                                                                               F~ED

                                                                              May 6, 2016

                                                                            1N COURI OF
                                                                        WORKIRS' CO!\IPINSATION
                                                                               CLAIMS

                                                                              Time: 11.:14 Al\1

            TENNESSEE BUREAU OF WORKERS' COMPENSATION
              COURT OF WORKERS' COMPENSATION CLAIMS
                           AT JACKSON


ROBERT PARRISH,                             )   Docket No.: 2015-07-0467
         Employee,                          )
                                            )
v.                                          )
                                            )
DIGIT DIRT WORX,                            )   State File Number: 54013-2015
          Employer,                         )
                                            )
And                                         )
                                            )
RIVERPORT INSURANCE CO.,                    )   Judge Allen Phillips
        Insurance Carrier.                  )


           EXPEDITED HEARING ORDER DENYING ADDITIONAL
                  TEMPORARY DISABILITY BENEFITS
                          (FILE REVIEW)


       This matter came before the Court upon a Request for Expedited Hearing (REH)
filed by the employee, Robert Parrish, pursuant to Tennessee Code Annotated section 50-
6-239 (2015). Mr. Parrish requested the Court decide his interlocutory claim for
additional temporary disability benefits based on a review of the file without an
evidentiary hearing. Digit Dirt Worx, the employer, filed a response asking that the
hearing request be dismissed because Mr. Parrish filed it more than sixty days after the
filing of the Dispute Certification Notice (DCN) or, in the alternative, that the Court
"issue a ruling denying Employee's request for benefits." Digit did not request an
evidentiary hearing.

        The Court found that no additional information was needed to determine whether
the employee is likely to prevail at a hearing on the merits of the claim. Accordingly,
pursuant to Tennessee Compilation Rules and Regulations Rule 0800-02-21-.14(l)(c)
(20 15), the Court decided the request for benefits based on a review of the written
materials and without the benefit of an evidentiary hearing. 1

       Mr. Parrish contends he is entitled to additional benefits because the employer
incorrectly calculated his weekly compensation rate; Digit maintains the rate is correct.
Accordingly, the central legal issue is whether Digit paid temporary disability benefits to
Mr. Parrish at the correct weekly compensation rate. For the following reasons, the Court
finds Mr. Parri h has not come forward with sufficient evidence at this time to show Digit
incorrectly calculated his weekly compensation rate. 2

                                               History of Claim

       On July 10, 2015, Mr. Parrish sustained an injury while working for Digit. (T.R.
1.) Digit paid Mr. Parrish temporary disability benefits and, based upon Mr. Parrish's
argument herein, the Court assumes Digit paid temporary disability benefits for the entire
period of Mr. Parrish's disability. However, in a Petition for Benefit Determination
(PBD) filed on December 28, 2015, Mr. Parrish contests the rate at which he was paid by
framing his dispute as: "I only worked 20 weeks. Berkley has me working 23 weeks. Just
want to be paid fair." On March 31, 2016, Mr. Parrish filed an REH and attached an
affidavit in which he alleged, verbatim:

         To whom it may concern, log sheet records show I was off work from
         5/23/15 at 6:30 p.m. to 10 AM on 5/27115. Earnings that week were
         841.85$.

         Hotel receipts [sic] show I didn't work from 4/4115 until 4/12/15. Records
         show that I made 1,020.39 on the week 4/4/15 thru 4/10/15, while I was in
         hotel.

         Rote [sic] receipt & log sheets show that I was off work from 7-1-15 at
         1:00 pm until 7-6-15 at 2:45 pm. These dates are from my last two weeks. of
         employment. It all doesn't work out.

       Along with the affidavit, Mr. Parrish included a wage statement upon which he
wrote the word "Hotel" and beside that wrote the following dates, collectively: February
6-8; April4-13 and July 3-5, 2015. Mr. Parrish also attached hotel receipts for April4, 5,
7, 9-12 and July 3, 2015. He attached driver logs from May 23, May 24-26, May 27 and

1
  In making a file review determination, the Court makes no decision as to the admissibility of the information
submitted in the case file absent an objection from a party. Here, the employer filed a response to the expedited
hearing request regarding the merits of the case, did not request an evidentiary hearing, and did not object to any of
the information submitted by the employee. In fact, the employer submitted additional documentary evidence of Mr.
Parrish's actual payroll records and an affidavit of its office manager.
2
  The Court has attached, as an Appendix to this Order, a complete listing of both the technical record and the
exhibits it considered.

