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

TROY J. BARLOW,                                            )    Docket No. 2017-05-0387
          Employee,                                        )
v.                                                         )
THE CAR PEOPLE, LLC,                                       )    State File No. 25036-2017
          Employer,                                        )
And                                                        )
PLAZA INS. CO.,                                            )    Judge Dale Tipps
          Insurance Carrier.                               )
                                                           )

                   EXPEDITED HEARING ORDER GRANTING BENEFITS


        This matter came before the undersigned workers’ compensation judge on August
16, 2017, for an Expedited Hearing. The present focus of this case and the central legal
issue is whether Mr. Barlow is likely to establish at a hearing on the merits that he is
entitled to temporary disability benefits.1 For the reasons set forth below, the Court holds
Mr. Barlow is likely to meet this burden and is entitled to temporary disability benefits.

                                                History of Claim

        Mr. Barlow, an automotive mechanic, injured his left shoulder while lifting a large
trailer wheel at work on March 16, 2017. With his employer’s permission, Mr. Barlow
went to the emergency room the same day. The ER physician took Mr. Barlow off work
for two days, allowing him to resume normal duty as of Saturday, March 18. Mr. Barlow
was not scheduled to work that weekend, so he returned to work on Monday, March 20.
The pain in his shoulder was so severe that he was unable to do his job, and he went
home.

       The Car People, LLC (TCP) provided a panel of medical providers, from which
Mr. Barlow selected Concentra Medical Centers. He treated at Concentra six times
between March 22 and April 20, receiving temporary work restrictions at each visit.
These restrictions varied somewhat, but generally limited the use of his left arm with
specific limitations on lifting, pulling, and reaching.
1
    The Car People, LLC did not challenge the compensability of Mr. Barlow’s injury at the Expedited Hearing.

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       TCP accommodated Mr. Barlow’s restrictions for three weeks by allowing him to
perform vehicle inspections and repairs that required little or no left-arm involvement.
Whenever an assigned job exceeded his restrictions, such as removing wheels and tires
from a car, Mr. Barlow could ask someone in the shop for assistance such as Mr. Pace,
the manager, or Mark, the other technician in the shop. Mr. Barlow’s eighteen-year-old
son, Cameron, would also sometimes assist his father with these heavier tasks. Although
Cameron was not a TCP employee, he often came to work with his father to learn about
being a mechanic. Pay records showed that Mr. Barlow earned $2,452.50 while working
light duty from March 26 through April 14.

        Mr. Barlow testified that he arrived at work following an authorized medical
appointment on April 14, and Mr. Pace told him he was being written up as a “no call, no
show.” Later that afternoon, Mr. Pace told him to perform a thirty-point inspection and
brake job. The only other employee, Mark, was out to lunch, so Mr. Barlow was unable
to remove the wheels without violating his restrictions. He asked Mr. Pace for help, but
Mr. Pace said he was busy with customers. Mr. Barlow told him he could not do the
assignment without his help. Mr. Pace later brought out the phone and told him Mr.
Isaac, the owner of TCP, wanted to speak to him.

       Mr. Isaac told Mr. Barlow that he needed to take the wheels off the car. When Mr.
Barlow said he needed help to do that, Mr. Isaac suggested he try standing on one leg and
using his other knee to help steady and lift the tire. Mr. Barlow said he would not risk
hurting himself further by doing that. An hour or so later, Mr. Isaac came to the shop.
He accused Mr. Barlow of hanging up on him, which Mr. Barlow denied. Mr. Isaac told
Mr. Barlow that if he would not do the job, he needed to leave.

       On cross-examination, Mr. Barlow confirmed that the first part of the assignment
– the thirty-point inspection – was within his restrictions. Asked why he refused to do
the inspection, he explained that he never refused. Instead, he took the car for a drive,
which is the first step in the process. When he brought it back, he could not pull it in the
garage because the car had a low ride height. In order to put it on the only lift available,
Mr. Barlow needed to raise the car a little bit by hand to slide the lift arms under it. This
would have been impossible using just one hand.

       TCP terminated Mr. Barlow’s employment that same day. The reason on the
Employee Exit/Termination Sheet was: “Insubordination. Employee Troy Barlow
refused to do a complimentary inspection & brake job.”

