FILED

May 15,2017

 

Se TN COURT OF
TENNESSEE BUREAU OF WORKERS’ COMPENSATION ~Onwanae ON
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS CLAIMS
AT MEMPHIS
Time 9:2) AM

MIGUEL BETANCES, ) Docket No. 2016-08-0883

Employee, )
V. ) State File No. 59040-2016
BROCK SERVICES, LLC, )

Employer. ) Judge Allen Phillips

 

EXPEDITED HEARING ORDER
FOR TEMPORARY DISABILITY BENEFITS

 

This case came before the undersigned Workers’ Compensation Judge on April
26, 2017, upon the Request for Expedited Hearing filed by Miguel Betances. Mr.
Betances requested temporary disability benefits from October 5, 2016, and ongoing.
Brock contended he was not entitled to the requested benefits because it terminated him
for violation of workplace rules, namely its attendance policy. Accordingly, the central
legal issue is whether Mr. Betances came forward with sufficient evidence to demonstrate
a likelihood of success at a full hearing on the merits on the issue of temporary disability
benefits. The Court holds he did and orders Brock to provide the requested temporary
disability benefits.

History of Claim

On July 18, 2016, Mr. Betances injured his back at work, and Brock provided
medical treatment with Concentra. A physician at Concentra restricted his activities, and
Mr. Betances returned to work for Brock.

Mr. Betances continued to work through July 29. He claimed that, throughout this
time, his supervisor, Felix Ortiz, “threatened” him with termination “whenever [he]
complained of pain.” Mr. Betances testified that Mr. Ortiz specifically told him on July
28 that he would “get rid of me.” On August 1, Mr. Betances testified Mr. Ortiz “made
good” on that threat and sent him home at the direction of Marcus House, Brock’s project
manager. Mr. Ortiz took the Brock identification badge issued to Mr. Betances and told
him not to return. Mr. Ortiz also told Mr. Betances to return to the Dominican Republic
to seek medical treatment. However, Brock asked Mr. Betances to return to the jobsite on
approximately August 10, for what Mr. Betances described as an “investigation” of his
accident; otherwise, Mr. Betances never returned.

Mr. Ortiz, Brock’s worksite superintendent, provided an affidavit stating he never
told Mr. Betances that “he was suspended for any reason,” or denied him medical
treatment. Instead, he stated Mr. Betances simply stopped reporting to work as of August
l.

Mr. Ortiz stated Brock administratively terminated Mr. Betances because he did
not return to work between August | and August 14. Mr. Ortiz stated that Mr. Betances
was to report to him before 9:00 a.m. “if he was not going to be able to work [on a given]
day for any reason,” and if an employee “needs to take a longer period of time off, [they]
are instructed to notify me of the time they wish to take off [and I could notify the
corporate office} so they remain in a hold status rather than be administratively
terminated.” Mr. Ortiz stated that all of Brock’s attendance policies are contained in an
employee handbook, a document Mr. Betances received as evidenced by a receipt he
signed. Mr. Ortiz stated in his affidavit that “it is [Brock’s] policy to provide light duty
work to injured employees if possible,” and that the light duty position “would have
remained available to Mr. Betances throughout his medical treatment if he had continued
to come to work.”

Brock paid Mr. Betances his regular wages from August | through August 14. It
also paid him what it called “temporary total disability” (TTD) benefits beginning August
1, and continuing to October 5.

On September 20, Brock sent Mr. Betances a letter reading as follows:

We have been advised that Dr. Varner has continued your release to return
to work on restricted work duty medical release status. This letter is to
advise you that we do have work available for you at our Brock worksite
and request you return to work. We will work with you on any of the work
restrictions and medical appointment schedules you may continue to have.

You must respond to this letter by calling Allison Edwards at 901-369-0360
within five (5) days of receipt of this letter in order to discuss your return to
work schedule with Brock Services. If you do not call Ms. Edwards or
return to work as requested, you may not continue to receive any temporary
disability benefits.

We look forward to your return to work with us.
As of approximately September 24, Mr. Betances returned to the Dominican
Republic for personal reasons. Hence, he testified he did not receive the September 20
letter until sometime in October but claimed he called Brock within five days of its
receipt. Brock’s Human Resources Coordinator, Allison Edwards, confirmed Mr.
Betances called her on October 18, but on October 19, Ms. Edwards “informed Mr.
Betances that the position offered to him on September 20 was no longer available” per
Glenda Martin, Brock’s Regional Claims Manager. Ms. Edwards also stated Brock’s
attendance policy provides any employee who fails to “report to work without
notification or authorization for three days or more” is deemed to have voluntarily
resigned.

