              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT CHATTANOOGA

Tara Marshall,                                                   Docket No.: 2015-01-0147
           Employee,
v.                                                               State File No.: 63950 2014
Mueller Company,
           Employer,                                             Judge Audrey A. Headrick
And
Ace American Insurance Company,
           Carrier.


                                COMPENSATION HEARING ORDER


        This matter came before the undersigned Workers' Compensation Judge on February
16, 2016, for a Compensation Hearing, pursuant to Tennessee Code Annotated section 50-6-
239 (20 15). The sole legal issue is whether Ms. Marshall is entitled to increased permanent
partial disability benefits beyond her original award. 1 For the reasons set forth below, this
Court finds Ms. Marshall did not establish by a preponderance of the evidence that she is
entitled to increased permanent partial disability benefits.

                                                History of Claim

       Ms. Marshall is a fifty-three-year-old resident of Hamilton County, Tennessee. (T.R.
1.) Mueller Company employed Ms. Marshall in the Cluster Department. !d. Ms. Marshall
sustained a work-related left-leg fracture on August 14, 2014. (Ex. 4.) Mueller did not
contest compensability, and the parties settled Ms. Marshall's claim on July 31,2015, prior to
the expiration of the initial compensation period. (Ex. 1.) After the initial compensation
period expired on October 13, 2015, Ms. Marshall filed a Petition for Benefit Determination
seeking increased permanent partial disability benefits. !d.

       On August 14,2014, when Ms. Marshall sustained a work-related left-leg fracture, her
hourly wage was $19.56 plus overtime. (Ex. 4.) This hourly rate included Ms. Marshall's
1
  A complete listing of the technical record, stipulations, and exhibits admitted at the Compensation Hearing is attached
to this Order as an appendix.

                                                            1
base pay of $17.86, an extra $1.50 for Mueller's summer hours' bonus, and a $0.20 shift
differential increase. !d. The summer hours' bonus refers to a program memorialized in a
collective bargaining agreement, titled "Memorandum of Agreement," entered into on May 7,
20 13. (Ex. 3.) The agreement states, in pertinent part, the following:

         The Company and the Union (USW) have mutually agreed that the current
         business environment is in a recession and for the Company to take full
         advantage of the lowest energy rates offered by [TVA] we are adopting, on a
         non-precedent setting basis, irregular shift hours. Beginning on Sunday June
         2d, 2013 at 8:00 PM and ending October 4, 2013 for the Iron Melt, Foam
         Molding, Cleaning Room, General Foundry Labor and No-Bake Iron
         Departments.



         Employees working in the effected [sic] departments will receive a $1.00 per
         hour shift premium on top of their contractual shift premium during the
         irregular shift schedule.

!d.

        The parties stipulated the Memorandum of Agreement is still in effect. The parties
also stipulated the Memorandum of Agreement affected all employees working in the Melt
Department, including Ms. Marshall. 2 Several departments at Mueller fall within the Melt
Department; however, Mueller cannot state the terms of the Memorandum of Agreement
affect at least fifty percent of all hourly employees at Mueller. 3 The Wage Statement
prepared by Mueller included the summer hours' bonus wages made by Ms. Marshall in the
fifty-two weeks preceding her injury on August 14, 2014. (Ex. 4.) Ms. Marshall's average
weekly wage is $1,122.50, which equates to a weekly compensation rate of$748.33. !d.

       After her injury and subsequent surgery, Ms. Marshall returned to work at Mueller on
February 3, 2015. !d. At the end of the initial compensation period on October 13, 2015,
Ms. Marshall's hourly rate was $18.16. !d. The 2015 summer bonus hours' program ended
on September 30, 2015, and "all employees in the Melt department returned to their normal
base rate of pay." !d.


2
  The "Cluster Department" identified by Ms. Mueller in her PBD is not included in the list of departments referenced in
the Memorandum Agreement. However, it was undisputed that Ms. Marshall's department falls within the terms of the
Memorandum Agreement.
3
  Pursuant to Tennessee Code Annotated section 50-6-207(3)(D)(iii) (2015), an employee is not entitled to increased
benefits when: "The employee remains employed but received a reduction in salary, wages or reduction in hours that
affected at least fifty percent (50%) of all hourly employees operating at or out ofthe same location."