       Mr. Isaac gave his own version of the events before the termination. He said he
received a phone call from Mr. Pace and Mr. Barlow. Mr. Barlow told him he could not
take the tires off to do a brake job. Mr. Isaac asked him why he couldn’t get help from
another employee, but he did not testify as to Mr. Barlow’s response. The phone call

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ended when Mr. Barlow hung up on him. As a result, Mr. Isaac assumed that Mr. Barlow
quit his job. Mr. Isaac then went to the store to do the brake job himself and found Mr.
Barlow still there. He asked why Mr. Barlow did not want to do the job. Mr. Barlow
said he could not and “that he wasn’t going to do anything,” so Mr. Isaac fired him.

        Mr. Isaac said that Mr. Barlow was able to do many of his work tasks without
assistance. This included vehicle inspections such as the one Mr. Barlow refused to
complete. Although Mr. Isaac acknowledged Mr. Barlow required help to remove the
tires for an inspection or brake job, other people were present to help him. On cross-
examination, Mr. Isaac admitted Mr. Barlow told him he could not take the wheels off
without violating his restrictions. Mr. Isaac also acknowledged that he did not offer to
take the tires off nor ask anyone else to help Mr. Barlow.

       TCP provided no temporary disability benefits to Mr. Barlow, either before or
after his termination. It continued to provide treatment, including surgery for a torn
rotator cuff on August 3. Mr. Barlow testified he has been unable to work anywhere
since leaving TCP.

       Mr. Barlow requested temporary partial disability (TPD) benefits from date of his
termination, to November 18, 2016, through the date of his shoulder surgery. He also
sought temporary total disability (TTD) benefits for the day after his accident and the
period of total disability following his shoulder surgery. The parties stipulated to Mr.
Barlow’s average weekly wage at $774.40 and his compensation rate at $516.27. Mr.
Barlow also requested attorney fees and a penalty for unpaid temporary disability
benefits.

       TPC countered that Mr. Barlow failed to meet his burden of proving he is entitled
to any temporary disability benefits. It contended he worked his regular work hours
before his termination and is thus ineligible for TPD benefits for that period. As for the
period after Mr. Barlow’s termination, TPC argued his refusal to perform his assigned
work on April 14 was not a good-faith effort to return to work.

                       Findings of Fact and Conclusions of Law

       Because this case is in a posture of an Expedited Hearing, Mr. Barlow need not
prove every element of his claim by a preponderance of the evidence in order to obtain
relief. Instead, he must come forward with sufficient evidence from which this Court
might determine he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. §
50-6-239(d)(1) (2016); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).




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                              Temporary Disability Benefits

        An injured worker is eligible for TTD 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. Jones v. Crencor Leasing and Sales, TN Wrk. Comp. App. Bd. LEXIS 48,
at *7 (Dec. 11, 2015). Per the emergency department restrictions, Mr. Barlow was taken
completely off work for the day after his injury. This was the only date of total disability
until his rotator-cuff surgery, at which time Dr. Jordan took him off work from August 3
through August 16. Because no one disputes the causal connection between these periods
of disability, Mr. Barlow is likely to prove he is entitled to fifteen days of TTD benefits
totaling $1,106.29.

       Mr. Barlow also seeks TPD benefits. This is a category of vocational disability
distinct from temporary total disability and is available when the temporary disability is
not total. See Tenn. Code Ann. § 50-6-207(2) (2016). 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.” Mace v. Express
Servs., Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 49, at *8 (Dec. 11, 2015).

       Mr. Barlow worked light duty per the Concentra restrictions between March 22
and April 14. During that twenty-four-day period, he earned wages totaling $2,827.50.
This equals an average daily gross pay of $117.81 or $824.69 per week. As his actual
average weekly earnings were higher than the stipulated average weekly wage of
$774.40, he appears unlikely to prevail at a hearing on the merits on his claim for TPD
benefits for this period.

