          TENNESSEE BUREAU OF WORKERS’ COMPENSATION
         IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                         AT NASHVILLE

KENNETH FUQUA,                               )   Docket No. 2017-06-1717
       Employee,                             )
v.                                           )
                                             )   State File No. 64741-2015
PIKE ELECTRIC,                               )
       Employer,                             )
and                                          )   Judge Joshua D. Baker
LIBERTY MUTUAL INS. CO.,                     )
        Carrier.                             )


                   COMPENSATION HEARING ORDER FOR
                 PERMANENT PARTIAL DISABILIY BENEFITS


      The Court convened a compensation hearing on October 24, 2018. The only issue
was whether Mr. Fuqua is permanently partially or totally disabled. For the reasons
below, the Court finds that he is permanently partially disabled.

                                    History of Claim

      The parties stipulated to the following pertinent facts:

    Mr. Fuqua sustained an injury by accident on August 5, 2015, that arose primarily
     out of and in the course and scope of his employment with Pike.
    He notified Pike of his injury on August 14, 2015.
    Mr. Fuqua is a sixty-one year-old resident of Robertson County and has a high
     school diploma.
    He received authorized medical treatment and Pike paid for all treatment.
    Pike paid all temporary disability benefits due Mr. Fuqua.
    He has not returned to work for Pike due to his medical condition.
                             Lay Testimony and Medical Treatment

        Mr. Fuqua worked in the electrical utility business for thirty years in a range of
different positions. It was a family occupation, as he and eight other family members
worked in the same industry. He started out as an “operator,” which entailed driving
trucks, hauling equipment, and setting poles. He then worked his way up to a
“journeyman lineman,” which allowed him to work on power lines. A few years later, he
advanced to “working foreman,” a position he held until his injury. Any training he
received occurred almost exclusively on the job. Further, because Mr. Fuqua was not
“certified” as an electrical lineman—he was grandfathered in before the licensing
requirement—he could not leave Pike to work as lineman for another electrical utility.

       Outside of electrical utility work, Mr. Fuqua has experience operating heavy
equipment but little work experience beyond that. He also previously held a commercial
drivers’ license.

        On August 5, 2015, Mr. Fuqua felt a “pop” in his left shoulder while loading a
“pole rack” onto his work truck. An MRI revealed a “massive” left-shoulder rotator cuff
tear, and Dr. Allen Anderson recommended surgery.1 He performed a synovectomy.

      Afterward, Mr. Fuqua began physical therapy, and his pain improved somewhat.
However, his range of motion limitation and weakness reappeared, so Dr. Allen
Anderson referred him to Dr. Christian Anderson for a superior capsular reconstruction.

       Dr. Anderson found that Mr. Fuqua’s shoulder still had “severe dysfunction.”
According to his notes, Mr. Fuqua said he could not lift his arm and was unable to work.
After surgery and several months of therapy, he placed Mr. Fuqua at maximum medical
improvement on March 28, 2017, with a four-percent whole-body impairment rating.

        As part of his recovery Mr. Fuqua participated in a functional capacity evaluation
(FCE), which determined a functional ability between sedentary and medium. The FCE
provided recommendations for activity limitations, and Dr. Anderson imposed permanent
restrictions consistent with the recommendations. He did not believe Mr. Fuqua could
return to his previous job considering his shoulder condition.

        Mr. Fuqua testified that it hurt to perform the tasks required by the FCE and he
would not be able to perform them “as a job.” Mr. Fuqua believed he could not continue
his work as a foreman with his injury. He also felt that he could not work construction or
at a factory. He also had a hard time driving because of arm pain and could not drive for

1
  The two operating physicians share the same last name. For brevity and to avoid confusion, the Court
referred to Dr. Allen Anderson by his full name. All other references to “Dr. Anderson” mean Dr.
Christian Anderson.
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more than five to ten minutes. In addition, he felt his arm pain prevented him from
driving a truck commercially because he could not use the “three-point method” to enter
the truck.

       Mr. Fuqua said he looked for work by asking people whom he knows such as
friends and family about job opportunities, but he found none. He admitted he did not fill
out any job applications. He acknowledged he could perform some internet searches but
had not searched for jobs through that medium.

        Mr. Fuqua said his shoulder hurts daily and the pain makes sleeping difficult. He
has difficulty reaching and placing items such as a gallon of milk, or pouring coffee from
a pot. He can no longer swim or ride his motorcycle. He has trouble putting on his belt.
He also has problems washing his back and the back of his head, tying his boots, mowing
the yard, hanging clothes on a line, and grocery shopping. Despite his problems, Mr.
Fuqua said he wants to go back to work.

                             Vocational Experts’ Testimony

        Both parties presented testimony from vocational experts. John McKinney
testified first on Mr. Fuqua’s behalf and used the FCE results to form his opinion. He
considered Mr. Fuqua’s very low bilateral dexterity as noted on the FCE a significant
factor in determining his vocational ability. He also cited the waist-level carrying
restriction as the most important because workers generally perform most lifting and
carrying activities at waist level rather than below the waist or overhead.