                                                           2
        Ms. Marshall filed a Petition for Benefit Determination on November 10, 2015,
seeking increased permanent disability benefits. The parties did not resolve the disputed
issues through mediation, and the Mediating Specialist filed a Dispute Certification Notice
on December 14, 2015. This Court conducted the Compensation Hearing on February 16,
2016.

       At the Compensation Hearing, Ms. Marshall argued Tennessee Code Annotated
section 50-6-207(3)(B) (2015) controls the outcome in her case and provides certainty that
she is entitled to increased benefits. She pointed out the following pertinent language in
Tennessee Code Annotated section 50-6-207(3 )(B) (20 15):

         If at the time the period of compensation provided by subdivision (3)(A) ends,
         the employee has not returned to work with any employer or has returned to
         work and is receiving wages or a salary that is less than one hundred ( 100%) of
         the wages or salary the employee received from his pre-injury employer on the
         date of injury, the injured employee may file a claim for increased benefits. If
         appropriate, the injured employee's award as determined under subdivision
         (3)(A) shall be increased[.]

Ms. Marshall argued the legislature changed the pre-Reform law regarding permanent partial
disability benefits and included specified multipliers to provide certainty in the outcome. She
contends the plain meaning of Tennessee Code Annotated section 50-6-207(3)(B) (2015)
entitles her to increased benefits.

        Mueller countered the legislature did not intend for the facts ofMs. Marshall's case to
trigger increased benefits, but it intended for the Court to look at all of the circumstances
involved when making rulings under Tennessee Code Annotated section 50-6-207(3)(B)
(20 15). Mueller pointed out that Ms. Marshall remains in her same job, makes her regular
pay, and will return to summer hours' bonus pay this June. Further, it contends Tennessee
Code Annotated section 50-6-207(3)(D)(iii) (2015) does not automatically entitle an
employee to increased benefits if less than fifty percent of all employees are affected by
reductions in salary, wages or hours. 4

      In the event the Court awards increased benefits, the parties stipulated that Ms.
Marshall's calculation of increased benefits in the amount of $14,634.28 is correct, with
Mueller receiving a credit in the amount of$23,572.40 for the original award. (Ex. 4.)

4
  Tennessee Code Annotated section 50-6-207(3)(D)(iii) (2015) prohibits an employee from recovering increased
benefits when fifty percent or more of all employees operating at or out of the same location are affected by reductions in
salary, wages or hours. However, that provision appears to apply only to situations where the decrease in salary, wages
or hours occurs after an employee's work-related injury: "The employee remains employed but received a reduction in
salary, wages, or hours[.)" Tenn. Code Ann.§ 50-6-204(3)(D)(iii) (2015) (emphasis added).


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                        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 (2015). The employee in a workers' compensation claim has the burden of
proof on all essential elements of the claim. 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, 20 15). "[A]t a compensation hearing where the injured employee has arrived at a
trial on the merits, the employee must establish by a preponderance ofthe evidence that he or
she is, in fact, entitled to the requested benefits." Willis v. All Staff, No. 2014-05-0005,2015
TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Tenn. Workers' Comp. App. Bd. Nov. 9, 2015).
 See also Tenn. Code Ann.§ 50-6-239(c)(6) (2015) ("[T]he employee shall bear the burden
of proving each and every element of the claim by a preponderance of the evidence.").

       As previously stated, the sole legal issue is whether Ms. Marshall is entitled to
increased permanent partial disability benefits beyond her original award pursuant to
Tennessee Code Annotated section 50-6-207(3)(B) (2015). In Hadzic v. Averitt Express,
No. 2015 TN Wrk. Comp. App. Bd. LEXIS 14, at *8-9 (Tenn. Workers' Comp. App. Bd.
May 18, 2015), the Workers' Compensation Appeals Board addressed the principles of
statutory construction:
       Courts must avoid a construction that unduly restricts or expands the meaning
       of the language used, as every word is presumed to have meaning and purpose.
       I d. As stated by one court, when the words used "clearly mean one thing, the
       courts cannot give them another meaning under the guise of construing them."
        Pfizer, Inc. v. Johnson, No. M2004-00041-COA-R3-CV, 2006 Tenn. App.
       LEXIS 44, at *7 (Tenn. Ct. App. Jan. 23, 2006).

