                                                                               FILED
                                                                             Sep 13, 2018
                                                                             01:42 PM(CT)
                                                                          TENNESSEE COURT OF
                                                                         WORKERS' COMPENSATION
                                                                                CLAIMS




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

Raymond Bowen,                              )   Docket No. 2018-06-0807
          Employee,                         )
v.                                          )
Resource Management Co., Inc.,              )   State File No. 51334-2017
              Employer,                     )
And                                         )
Selective Ins. Co. of S.C.,                 )   Judge Kenneth M. Switzer
              Carrier.                      )


      EXPEDITED HEARING ORDER GRANTING REQUESTED RELIEF


       Raymond Bowen filed a Request for Expedited Hearing, which this Court heard
on September 11, 2018. The hearing concerned his entitlement to temporary partial
disability benefits. Specifically the legal issue was whether Mr. Bowen may receive
these benefits even though Resource Management Company closed. The Court holds
that he may and grants his request.

                                   History of Claim

       Mr. Bowen has worked as a truck driver for approximately fifty years. He worked
for Resource Management driving a dump truck when he injured his right shoulder on
June 26, 2017. Mr. Bowen received authorized treatment with Dr. Lucas Richie. Dr.
Richie placed restrictions of no lifting, pushing or pulling more than twenty pounds, and
no overhead lifting with the right arm. For the purposes of this hearing only, Resource
Management agreed that Mr. Bowen's injury is causally connected to work. The parties
additionally agreed that his weekly compensation rate is $464.54.

      Mr. Bowen returned to light-duty work earning his pre-injury wage. Specifically,
he drove a truck with an automatic transmission. On March 1, 2018, Resource
Management laid him and two other employees off due to closure of the company, and it



                                            1
sold the truck he drove. 1 Resource Management offered the declaration of Mike Johnson,
its president, who stated that "financial pressures" led to the company laying off almost
every employee in March, including Mr. Bowen. Mr. Bowen agreed that the business'
closing and his injury were not connected, nor did he believe the layoff and his injury
were related.

       Mr. Bowen testified that afterward he sought other jobs driving a truck but was
unable to find work. He specifically identified Vulcan, Jones Brothers and Freeman as
companies where he looked for employment. Mr. Bowen did not actually fill out an
application for these positions but stated that within the field some employers do not use
written applications. Rather, he called and asked about work. Mr. Bowen did not look
for jobs outside his field. He conceded he did not know if he could do other types of
work because he has not tried, nor is he interested in looking outside his field.

       Mr. Bowen began drawing from a pension and receiving Social Security
retirement benefits approximately eight years ago. He returned to work after he retired.
He testified that he still receives income from the pension and Social Security and now
considers himself retired. However, Mr. Bowen testified that, if he were offered a job, "I
would take work if I had it, yes."

        In August, Dr. Richie altered the restrictions to prohibit use of his right arm,
including no pushing, pulling, lifting or overhead use. Mr. Bowen testified that the
restrictions prevent driving even an automatic transmission truck.

       Mr. Bowen argued he is entitled to temporary partial disability benefits from
March 1 through the present. He asserted that the Workers' Compensation Law does not
prohibit an award of temporary disability benefits when an employee is laid off "for
unrelated reasons." All that an employee must show, he asserted, is that he is unable to
work due to an injury; a causal connection exists between the injury and his inability to
work; and the period of disability. The employee need not show that he is unable to work
with a specific employer. Mr. Bowen maintained that, but for the restrictions, he could
have found other employment after the layoff.

       Resource Management countered that Mr. Bowen does not meet the requirements
for temporary partial disability benefits because his unemployment does not relate to his
injury but rather to the layoff. In addition, Mr. Bowen's efforts to find other work were
insufficient. He now considers himself retired. Further, the layoff had no connection to
Mr. Bowen's injury, and he was treated no differently than any other employee.

     Both parties discussed Heard v. Carrier Corp., 2018 TN Wrk. Comp. App. Bd.
LEXIS 16 (Apr. 20, 20 18), and whether it controls this case.

1
    Resource Management argued the layoff occurred on March 10.

                                                   2
                       Findings of Fact and Conclusions of Law

     Mr. Bowen must present sufficient evidence that he is likely to prevail at a hearing
o~the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2017); McCord v. Advantage
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

        To qualify for temporary disability benefits, Mr. Bowen must establish: (1) that he
became disabled from working due to · a compensable injury; 2) that there is a causal
connection between the injury and the inability to work; and 3) the duration of the period
of disability. Jones v. Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd.
LEXIS 48, at *7 (Dec. 11, 2015). The Workers' Compensation Law provides that an
injured worker is entitled to temporary partial disability benefits when the temporary
disability is not total. See Tenn. Code Ann. § 50-6-207(1 )-(2). Temporary 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). "In
circumstances where the treating physician has released the injured worker to return to
work with restrictions prior to maximum recovery, and the employer ... cannot return
the employee to work within the restrictions ... , the injured worker may be eligible for
temporary partial disability." Jones, at *8.