Marcus House was Brock’s project manager at the location where Mr. Betances
worked. He testified by affidavit that Brock “administratively terminated” Mr. Betances
on August 14 for “violation of Brock’s internal attendance policy.” He denied ever
“suspending” Mr. Betances. Mr. House stated he understood that “Mr. Betances did not
respond to [the September 20 letter] until over month after it was sent and by that time
the position was no longer available.” Mr. House completed an “Employee Exit Form”
on October 20 recording that Mr. Betances had “walked off” or “abandoned” his job as of
that date.

Mr. Betances continued medical care at Concentra until July 29, his last day at
Brock. At that time, the Concentra provider noted Brock would “no longer pay for PT”
and that, because the “case [was] not progressing,” he would refer Mr. Betances to an
orthopedic physician. Mr. Betances then began treatment with Dr. Varner, an orthopedist,
who continued to see him until Mr. Betances went to the Dominican Republic.

Mr. Betances now sees Dr. Parsioon, who took him off work as of January 26,
2017. He intends to perform a lumbar discectomy on Mr. Betances.

Since leaving Brock, Mr. Betances worked a second job at Kinko’s in the
evenings, working fifteen hours per week and earning $9.25 per hour. He described the
job as involving no physical exertion. After January 26, when Dr. Parsioon completely
excluded him from work, Mr. Betances quit working at Kinko’s and has not worked
anywhere else. He states he currently awaits back surgery and is supported by his wife’s
income and that of his oldest son.

Because Brock failed to return him to work in October, Mr. Betances claims
temporary disability for the period beginning October 5, 2016, when the parties agree
Brock last paid him TTD, through the present, and ongoing.
Brock contends it owes Mr. Betances no further temporary disability because it
properly terminated him for failing to report to work. Furthermore, Brock argues it had
no light duty position available to him due to his delay in calling until one month after its
September 20 letter.

Findings of Fact and Conclusions of Law
Standard applied

Because this case is in a posture of an Expedited Hearing, Mr. Betances need not
prove every element of his claim by a preponderance of the evidence. Instead, he must
come forward with sufficient evidence from which the Court can determine he is likely to
prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2016).

Applicable authority

Though the parties argued the case only in context of Mr. Betances’ entitlement to
TTD, Tennessee law recognizes two types of temporary disability benefits.' First, Mr.
Betances might be entitled to TTD if he proves: (1) he was totally disabled from working
as a result of his compensable injury; (2) a causal connection between that injury and his
inability to work; and (3) the duration of his disability. Young v. Young Elec. Co., 2016
TN Wrk. Comp. App. Bd. LEXIS 41, at *12 (Sept. 14, 2016). Second, if Mr. Betances
was not totally disabled during any period for which he requests benefits, then he might
be entitled to temporary partial disability (TPD) benefits, which were payable during the
time Mr. Betances was able to resume some gainful employment but had not reached his
maximum recovery. Barrett v. Lithko Contracting, Inc., 2016 TN Wrk. Comp. App. Bd.
LEXIS 70, at *8 (June 27, 2016). Mr. Betances’ potential recovery of temporary benefits
may be separated into two distinct periods.

Entitlement to temporary partial disability

First, from October 5, 2016, the last date he was paid temporary benefits, until
January 26, 2017, when an authorized physician totally excluded him from work, Mr.
Betances might have been eligible for TPD. If he were, the amount of compensation
would equal 66 2/3% of the difference in his average weekly wage at the time of injury
and the amount he might have earned in his partially disabled condition. Tenn. Code
Ann. § 50-6-207(2) (2016). This calculation must consider two factors: first, Brock’s
right to terminate Mr. Betances for violation of its workplace rules; and second, Mr.

 

' The Court notes Brock paid what it called “TTD” through October 5. However, when looking to the difference
between Mr. Betances’ average weekly wages and what he was able to earn in his partially disabled condition, the
net amount of TPD paid for that period is the same. See Tenn. Code Ann. § 50-6-207(2) (2016).