       In addition to physical vocational ability, Mr. McKinney also assessed Mr.
Fuqua’s mental capabilities by administering the Slossen Intelligence Test. The average
score on the test is 90-110. Mr. Fuqua scored a 77, which was in the eighth percentile for
his age group and fell in the “borderline” category for intellectual function. Mr.
McKinny also used the wide range achievement test, and Mr. Fuqua scored 4.5-grade
equivalent in reading, 4.4 in spelling, and 6.8 in math.

       By combining Mr. Fuqua’s physical limitations, mental capability, and work
experience, Mr. McKinney determined he could not perform 84 percent of the jobs in the
greater Nashville area labor market.

       In addition to the loss of job access, Mr. McKinney considered other factors to
determine Mr. Fuqua’s overall vocational impairment. Several “negative employment
factors” were his age, poor reading and writing abilities, time out of the labor market,
continuing pain, and “appearance of disability” due to the guarded manner with which he
held his arm. Mr. McKinney testified that these factors would make it difficult for Mr.
Fuqua to find and maintain employment. Thus, Mr. McKinney testified he could only
perform light to sedentary work and was 100 percent vocationally disabled. On cross

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examination, however, Mr. McKinney admitted that he could never know whether Mr.
Fuqua could obtain employment unless he applied for a job.

       Michelle McBroom Weiss testified for Pike. She considered the work restrictions
specifically identified by Dr. Anderson when forming her opinion, as well as his
performance on intelligence and achievement tests. Ms. Weiss administered the fifth
edition of the wide range achievement test and found that Mr. Fuqua had abilities in
reading and language that fell below the eighth-grade level, along with math scores of an
eighth grader. She also administered the Slossen test, and he scored an 83, six points
higher than the results Mr. McKinney recorded.

       Ms. Weiss said Mr. McKinney inappropriately considered subjective criteria in
assigning Mr. Fuqua 100-percent vocational disability, such as complaints of pain. She
said vocational evaluators generally are not trained to consider complaints of pain when
forming opinions.

       Ms. Weiss also did not factor the indicated deficit in fine motor skills, which
produced no work restrictions, in forming her opinion. She stated she had to go by the
physician’s restrictions when evaluating an FCE and also stated, “For me try to interpret
an FCE . . . and restrict him further would be outside of [my] expertise, and it would also
be outside my code of ethics.” She believed considering those factors, as well as other
negative employment factors considered by Mr. McKineey, inserted subjectivity into the
vocational disability determination.

        Ms. Weiss admitted that Mr. Fuqua’s age could be a barrier to employment. She
stated further that age discrimination is “not supposed to happen,” so there is no way to
quantify the effect age would have on the loss of job access. Ms. Weiss, however,
testified she considered age when determining probable wage loss and vocational
potential. Ms. Weiss further admitted that, because Mr. Fuqua would be starting a new
career, his disability could affect his vocational potential, i.e. his ability to obtain a job.
Despite this recognition, she did not factor this into her vocational disability opinion.
Ms. Weiss did, however, cite Mr. Fuqua’s failure to apply for jobs as a factor when
forming her opinion.

       Ms. Weiss said she looked at both medium and light categories of work when
determining the number of available jobs in Mr. Fuqua’s area and averaged the number
of medium intensity jobs with those of light intensity. This yielded a loss of access to 65
percent of jobs in the local labor market. She also factored in his probable loss of income
using an hourly wage of $10.00, which would be 68 percent less than his prior weekly
salary of more than $1,200.00. Weighing all these factors, Mr. Weiss found Mr. Fuqua
suffered 67-percent vocational disability from the workplace accident.



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                       Findings of Fact and Conclusions of Law

       At a compensation hearing, Mr. Fuqua must establish that he is entitled to benefits
by a preponderance of the evidence. 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). He
has the burden of proof on all essential elements of his claim. Scott v. Integrity Staffing
Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015).

                           Permanent Total Disability Benefits

       Mr. Fuqua seeks permanent total disability benefits. “When an injury . . . totally
incapacitates the employee from working at an occupation that brings the employee an
income, the employee shall be considered totally disabled[.]” Tenn. Code Ann. § 50-6-
207(4)(B). The assessment of permanent total disability is based on numerous factors,
including the employee’s skills and training, education, age, local job opportunities, and
the capacity to work at the kinds of employment available in the disabled condition.
Roberson v. Loretto Casket Co., 722 S.W.2d 380, 384 (Tenn. 1986). Although a rating of
anatomical disability by a medical expert is also one of the relevant factors, “the
vocational disability is not restricted to the precise estimate of anatomical disability made
by a medical witness.” Henson v. City of Lawrenceburg, 851 S.W.2d 809, 812 (Tenn.
1993). In addition, the employee’s “own assessment of his or her overall physical
condition, including the ability or inability to return to gainful employment, is competent
testimony that should be considered[.]” Duignan v. Stowers Mach. Corp., 2018 TN Wrk.
Comp. App. Bd. LEXIS 25, at *11 (May 29, 2018).