        Here, Resource Management agreed that Mr. Bowen suffered a compensable
injury but argued that no causal connection exists between the injury and his present
inability to work. The parties agreed that the restrictions were in effect when Resource
Management laid Mr. Bowen off and they remained in place until August 2018, when
they changed slightly.

        The Court finds Mr. Bowen credible and that Resource Management laid him off
on March 1. Since then, Resource Management has not returned him to work within his
restrictions, as Jones dictates. Further, the Court finds a causal connection between Mr.
Bowen's injury and his present inability to work. Resource Management's explanation-
that the business closed- bears no legal significance to the issue of temporary partial
disability entitlement under Jones. Resource Management cited no on-point authority to
support its position that closing the business ends its responsibility to pay temporary
partial disability to employees under restrictions, who are unable to work elsewhere due
to those restrictions.

        The Court agrees with Mr. Bowen that Resource Management's reliance on Heard
v. Carrier Corp. is misplaced. In Heard, the injured worker received temporary partial
disability benefits until she was one of approximately 400 workers subject to a seasonal
lay-off under a collective bargaining agreement. Heard, at *2. The employee did not
work elsewhere during the layoff and did not receive unemployment compensation

                                            3
because she was ''under workers' compensation." Id. at *3. The Board wrote that her
layoff was "unrelated to the physical requirements of her restricted position or
Employer's ability to accommodate her restrictions. . .. [T]here is no evidence that she
was treated differently from other employees in similar circumstances." Id. at *6. The
Board concluded that the evidence did not preponderate against the trial court's ruling
that the employee did not meet the requirements for temporary partial disability benefits.
The Board further noted that the self-represented employee did not file a brief on appeal.
!d.

       Mr. Bowen's facts are distinguishable. In Heard, a collective bargaining
agreement anticipated the seasonal layoff of the injured worker and hundreds of others.
Here, the layoff was neither seasonal nor expected due to a collective bargaining
agreement. In fact, although Resource Management called it a "layoff," the practical
effect was it terminated Mr. Bowen with no expectation of rehiring him, unlike Heard.
Further, the employee in Heard did not work elsewhere and did not receive
unemployment compensation because she was "under workers' compensation." The
opinion is silent as to whether after the layoff she sought work. In this case, however, the
unrefuted evidence is that Mr. Bowen sought work within his field with three or four
employers but found no employment.

        The Court further finds Mr. Bowen's post-layoff job search efforts were
reasonable, as was his determination to look solely within the field he worked for
approximately fifty years. While Resource Management questioned the sufficiency of his
efforts to find work after the layoff, it cited no authority to support its position. The
Court finds Mr. Bowen made diligent attempts to find post-layoff work but that his
restrictions prevented him from being employed. The Court is likewise unconvinced that
Mr. Bowen's testimony that he "considers himself retired" bars his entitlement to
temporary disability benefits. Despite that categorization, Mr. Bowen sought work after
his layoff. More importantly, he was working up until March 2018 while collecting these
retirement benefits.

       Therefore, Mr. Bowen presented sufficient evidence from which this Court
concludes that he is likely to prevail at a hearing on the merits regarding his entitlement
to temporary partial disability benefits. 2



2
  Resource Management argued that, should the Court hold it owes temporary disability benefits, it should
receive a credit for the minimum weekly benefit under Tennessee Code Annotated section 50-6-207. It
relied on Cohea v. Thaxton, No. 20040-01611-WC-R3-CV, 2005 LEXIS 641 (Tenn. Workers' Comp
Panel Aug. 15, 2005). In that case, the injured worker voluntarily chose not to seek employment, so the
Special Workers' Compensation Panel remanded the case for recalculation of temporary partial disability
benefits, imputing the minimum wage. The facts here are distinguishable because Mr. Bowen sought
employment. Therefore, the Court declines to order the requested credit.

                                                   4
IT IS, THEREFORE, ORDERED as follows:

  1. Resource Management shall pay past temporary partial disability benefits in a
     lump sum totaling $13,006.56. (March 1 through the present is 196 days, at a
     weekly compensation rate of $464.54 or $66.36 per day; 196 x $66.36 =
     $13,006.56.) Further, it must continue paying temporary disability benefits in the
     weekly amount of $464.54 until Mr. Bowen reaches maximum medical
     improvement or finds employment.