Additionally, [t]he court must examine the language of the statute and, if the language is
unambiguous, apply the ordinary and plain meaning. I d. If the language of the statute is
ambiguous, the court must examine the entire statutory scheme and the legislative history to
ascertain and give effect to the legislative intent." Galloway v. Liberty Mut. Ins. Co., 137
S.W.3d 568, 570 (Tenn. 2004)

       The first sentence of Tennessee Code Annotated section 50-6-207 (3 )(B) (20 15) states:

       If at the time the period of compensation provided by subdivision (3)(A) ends,
       the employee has not returned to work with any employer or has returned to
       work and is receiving wages or a salary that is less than one hundred (I 00%)
       of the wages or salary the employee received from his pre-injury employer on

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          the date ofinjury, the injured employee may file a claim for increased benefits.

(Emphasis added.)

        Since "every word is presumed to have meaning and purpose," the Court must analyze
the legislature's use of the word "wages." Hadzic, supra. "Wages" is not a defined term in
the Workers' Compensation Law. In pre-Reform cases, the Tennessee Supreme Court
defined "wage" in relation to its interpretation of the temporary partial disability statute and
the right of reconsideration statute. 5 In Wilkins v. Kellogg Co., 48 S.W. 3d 148, 153-154
(Tenn. 2001 ), the full Supreme Court concluded "wage" means an employee's hourly pay as
opposed to an employee s "average weekly wage ' when calculating temporary partial
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disability benefits pursuant to Tennessee Code Annotated section 50-6-207(2). The Court
noted it had previously reached the same conclusion regarding the former use of the word
"wage" in the statute for permanent partial disability benefits. ld. at 152. Likewise, in
Powell v. Blalock Plumbing & Elec. & HVAC, 78 S.W.3d 893, 897 (Tenn. 2002), a right of
reconsideration case, the Supreme Court reiterated that, "the wage of an employee who is
compensated on an hourly basis is the employee's hourly rate of pay."

        In Wilkins, the employee was seeking temporary partial disability benefits because of
reduced overtime hours after she returned to work on light duty restrictions. Wilkins, 48
S.W.3d at 150. The Court noted the employee's hourly pay was $21.52 per hour, and she
received an increased hourly rate for her overtime hours. !d. A union contract was in place
that prohibited employees from working overtime while on restricted duty. ld. The Court
acknowledged the employee "took home less pay while on temporary partial disability status,
but this is only because she worked 40 hours per week rather than her usual 60 hours per
week-a limitation imposed on light duty workers by the governing union contract." Jd.
Under those facts, the Court analyzed the employee's "wage" as follows:

         [Ms. Wilkins] only received an hourly wage from Kellogg, and this hourly
         wage remained the same before and after her injury. It is true that she typically
         worked twenty hours overtime per week and that after her injury she was
         unable to work these extra hours. Yet this decrease in hours was mandated by
         a union contract, which placed limits on work hours for light duty employees.

5
  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."
McCordv. Advantage Human Resourcing, No. 2014-06-0063,2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *13 n.4
(Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
6
  The Court's holding in Wilkins regarding the computation for temporary partial disability benefits was overruled on July
1, 2004, when the temporary partial disability statute was amended to include the phrase "average weekly wage."
Williams v. Saturn, No. M2004-01215-WC-R3-CV, 2005 Tenn. LEXIS I 032, at *8 (Tenn. Workers' Comp. Panel Nov.
15, 2015).

                                                             5
       Despite her inability to work overtime, she still worked a full forty-hour week
       and was compensated based on a full forty-hour week. . .. As we have stated
       previously, the purpose of workers' compensation is to "provide injured
       workers with periodic payments as a substitute for lost wages in a manner
       consistent with the worker's regular wage." Wilkins did not need a "substitute
       for lost wages in a manner consistent with [her] regular wage" because she
       was in fact paid her regular wage for the forty-three days she was on temporary
       partial disability status.

!d. at 153.