4
Betances’ testimony that he earned some wages at a part-time job during the period in
question.

Even though Mr. Betances had a compensable injury for which temporary benefits
are payable, Brock is entitled to enforce its workplace rules. Barrett, at *9, citing Carter
v. First Source Furniture Grp., 92 S.W.3d 367, 368 (Tenn. 2002). Mr. Betances’
termination due to a violation of a workplace rule may relieve Brock of its obligation to
pay temporary disability benefits if the termination was related to the rule violation. Jd.
For Brock to be relieved of its payment obligation, the Court must find, “(1) that the
actions allegedly precipitating [Mr. Betances’|] 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 [his] dismissal.” Jd.

Guided by this authority, the Court will analyze the facts chronologically. First,
the parties agreed Mr. Betances injured his back on July 18, 2016, and that he continued
to work through July 29. However, the controlling events occurred afterward and are the
ones about which the parties disagree.

Specifically, Brock contended Mr. Betances provided no excuse for his failure to
return to work after August 1, and that he did not request a leave of absence. These
failures constituted a violation of Brock’s attendance policy and served as the basis for
Brock’s “administrative termination” of Mr. Betances as of August 14.

Conversely, Mr. Betances claimed Brock, through Mr. Ortiz, essentially fired him
as of August 1. He testified that Mr. Ortiz “threatened” him on several occasions and
stated he should seek medical care in his home country.

Having directly observed Mr. Betances’ demeanor, the Court finds he testified
confidently and without reservation regarding his “suspension” or “firing” as of August
1. The Court accredits Mr. Betances’ version of the events and finds him credible.
Further, when considered against the affidavits of the Brock employees and the evidence
discussed further within this order, the Court also finds the evidence preponderates in
favor of Mr. Betances’ position.

Namely, the Court finds the evidence preponderates against Brock’s position that
it “terminated” Mr. Betances on August 14. Brock offered no separation notice
memorializing any termination on that date, it continued to pay temporary disability
benefits despite the alleged termination, and it corresponded with Mr. Betances on
September 20 regarding a return to work. All of these facts, individually and collectively,
support a finding that Brock did not terminate Mr. Betances on August 14, and the Court
holds as a matter of law that Brock cannot avoid paying benefits if it did not enforce its
attendance policy by actually terminating Mr. Betances.
Further, the Court considers Mr. Ortiz’ testimony that light duty “would have
remained available to Mr. Betances throughout his medical treatment if he had continued
to come to work” to be directly contrary to Ms. Edwards’ statement that, after speaking to
Brock’s claim manager, the light duty position “was no longer available.” Notably, it was
the claim manager, and not a Brock employee at.the job site, who directed Ms. Edwards
to advise Mr. Betances that the position was no longer available. Likewise, though Mr.
House stated Mr. Betances’ position was no longer available on October 18, he offered
no explanation as to why Brock could no longer continue the light duty promised by Mr.
Ortiz. In short, it is inconsistent for Brock to claim light duty would have remained
available to Mr. Betances throughout his medical treatment while at the same time
asserting the position became unavailable in October.

Brock attempted to explain this inconsistency by arguing Mr. Betances failed to
call Ms. Edwards within five days of its September 20 letter, instead waiting until
approximately one month later. However, the only proof in the record as to when Mr.
Betances actually received the letter was his testimony that he received it sometime in
October upon his return from the Dominican Republic. Again, having found Mr.
Betances’ testimony credible, the Court finds he made a reasonable attempt to return to
work by calling Brock in October.

In summary, the Court finds Brock did not accommodate Mr. Betances’ light duty
restrictions or provide a justifiable reason for not doing so. It could have, but did not,
enforce its attendance rule in August. Mr. Betances has established he would likely
prevail at a trial on the merits regarding whether he had a disability that preventing him
from earning his average weekly wage, that the partial disability is related to his injury,
and the duration of that partial disability. See Young, at *12. Mr. Betances is entitled to
temporary partial disability beginning October 5, 2016.

The parties stipulated Brock paid temporary disability benefits to Mr. Betances
from August 1 to October 5. Because Brock paid Mr. Betances his regular wages from
August | to August 14, the Court finds it is entitled to a credit for those two weeks.
However, the Court finds Mr. Betances is entitled to temporary partial benefits for the
period of August 14 to October 5.