  2. This matter is set for a scheduling hearing on November 26, 2018, at 9:00 a.m.
     Central Time. You must call 615-532-9552 or toll-free at 866-943-0025 to
     participate in the hearing. Failure to call may result in a determination of the
     issues without your participation.

  3. 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).
     The Insurer or Self-Insured Employer must submit confirmation of compliance
     with this Order to the Bureau by email to W ' omplianc .Program , ~ ,tn.go 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 v.a email at
     WCCompliance.Pr gram@tn.gov.

     ENTERED SEPTEMBER 13,2018.




                                           5
                                       APPENDIX

Exhibits:
   1. Affidavit of Raymond Bowen
   2. Written Declaration of Mike Johnson

Technical record:
   1. Petition for Benefit Determination
   2. Employer's position statement to mediator
   3. Dispute Certification Notice
   4. Request for Expedited Hearing
   5. Pre-Hearing Brief of Employer and Insurer
   6. Employee's Pre-Hearing Statement


                             CERTIFICATE OF SERVICE

        I certify that a copy of the Expedited Hearing Order was sent to these recipients by
the following methods of service on September 13, 2018.

Name                         Certified Via       Via      Service sent to:
                             Mail      Fax       Email
Michael Fisher,                                    X      mfisher@ddzlaw .com
employee's attorney
Fred Baker, employer's                              X     fbaker@wimberly lawson.com
attorney                                                  bcopeland@wimberlylawson.com




                                          Pen~,~;;:;
                                          Court of ~r rkers' Compensation Claims
                                          WC.CourtClerk@tn.gov




                                             6
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers’
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements 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.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
   Filed Date Stamp Here                     EXPEDITED HEARING NOTICE OF APPEAL
                                                  Tennessee Division of Workers' Compensation
                                                                                                     Docket#: - - - -- -- - --
                                                      www.tn.go v/labor-wfd/wcomp.shtm l
                                                                                                     State File #/YR: - - -- - - --
                                                             wc.courtclerk@tn.gov
                                                                1-800-332-2667                       RFA#: _ _ _ _ _ _ _ _____ _

                                                                                                     Date of Injury: - - - -- - - - -
                                                                                                     SSN: _______ _ ______ __




                      Employee


                      Employer and Carrier

          Notice
          Noticeisg~enthat _ _ _ _ _ _ _~~--~~~~---~~~--------~
                                    [List name(s) of all appealing party(ies) on separate sheet if necessary]

          appeals the order(s) of the Court of Workers' Compensation Claims at _ __

           -~~~-----~~~~~~~~-to the Workers' Compensation Appeals Board .
           [List the date(s) the order(s) was filed in the court clerk's office]

          Judge___________________________________________

          Statement of the Issues
          Provide a short and plain statement of the issues on appeal or basis for relief on appeal:




          Additional Information
          Type of Case [Check the most appropriate item]

                             D   Temporary disability benefits
                             D   Medical benefits for current injury
                             D   Medical benefits under prior order issued by the Court

          List of Parties
          Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
          Address:. _______________________ ______________ ___________

          Party's Phone:.____________________________ Email: _________________________

          Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -

          Attorney's Address:. _ _ _ _ _~~-~~~~----~~----                                             Phone:
          Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
          Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __

                                        *Attach an additional sheet for each additional Appellant*

LB-1099    rev.4/15                                        Page 1 of 2                                                     RDA 11082
Employee Name: - - - -- - - -- - - -              SF#: _ _ _ _ __ _ _ _ _ DO l: _ __             _ __




Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee



Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __

Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:

Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

                       * Attach an additional sheet for each additional Appellee *


CERTIFICATE OF SERVICE

I,                                             certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the              day of__, 20_ .



[Signature of appellant or attorney for appellant]



LB-1099   rev.4/1S                                Page 2 of 2                              RDA 11082
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                   800-332-2667


                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - - -

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - - - - - - - -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

             My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -

             My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ _ ___

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/Dental $            per month

        Groceries         $         per month           Telephone       $           per month
        Electricity       $         per month           School Supplies $           per month
        Water             $         per month           Clothing        $           per month
        Gas               $         per month           Child Care      $           per month
        Transportation $            per month           Child Support   $           per month
        Car               $          per month
        Other             $         per month (describe:


10. Assets:

        Automobile              $ _ _ __ _
                                                        (FMV) -    - - - - -- - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ _ __
                                                        (FMV) - - -- - - -- - -
              )
        Other                   $ _ _ _ __              Describe:_ _ _ __ _ _ _ _ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