       There are also many pre-Refonn cases involving collective bargaining agreements
wherein the employees received a lower hourly rate of pay during plant shutdowns. See
Young v. Bridgestone Ams. Tire Operations, LLC, No. M2011-02551-WC-R3-WC, 2013
Tenn. LEXIS 10, at* 10-* 12 (Tenn. Workers' Comp. Panel Jan. 10, 2013) (holding the lower
cap applied because the employee had a meaningful return to work because the collective
bargaining agreement reduced his hourly wage by $2.72 per hour due to economic
conditions); Robinson v. Bridgestone Ams. Tire Operations, LLC, No. M2011-02238-WC-
R3-WC, 2012 Tenn. LEXIS 840, at *2-*12 (Tenn. Workers' Comp. Panel Nov. 21, 2012)
(holding the employee was not entitled to reconsideration benefits when a collective
bargaining agreement entered into after the employee's case settled resulted in an hourly
wage reduction to all union members due to economic reasons); Edwards v. Saturn Corp.,
No. M2007-01955-WC-R3-WC, 2008 Tenn. LEXIS 617, at *7, *10-*30 (Tenn. Workers'
Comp. Panel Sept. 25, 2008) (holding the lower cap applied because the collective
bargaining agreement required a five percent pay reduction during a layoff period due to a
lengthy plant shutdown to retool its assembly lines for production of a new product).

       Although the pre-Reform cases do not control the outcome of the present case, the
logic and reasoning behind the Tennessee Supreme Court's holdings are helpful in defining
"wages" as used in Tennessee Code Annotated section 50-6-207(3)(B) (2015). The pre-
Reform cases are also instructive regarding the effect of a collective bargaining agreement in
relation to an employee's request for increased benefits.

       In Ms. Marshall's case, the parties stipulated the hourly pay of all employees within
the affected departments changed due to the summer hours' bonus program. The summer
hours' bonus program was, and continues to be, governed by a collective bargaining
agreement that was in effect prior to Ms. Marshall's injury on August 14, 2014. The terms of
the Memorandum Agreement plainly state the union accepted the summer bonus hours'
program because the "business environment is in a recession." The parties stipulated the
terms of the Memorandum Agreement entered into on May 7, 2013, are still ongoing, and
Ms. Marshall's summer hours' bonus pay will resume in June 2016.


                                              6
        As with the employee in Wilkins, supra, a collective bargaining agreement governs
Ms. Marshall's change in hourly rate. Despite the liberal construction in favor of employees
for pre-Reform cases, the Tennessee Supreme Court held that Ms. Wilkins was not entitled to
temporary partial disability benefits even though her pre-injury hourly wage was higher for
twenty hours of overtime that she worked each week. In its analysis, the Court focused on
Ms. Wilkins' "regular wage" and determined it remained the same before and after her
injury. !d. at 153. It also focused on the fact that Ms. Wilkins' took home less pay after her
injury because the loss of her twenty hours of overtime wages "was mandated by a union
contract." !d. The collective bargaining agreement in Wilkins controlled the prohibition
against an employee working overtime while on light duty, which was clearly a determinative
factor in the Court's analysis. !d. Likewise, Ms. Marshall's "normal base rate of pay" is
what she was making when the initial compensation period expired on October 13, 2015.
Specifically, Ms. Marshall was making her "normal base rate of pay" on October 13,2015,
because the collective bargaining agreement in effect prior to her injury on August 14, 2014,
required it.

       Ms. Marshall's case is also analogous to an employee who works a swing shift and
makes a shift differential increase depending on the particular shift worked. In Ms.
Marshall's case, her injury occurred on August 14, 2014, during Mueller's summer hours'
bonus program, which runs from approximately June 2 through October 4 each year.
Therefore, her hourly pay at the time of her injury was $19.56 plus overtime. Once the initial
compensation period expired on October 13,2015, her hourly pay had returned to her normal
base rate of pay of$17.86. If Ms. Marshall's injury had occurred in any month of the year
besides June through October, her hourly pay at the end of the initial compensation period
would either be the same or higher resulting in no entitlement to increased benefits.

        The second sentence of Tennessee Code Annotated section 50-6-207(3)(8) (2015)
specifically states, "[i]f appropriate, the injured employee's award as determined under
subdivision (3)(A) shall be increased by multiplying the award by a factor of one and thirty-
five one hundredths (1.35)." (Emphasis added.) The word "appropriate" means "right or
suited for some purpose or situation.'' 7 The phrase "[i]f appropriate" indicates an employee
is only entitled to increased benefits if the Court finds that the statute's preceding sentence is
satisfied.