       This leaves the question of whether Mr. Barlow is entitled to TPD benefits for the
period following his termination. An injured worker may be eligible for TPD benefits
when the employer fails to return the employee to work within his restrictions. Id. TCP
unquestionably failed to return Mr. Barlow to work once it terminated his employment.
However, it contends he is not entitled to TPD benefits because he was terminated for
refusing to perform his work and this does not constitute a good-faith effort to return to
work. See Kelley v. D&S Residential Holdings, No. E2011-02392-WC-R3-WC, 2012
Tenn. LEXIS 632, at *28-29 (Tenn. Workers’ Comp. Panel Sept. 4, 2012) (an employee
has an obligation to make a “good faith effort” to return to work).

       The Workers’ Compensation Appeals Board addressed the issue of termination
while on light duty.

       Even though an employee has a work-related injury for which temporary
       benefits are payable, the employer is entitled to enforce workplace rules.
       Thus, an employee’s termination due to a violation of a workplace rule may

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           relieve an employer of its obligation to pay temporary disability benefits if
           the termination was related to the workplace violation.

Barrett v. Lithko Contracting, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 70, at *9
(June 17, 2016)(citations omitted).

       The workplace “violation” that led to Mr. Barlow’s termination was his failure or
refusal to complete the inspection and brake job on April 14. When confronted with such
a case, the Court must “consider the employer’s need to enforce workplace rules and the
reasonableness of the contested rules.” An employer will not be penalized for enforcing
a policy if the court determines “(1) that the actions allegedly precipitating the
employee’s 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 the dismissal.” Id. After careful review of all the evidence, the Court
concludes that Mr. Barlow’s actions did not rise to the level of misconduct and that he
made a good-faith effort to return to his job.

        Although TCP questioned the specific restrictions that were in place on April 14,2
no one disputed that Mr. Barlow’s authorized medical providers imposed limitations on
his use of the left arm and those limitations prevented him from being able to remove
tires from a vehicle. In fact, Mr. Isaac admitted that Mr. Barlow required someone to
help him remove the tires for an inspection or brake job.

       TCP also argued that Mr. Barlow refused even to begin the inspection. However,
Mr. Barlow explained that he did so by driving the car but could not put this particular
car on the lift without assistance. TCP submitted no testimony or other proof to rebut this
statement.

       Similarly, Mr. Isaac’s testimony that other people were present to help Mr. Barlow
with the tires is unsupported by any other proof. He admitted he did not offer to help Mr.
Barlow, and other than Mr. Pace, he failed to identify any other employees present at the
time. Mr. Barlow, on the other hand, explained that Mr. Pace refused to help because he
was busy with customers and his only other coworker was on his lunch break. The Court
notes that Mr. Barlow appeared steady, forthcoming, reasonable, and honest, which
characteristics, according to the Tennessee Supreme Court, are indicia of reliability. See
Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014). Contrasted with the vague and
unsubstantiated nature of Mr. Isaac’s testimony, and in the absence of any other proof
presented by TCP, the Court finds the evidence preponderates against Mr. Isaac’s
contention that help was available to Mr. Barlow to perform the inspection and brake
job.3 From this, the Court must conclude that TCP terminated Mr. Barlow for refusing to
2
    Specifically, it raised the issue of whether Mr. Barlow’s restrictions included a prohibition of using vibratory tools.
3
    To the extent Mr. Isaac may have suggested Mr. Barlow’s son should have helped him, the Court notes that

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perform work outside his restrictions.

        This case does not involve an employee who refused to accept an offer of light
duty. Mr. Barlow returned to light-duty work as soon as his authorized doctor provided
him with temporary restrictions, and he continued to work with no problem as long as
TCP accommodated those restrictions. Nor is this a case of misconduct. Mr. Barlow did
nothing more than refuse to perform a task that TCP admitted he could not perform
without violating his restrictions. Mr. Barlow, therefore, appears likely to prove he is
entitled to TPD benefits in the amount of $8,112.81 for the period from April 15, the day
after his termination, through August 2, the day before his surgery.

                                                 Penalty

       Mr. Barlow seeks an order imposing a penalty under Tennessee Code Annotated
section 50-6-205(b)(3) (2016), which provides:

        [I]f an employer . . . or an employer’s insurer fails to pay, or untimely
        pays, temporary disability benefits within twenty (20) days after the
        employer has knowledge of any disability that would qualify for benefits
        under this chapter, a workers’ compensation judge shall have the authority
        to assess . . . a civil penalty in addition to the temporary disability benefits
        that are due to the employee.