                                                          2
July 1-7, 2015. Mr. Parrish submitted no argument in support of his position.

        Digit argues Mr. Parrish filed the REH more than sixty days after the filing of the
DCN on January 21, 2016; namely, the REH was filed on March 31, 2016, "a full ten
(10) days past the deadline to do so." Employer's Response to Request for Expedited
Hearing at 2. Accordingly, Digit asks that the REH be "dismissed outright as untimely,
or in the alternative, that it should be stayed and a Show Cause Hearing be conducted, at
which point the matter should be dismissed." !d.

       In the alternative, Digit argues it correctly calculated the compensation rate. It
contends the wage statement reveals Mr. Parrish worked a period of twenty-three weeks
and five days "rounding down for the Employee's benefit." !d. at 3. The wage statement
indicates gross wages of$16,719.20 which, when divided by twenty-three weeks and five
days (23. 71 ), yields an average weekly wage of $705.15 and a compensation rate of
$470.11. However, Digit, through its carrier, corresponded with Mr. Parrish on
September 30, 2015, to the effect it divided the gross wages by only twenty-three weeks
and the deduction of the five days resulted in an average weekly wage of $726.92 and a
corresponding compensation rate of $484.64.

       Digit contends Mr. Parrish "has put forth no legal basis to have the denominator of
weeks reduced to any degree." Employer's Response at 3. In effect, the number ofweeks
included in the calculations should remain twenty-three and not be adjusted to twenty.
Citing Russell v. Genesco, 651 S.W.2d 206, 210 (Tenn. 1983), Digit argues "an injured
employee may deduct from his computation of the average weekly wage only those days
missed as a result of 'sickness, disability, or other fortuitous circumstance."' Mr. Parrish
did not argue any of these circumstances are applicable to his case. In support of its
position, Digit submitted the affidavit of its office manager, Ms. Cindy Garside, who
stated Mr. Parrish never requested "time off due to illness or injury since his hire with the
Employer in January 2015." Employer's Response at 3.

                        Findings of Fact and Conclusions of Law

                                     Timeliness offiling

        As a preliminary matter, the Court must address Digit's argument that Mr. Parrish
failed to file his REH within sixty days of the filing of the DCN. The pertinent regulation,
Tennessee Compilation Rules and Regulations Rule 0800-02-21-.12(1) (2014), provides
as follows:

       Immediately after a dispute certification notice has been filed with the
       clerk, either party seeking further resolution of any disputed issues shall file
       a request for hearing with the clerk.... If no request for hearing is filed
       within sixty (60) calendar days after the date of issuance of the dispute

                                              3
       certification notice, the clerk shall docket the case and place the case on a
       separate dismissal calendar for a show cause hearing. The clerk shall send
       notice of the hearing to the parties, via regular or electronic mail, indicating
       the claim number, the time of the hearing and the judge assigned to the
       case. Either party may appear to show cause as to why the case should not
       be dismissed.

(Emphasis added).

        In Smith v. The Newman Grp., LLC, No. 2015-08-0075, 2015 TN Wrk. Comp.
App. Bd. LEXIS 30 (Tenn. Workers' Comp. App. Bd. Sept. 21, 2015), our Appeals
Board noted the goal of efficiency and timeliness as required by the 2013 Reform Act. !d.
at *9. But the Board also noted dismissals based on procedural grounds, such as failure to
prosecute and default judgments, run counter to the judicial system's general objective of
disposing of cases on the merits. !d. at *10; see, e.g., Childress v. Bennett, 816 S.W.2d
314, 316 (Tenn. 1991) (observing that "it is the general rule that courts are reluctant to
give effect to rules of procedure . . . which prevent a litigant from having a claim
adjudicated upon its merits"). The Appeals Board ultimately affirmed the refusal to
dismiss the claim at a show cause hearing, finding instead that the "[e]mployee has
submitted information showing that he intends to prosecute his claim and has shown
sufficient cause that his case should not be dismissed." !d. at * 11. The Board noted the
Trial Court has discretion in interpreting sufficient cause. !d.

       In Johnson v. Wal-Mart Associates, Inc., No. 2014-06-0069, 2015 TN Wrk.
Comp. App. Bd. LEXIS 18 (Tenn. Workers' Comp. App. Bd. July 2, 2015), the
employee did not file a Request for Hearing within sixty days of the issuance of the
DCN. Once the employee filed a REH, the employer filed a motion to dismiss. !d. at *9.
On appeal, the Board affirmed the Trial Court's denial of the motion to dismiss, noting
that, "a show cause hearing is held so that the trial court can determine if the parties
intend to take further action in the case." !d. at * 10.