Mr. Betances’ admission that he worked a second job until January 2017
complicates the Court’s calculation of TPD. The uncontroverted proof is that Mr.
Betances earned $9.25 per hour for fifteen hours each week from October 5, 2016, until
Dr. Parsioon totally restricted him from work on January 26, 2017. Based upon this
proof, the Court determines he earned $138.75 per week for the subject period ($9.25 x
15 hours per week). When considering those earnings, the Court finds the net TPD to
which Mr. Betances is entitled from October 5, 2016, through January 26, 2017, equals
$158.48 per week. The Court calculates this amount by utilizing an average weekly wage
of $376.46" and considering Mr. Betances was able to earn $138.75 per week in his
partially disabled condition. ($376.46 - $138.75 x 66 2/3 %). See Tenn. Code Ann. § 50-
6-207(3) (2016).

Entitlement to temporary total disability benefits

The parties agree Mr. Betances suffered a compensable injury for which Brock
continues to provide medical benefits. Likewise, an approved provider, Dr. Parsioon, has
totally restricted Mr. Betances from work as of January 26, 2017. Hence, for the period
beginning January 26 and ongoing, Mr. Betances established: (1) he was totally disabled
from working as the result of his compensable injury; (2) a causal connection between his
injury and his inability to work; and (3) the duration of his disability. Young, at *12.

For the period of January 26, 2017, forward, until an approved physician releases
him to return to work or places him at maximum medical improvement, Mr. Betances is
entitled to TTD at the rate of $250.97 per week.

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Betances shall receive accrued temporary partial disability benefits of
$2,580.96 from Brock for the period of October 5, 2016, through January 26,
2017, a period of sixteen weeks and one day, at the rate of $158.48 per week. Mr.
Betances’ counsel is entitled to a fee of twenty percent of this recovery.

2. Mr. Betances shall receive accrued temporary total disability benefits of $3,943,81
at the rate of $250.97 from Brock for the period of January 27, 2017, through the
date of this order, a period of fifteen weeks and five days. Counsel is also entitled
to a fee of twenty percent of this recovery. These payments of TTD shall continue
until an approved medical provider releases him to return to work or places him at
maximum medical improvement.

3. This matter is set for a Scheduling (Status) Hearing on Thursday, August 10,
2017, at 10:00 a.m. Central time. You must call toll-free at 731-422-5263 or
toll-free 855-543-5038 to participate in the Hearing.

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

 

* The average weekly wage of $376.46 is based upon Brock’s “Pre-Hearing Statement” in which it states the
compensation rate for TTD is $250.97 per week. The Court views this as an admission regarding the compensation
rate. Mr. Betances neither contested this amount nor offered evidence on the issue. If the parties disagree as to the
Court’s calculations, regarding TPD or TTD, either or both might file an appropriate motion or later resolve any
discrepancies by an offset or credit against future payment of benefits.

7
ENTERED this the 18th day of May, 201

of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)
(2016). 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. 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.
MN ye
Allen Phillips, Judge \ ~ \W
Court of Workers’ Compénsation Claims

APPENDIX

 

 

Exhibits:

ae ee

Medical Records of Concentra

Medical Records of Dr. James Varner

Medical Records of Dr. Fereidoon Parsioon

September 20, 2016 letter from Brock to Mr. Betances regarding returning to work
Tracking Information for “Postal Product” (identification only)

Employee’s Receipt of Employee Handbook

Affidavit of Marcus House, with attachments

Affidavit of Allison Edwards, with attachments

Affidavit of Felix Ortiz

Technical record:

& WN —

Petition for Benefit Determination

Dispute Certification Notice

Request for Expedited Hearing with supporting affidavit

Employer’s Pre-Hearing Statement In Response to Employee’s Request For
Expedited Hearing

. Consent Order Substituting Counsel

Employer’s Written Objection to Introduction of Certain Documents Submitted to
Mediating Specialist
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this Expedited Hearing Order was sent
to the following recipients by the following methods of service on this the 18" day of May,
2017.

 

 

 

 

 

 

 

Name Via Email Service Sent To:

John A. Field, Esq., Xx feildlawoffice@gmail.com
Attorney for Employee

Marianna L. Jablonski , Esq., x mjablonski@wimberlylawson.com
Attorney for Employer

 

foe | Mum

Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov

 