        Mr. Barlow may well be entitled to the requested penalty for unpaid disability
benefits, but the Court declines to make that determination at this time. The statute
specifies that the penalty is only applicable to an employer who has “knowledge of any
disability that would qualify for benefits under this chapter.” That TCP had knowledge
of Mr. Barlow’s disability is clear, as he provided TCP with copies of all his medical
restrictions. However, because the benefits awarded at this time are based upon a lesser
evidentiary standard than that of a final hearing, it would be premature to conclude that
Mr. Barlow will, in fact, “qualify for benefits under this chapter.” The requested penalty
is more properly an issue for the final compensation hearing.

                                              Attorney Fees

       Finally, Mr. Barlow seeks attorney fees under Tennessee Code Annotated section
50-6-226(d)(1)(B) (2016). This section allows an award of fees and reasonable costs
incurred when an employer:

        Wrongfully denies a claim by filing a timely notice of denial, or fails to


Cameron was not a TCP employee and that Mr. Barlow had no legal duty to provide his own assistant in order to
perform light-duty work.

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      timely initiate any of the benefits to which the employee is entitled under
      this chapter . . . if the workers’ compensation judge makes a finding that
      such benefits were owed at an expedited hearing or compensation hearing.

The Appeals Board recently held that this provision does not require determination of fee
requests “at an interlocutory stage of the case,” although it suggested such a
determination might be appropriate in some cases. It noted that “each case must be
evaluated based on the particular circumstances presented,” although it provided no
guidance as to the circumstances that should be considered. See Andrews v. Yates Servs.,
LLC, 2017 TN Wrk. Comp. App. Bd. LEXIS 35, at *7-8 (May 23, 2017).

       Much like his penalty request, Mr. Barlow may have grounds for an eventual
award of attorney fees in this case. However, he presented no evidence of why the
“particular circumstances” of this case qualify for an immediate award of fees under
Andrews. The Court, therefore, denies Mr. Barlow’s request for fees at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. The Car People, LLC shall continue to provide Mr. Barlow with medical treatment
      made reasonably necessary by his March 16, 2017 injury in accordance with
      Tennessee Code Annotated section 50-6-204.

   2. The Car People, LLC shall pay Mr. Barlow temporary total disability benefits in
      the amount of $1,106.29 for March 17, 2017, and the period of August 3, 2017,
      through August 16, 2017.

   3. The Car People, LLC shall pay Mr. Barlow temporary partial disability benefits in
      the amount of $8,112.81 for the period of April 15, 2017, through August 2, 2017.

   4. Mr. Barlow’s requests for the twenty-five percent penalty and attorney fees are
      deferred until the Compensation Hearing.

   5. This matter is set for a Scheduling Hearing on November 28, 2017, at 9:30 a.m.
      You must call 615-741-2112 or toll-free at 855-874-0473 to participate. Failure to
      call may result in a determination of the issues without your participation. All
      conferences are set using Central Time (CT).

   6. 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 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

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      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.

   7. For questions regarding compliance, please contact the Workers’ Compensation
      Compliance Unit via email WCCompliance.Program@tn.gov.

      ENTERED this the 23rd day of August, 2017.



                                 _____________________________________
                                 Judge Dale Tipps
                                 Court of Workers’ Compensation Claims


                                     APPENDIX

Exhibits:
   1. Affidavit of Troy Barlow
   2. Agreed Exhibit List
   3. St. Thomas Rutherford ER restrictions
   4. Concentra Work Activity Status Reports
   5. Payroll printouts of March 24 and March 31
   6. Affidavit of Steven Waldron
   7. Employee Exit/Termination Sheet
   8. Technician Efficiency records
   9. Wage Statement
   10. Payroll records
   11. Transcript of Troy Barlow’s recorded statement

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Employer’s Pre-Hearing Brief
   5. Employee’s Pre-Expedited Hearing Statement




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                             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 23rd day
 of August, 2017.

Name               Certified Mail Email          Email Address

R. Steven                            x           arlenesmith@comcast.net
Waldron

Daniel Howard                        X           Daniel.howard@SA-Trial.com




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




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