       Here, the vocational experts disagreed about the extent of Mr. Fuqua’s vocational
disability. Mr. McKinney stated that, while he calculated his loss of access to work at 84
percent, he determined Mr. Fuqua to be 100-percent vocationally disabled when taking
into account his physical capacity and other vocationally relevant factors such as age,
appearance of disability, continuing pain, reading and writing skills, and time outside the
labor market. Ms. Weiss determined Mr. Fuqua suffered 67-percent vocational disability
but retained the ability to work.

       Mr. Fuqua demonstrated he had some serious physical limitations with the left
side of his body. While he has a high school education, his intelligence and test scores
showed mathematical and reading comprehension levels well below those of a high
school graduate. And, even though he had a commercial driver’s license, he testified that
due to his shoulder, he could not drive long distances or get into a truck.

       An additional concern is Mr. Fuqua’s job search. Mr. Fuqua testified he asked
several friends and family members about work. While he did not specify the type, the
Court understood him to mean work in the electrical utility business. While it makes
sense that Mr. Fuqua would look to the only industry he knows, the search seems futile,

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as Dr. Anderson said he cannot do this type of work anymore. Aside from this search,
Mr. Fuqua did not apply for any other type of work.

       The Appeals Board addressed a similar situation in Duignan, where a sixty-one-
year-old employee retired after suffering a work injury. He did not seek employment
because he “listened to his body” and feared re-injury. The employee chose to retire
despite the employer’s offer of accommodated work. The Board held that a finding of
permanent total disability would require speculation, since the employee made no effort
to determine his options in the open labor market consistent with his restrictions.
Additionally, the Board noted no doctor indicated he was unable to work. Id. at *13-14.

       The Court finds this situation similar to Duignan. Although Dr. Anderson said
Mr. Fuqua could not do his previous job, he did not say he could not work at all.
Additionally, Mr. Fuqua made little effort to find work. While he asked friends and
relatives about work, he did not fill out any applications. Mr. McKinney and Ms. Weiss
agreed that no one knew if he could get a job if he did not apply for one. Therefore, the
Court concludes that Mr. Fuqua did not establish by a preponderance of the evidence that
his shoulder injury totally incapacitated him from working at any job that brings an
income. Thus, the Court denies Mr. Fuqua’s claim for permanent total disability benefits.

                         Permanent Partial Disability Benefits

       Mr. Fuqua and Pike agreed to a weekly compensation rate of $805.85. Mr. Fuqua
suffered a four-percent permanent medical impairment from his injury, entitling him to
eighteen weeks of benefits, resulting in an original award of $14,505.30. Additionally,
because he did not return to work and is more than forty years old, his original award is
increased by factors of 1.35 and 1.2, for a total award of $23,498.55.

        The Court recognizes the vast difference between the potential awards for
permanent partial versus permanent total disability in this case. While the disparity is
great, the law does not provide for a middle ground for fashioning an award that falls
somewhere between these two extremes under the facts of this case.

IT IS, THEREFORE, ORDERED as follows:

   1. Pike shall provide Mr. Fuqua with ongoing medical treatment for his work-related
      left-shoulder injury with Dr. Christian Anderson as the authorized treating
      physician.

   2. Mr. Fuqua is entitled to permanent partial disability benefits for a four-percent
      permanent partial disability in the amount of $23,498.55, which equals twenty-
      nine weeks and one day of benefits at his compensation rate of $805.85.


                                           6
  3. Costs of $150.00 are assessed against Pike Electric under Tennessee Compilation
     Rules and Regulations 0800-02-21-.07 (2017), for which execution may issue as
     necessary.

  4. Pike shall prepare and submit a Statistical Data Form (SD2) within ten business
     days of this order becoming final.

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

ENTERED ON DECEMBER 11, 2018.



                                 _____________________________________
                                 Judge Joshua D. Baker
                                 Court of Workers’ Compensation Claims




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                                     APPENDIX

Exhibits:

   1.   Medical Records
   2.   Deposition of Dr. Christian Anderson
   3.   Curriculum Vitae of John W. McKinney, III
   4.   Table of FCE Restrictions
   5.   Employee’s Rule 26 Disclosure of John W. McKinney, III
   6.   Curriculum Vitae of Michelle McBroom Weiss
   7.   Vocational Evaluation Report of Michelle McBroom Weiss
   8.   October 10, 2018 Supplemental Note to Michelle McBroom Weiss’s Vocational
        Evaluation Report

Technical Record:

   1. Petition for Benefit Determination
   2. Dispute Certification Notice filed October 20, 2017
   3. Dispute Certification Notice filed September 25, 2018
   4. Request for Scheduling Hearing
   5. Scheduling Order
   6. Employee’s Witness and Exhibit List
   7. Employer’s Witness and Exhibit List
   8. Employer’s Pre-Compensation Hearing Statement
   9. Employee’s Pre-Compensation Hearing Statement
   10. Employer’s Pre-Trial Brief




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                          CERTIFICATE OF SERVICE

       I certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on December 11, 2018.

Name                     Certified Via Via        Service sent to:
                         Mail      Fax Email
Brian Dunigan,                           X        brian@poncelaw.com;
Employee’s Attorney                               andrew@poncelaw.com
David Hooper,                                X    dhooper@hooperzinn.com;
Employer’s Attorney                               rlanglin@hooperzinn.com




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




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