams v. Saturn Corp., No. M2004-01215-WC-R3-CV,
2005 Tenn. LEXIS 1032, at *6 (Tenn. Workers' Comp. Panel Nov. 15, 2005).

       Thus, in circumstances where the treating physician has released the injured
       worker to return to work with restrictions prior to maximum medical
       improvement, and the employer either (1) cannot return the employee to
       work within the restrictions or (2) cannot provide restricted work for a
       sufficient number of hours and/or at a rate of pay equal to or greater than
       the employee's average weekly wage on the date of injury, the injured
       worker may be eligible for temporary partial disability.

Jones v. Crencor Leasing, No. 2015-06-0332, 2015 TN Wrk. Comp. App. Bd. LEXIS
__,slip op. at 5 (Tenn. Workers' Comp. App. Bd. Dec. 11, 2015).

       With regard to the issue of temporary total disability, Ms. Boyd has shown that Dr.
Lochemes took her completely off work as a result of her compensable work injury on
November 5, 2015. According to Ms. Boyd's testimony, she last treated with Dr.
Lochemes on this date. As such, she is entitled to ongoing temporary total disability
benefits beginning November 5, 2015, until she returns to work or reaches maximum
recovery.

        The evidence further supports a finding that Ms. Boyd would be entitled to
temporary partial disability benefits from July 21, 2015, to November 4, 2015. During
this period, Dr. Lochemes had Ms. Boyd on either sedentary or light duty work
restrictions. Ms. Boyd testified that Randstad never offered her a light duty position.
Moreover, Randstad presented no proof that it could have accommodated these
restrictions. Randstad relied on the affidavit of Jana Young to support its position that
Ms. Boyd resigned her employment on July 9, 2015, without giving Randstad the
opportunity to find her a job. However, the Court finds Ms. Boyd's live testimony, that
she did not resign her employment, credible. In addition, the Court finds that Ms. Boyd
made a reasonable attempt to return to work on July 7, 2015.

       While there is some dispute over when Ms. Boyd reported her injury to Randstad,
a review of the record supports Randstad' s position that she provided notice of a work
injury on July 10, 2015. Tennessee Code Annotated section 50-6-201(a)(l) (2014) states,
"the employee shall not be entitled to physician's fees or to any compensation that may
have accrued under this chapter, from the date of the accident to the giving of notice."
Consequently, Ms. Boyd is not entitled to temporary disability benefits from June 24,

                                            4
2015, to July 9, 2015. Moreover, prior to July 21, 2015, none of Ms. Boyd's medical
providers had her on restrictions or took her completely off work. Based on the analysis
in Jones, this Court is unable to order benefits between July 10, 2015, and July 20, 2015.

        Regarding the issue of Ms. Boyd's proper average weekly wage and compensation
rate, the wage statement filed in this matter includes two weeks of wages paid after her
June 23, 2015 injury date. Tennessee Code Annotated section 50-6-102(3)(A) (2014)
defines "average weekly wages" as "the earnings of the injured employee in the
employment in 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."
Consequently, weeks nine and ten on the wage statement should not be included in the
calculation of Ms. Boyd's average weekly wage. Based on the first eight weeks of
earnings, Ms. Boyd's average weekly wage would be $283.36, which leads to a
compensation rate of$188.90.

       Based on the evidence presented in this case, Ms. Boyd has met her burden of
proving entitlement to temporary disability benefits from July 21, 2015, to the present.
Therefore, as a matter of law, she has come forward with sufficient evidence from which
this Court concludes that she is likely to prevail at a hearing on the merits. Her request
for temporary disability benefits is granted in part at this time.

 IT IS, THEREFORE, ORDERED as follows:

   1. The amount of temporary disability benefit is $188.90 per week based on Ms.
      Boyd's average weekly wage of$283.36.

   2. Payment of past-due benefits in the amount of shall be made for the period from
      July 21, 2015, to December 18, 2015.

   3. Randstad or its workers' compensation carrier shall continue to pay to Ms. Boyd
      temporary disability benefits in regular intervals until she is no longer eligible for
      those benefits by reaching maximum medical improvement, by returning to work
      at a wage equal to or greater than the pre-injury wage, or by release without
      restrictions by the authorized treating physician. Rands tad's representative shall
      immediately notify the Bureau, Ms. Boyd, and Ms. Boyd's counsel, if any, 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 a telephonic Scheduling Hearing on February 10, 2015, at
      11:00 a.m.

   5. Unless interlocutory appeal of the Expedited Hearing Order is filed,
      compliance with this Order must occur no later than seven business days

                                             5
       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 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 2l'~er, 2015.                       .f).-----
                                 JugeJimU~
                                 Court of Workers' Compensation Claims

Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Jim Umsted, Court of
Workers' Compensation Claims. You must call 615-532-9550 or toll-free at 866-
943-0014 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
your further participation.


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 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.



                                          6
4. The appealing party is responsible for payment of a filing fee in the amount of
   $75.00. Within ten 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 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
   appeal.

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 calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers' Compensation
   Claims and must be approved by the workers' compensation judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant's
   position statement. All position statements pertaining to an appeal of an
   interlocutory order 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.




                                         7
                                                    APPENDIX

    Exhibits:
       1. Affidavit of Barbara Boyd;
       2. Affidavit of Jana Young;
       3. Form C-20 Employer's First Report of Work Injury or Illness;
       4. Form C-23 Notice ofDenial of Claim for Compensation;
       5. Form C-41 Wage Statement;
       6. Unsigned Form C-42 Agreement Between Employer/Employee Choice of
           Physician;
       7. Ms. Boyd's job description;
       8. Randstad s Communication Log; 3
      9. Medical records filed by Randstad on November 6, 2015:
              • Methodist LeBonheur Healthcare- June 25, 2015;
              • Saint Francis Hospital- July 15, 2015;
              • Memphis Orthopaedic Group- July 21, 2015;
              • Memphis Orthopaedic Group- Employment Report dated August 4, 2015;
       10. Medical records submitted to Mediating Specialist:
              • Memphis Orthopaedic Group- Employment Reports dated July 21, 2015,
                 and August 4, 2015;
              • Saint Francis Hospital Bartlett- July 9, 2015;
              • Saint Francis Hospital- July 15, 2015;
      11. Additional medical records:
              • Memphis Orthopaedic Group - patient intake information for date of
                 service July 21, 2015;
              • Memphis Orthopaedic Group- August 4, 2015;
              • Memphis Orthopaedic Group - Employment Report dated November 5,
                 2015;
      12. Medical bills:
              a. T.M. Carr, M.D.- June 25, 2015;
              b. Memphis Radiological, PC- June 25, 2015; and
              c. Memphis Physicians Radiological Group- July 9, 2015.

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Employer's Pre-Hearing Brief with attachments

3
    Exhibit 8 was marked for identification only and was not admitted into evidence.

                                                           8
                            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 21st day of
December, 2015.


Name                         Certified Via       Via      Service sent to:
                             Mail      Fax       Email
Stanley Less,                                       X     sbl@stanleyhless.com
Employee's Attorney
David Otten,                                        X     djotten@mijs.com
Employer's Counsel




                                          il:s·uff:.::::C~urt
                                          Court o Workers' Compensation Claims
                                          WC.CourtClerk@tn.gov




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