        In Ms. Marshall's case, ordering increased benefits would result in an illogical
outcome dependent upon which months of the year Ms. Marshall happened to be injured and
returned to work. The Court finds that the collective bargaining agreement required that Ms.
Marshall return to her "normal base rate of pay" on October 13, 2015. Accordingly, under
the facts of this case, this Court finds increased benefits are not appropriate, and respectfully
declines to award increased permanent partial disability benefits.

7
    www.merriam-webster.com (last visited March 9, 2016).

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       IT IS, THEREFORE, ORDERED that the claim ofMs. Marshall against Mueller or its
workers' compensation carrier for the requested increased permanent partial disability
benefits is denied.

       ENTERED this the 9th day of March, 2016.



                                           Andre    . Headrick
                                           Workers' Compensation Judge



Right to Appeal:

Tennessee Law allows any party who disagrees with this Compensation 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: "Compensation Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within thirty calendar days ofthe date
      the Workers' Compensation Judge entered the Compensation Hearing Order.

   3. Serve a copy of the Compensation Hearing Notice of Appeal upon the opposing party.

   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 oflndigency, 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 lndigency in accordance with this section shall result in dismissal of the
      appeal.

   5. The party filing the notice of appeal, having the responsibility of ensuring a complete
      record on appeal, may request from the Court Clerk the audio recording ofthe hearing

                                              8
   for the purpose of having a transcript prepared by a licensed court reporter and filing
   it with the Court Clerk within fifteen calendar days of the filing of the Compensation
   Hearing Notice of Appeal. Alternatively, the party filing the appeal may file a joint
   statement of the evidence within fifteen calendar days of the filing of the
   Compensation 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. See Tenn. Comp. R.
   & Regs. 0800-02-22-.03 (20 15).

6. After the Workers' Compensation Judge approves the record and the Court Clerk
   transmits it to the Workers' Compensation Appeals Board, the appeal will be
   docketed and assigned to an Appeals Board Judge for review. At that time, a
   docketing notice shall be sent to the parties. Thereafter, the party who filed the notice
   of appeal shall have fifteen calendar days after the issuance ofthe docketing notice to
   submit a briefto the Appeals Board for consideration. Any opposing party shall have
   fifteen calendar days after the filing of the appellant's brief to file a brief in response.
    No reply briefs shall be filed. Briefs shall comply with the Practice and Procedure
   Guidelines of the Workers' Compensation Appeals Board. See Tenn. Comp. R. &
   Regs. 0800-02-22-.03(6) (2015).




                                            9
                                       APPENDIX

Technical record:
          1. Petition for Benefit Determination, filed November 10, 2015;
          2. Dispute Certification Notice, filed December 14, 2015;
          3. Request for Initial Hearing, filed December 15, 2015;
          4. Transfer Order, entered December 21, 2015;
          5. Initial Hearing Order, entered January 19, 2016;
          6. Mueller Company's Pre-Hearing Statement, filed February 4, 2016;
          7. Tara Marshall's Pre-Hearing Statement, filed February 2, 2016;
          8. Mueller Company's Exhibit List, filed February 5, 2016; and,
          9. Mueller Company's Witness List, filed February 5, 2016.

The Court did not consider attachments to Technical Record filings unless admitted into
evidence during the Compensation Hearing. The Court considered factual statements in
these filings or any attachments to them as allegations unless established by the evidence.

Exhibits:
   1. Workers' Compensation Settlement Agreement dated July 31, 20 15;
   2. Medical report and impairment rating from Dr. Ben Miller, dated March 3, 2015,
       and March 5, 2015;
   3. Collective bargaining agreement entitled "Memorandum Agreement," dated May
       7, 2013; and,
   4. Joint Stipulation of the Parties, filed February 2, 2016.




                                            10
                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Compensation Hearing Order
 was sent to the following recipients by the following methods of service on this the 9th
 day ofMarch, 2016

Name             Certified    First Via Fax            Via   Email Address
                 Mail         Class Fax Number         Email
                              Mail
Jeffrey W.                                                X     jrufolo@summersfirm.
Rufolo                                                          com
Joseph R.                                                 X     jrw@smrw .com
White




                                              PENNY SHRUM, COURT CLERK
                                                 wc.courtclerk@tn. gov




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