       In this case, the Court finds the case was not placed upon the Court's show cause
docket as of the date Mr. Parrish filed the REH. Hence, the Court had not conducted a
show cause hearing. However, the Court finds Mr. Parrish indicated an intention to
prosecute his claim by filing the REH. Given the relatively short period (ten days)
between the technical deadline for filing and the actual filing, the Court finds sufficient
cause to excuse Mr. Parrish from the late filing of the REH. However, the Court's
leniency does not extend to its finding hereafter that Mr. Parrish has failed to come
forward with sufficient evidence that he is likely to prevail at a hearing on the merits
regarding his argument that Digit incorrectly calculated his compensation rate.




                                             4
                                     Calculation of Compensation Rate

        Because this case is in a posture of an Expedited Hearing, Mr. Parrish must come
forward with sufficient evidence from which this court might determine he is likely to
prevail at a hearing on the merits. McCord v. Advantage Human Resourcing, No. 2014-
06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8 (Tenn. Workers' Comp. App.
Bd. Mar. 27, 2015); Tenn. Code Ann. § 50-6-239(d)(l)(2015). In analyzing whether he
has met his burden, the Court will not remedially or liberally construe the law in his
favor, but instead shall construe the law fairly, impartially, and in accordance with basic
principles of statutory construction favoring neither he nor Digit. See Tenn. Code Ann. §
50-6-116 (2015). Though Mr. Parrish has elected to represent himself, as is his right, he
still "must comply with the same standards to which parties with legal counsel must
adhere." Thurmond v. Yates Services, No. 2015-06-0240, 2015 TN Wrk. Comp. App. Bd.
LEXIS 34, at *6 (Tenn. Workers' Comp. App. Bd. Sept. 8, 2015).

        In this case, Mr. Parrish questions the number of weeks he actually worked prior
to his injury. Specifically, he argues he worked only twenty weeks rather than the twenty-
three weeks calculated by Digit. However, when reviewing the dates Mr. Parrish claims
he did not work, the Court calculates a total of sixteen days, a period of only two weeks
and two days. 3 When deducting this period from Digit's calculation of twenty-three
weeks, the difference is still greater than twenty weeks; twenty weeks and five days to be
exact. Further, Mr. Parrish neither details why he believes twenty is the correct number of
weeks nor does he provide a calculation of what he believes to be the proper
compensation rate. Based on its own calculations, the Court finds Mr. Parrish's weekly
compensation rate would be $557.33 if based upon a twenty week period. ($16,719.20/20
= $835.96 X 66 2/3%).


        However, the Court finds the wage statement reveals Mr. Parrish worked at Digit
for a period of twenty-three weeks and five days prior to his date of injury. When
utilizing a period of twenty-three weeks and five days, the Court calculates a weekly
compensation rate of $470.13 ($16, 719.20/23.71 x 66 2/3%). By letter of September 30,
2015, Digit's carrier advised Mr. Parrish it utilized a period of only 23 weeks which
yields a compensation rate of $484.64 per week. ($16,719.20/23 x 66 2/3%). Thus, the
rate utilized by Digit is greater than the rate actually reflected on the wage statement and
works to the advantage of Mr. Parrish. Accordingly, from a purely mathematical
standpoint, the Court cannot find Mr. Parrish's position supported by the evidence.

      However, regardless of mathematics, the Court finds Tennessee law fails to
support Mr. Parrish's argument. Our Workers' Compensation Law defines "average

3
  Based upon statements in his affidavit, the Court considers the dates of April4, 5, 6, 7, 8, 9, 10, 11, and 12; May
24, 25 and 26; and July 2, 3, 4, and 5 as the dates Mr. Parrish contends he did not work.

                                                           5
weekly wage" as follows:

         (3)(A) "Average weekly wages" means the earnings of the injured
         employee in the employment in which the injured employee was working at
         the time of the injury during the period of fifty-two (52) weeks immediately
         preceding the date of the injury divided by fifty-two (52); but if the injured
         employee lost more than seven (7) days during the period when the injured
         employee did not work, although not in the same week, then the earnings
         for the remainder of the fifty-two (52) weeks shall be divided by the
         number of weeks remaining after the time so lost has been deducted;

         (B) Where the employment prior to the injury extended over a period of
         less than fifty-two (52) weeks, the method of dividing the earnings during
         that period by the number of weeks and parts of weeks during which the
         employee earned wages shall be followed; provided, that results just and
         fair to both parties will be obtained[.]

Tenn. Code Ann.§ 50-6-102(3)(A)-(B) (2015).

       The only wage statement submitted establishes Mr. Parrish's "rate per day" was
"23% of what truck makes." Thus, Mr. Parrish did not earn, what our Supreme Court
described in Russell as, "a given sum for a normal week." Russell, 651 S.W.2d at 209. In
such instances, an employee's "actual wages should be used in computing the
[employee's] average weekly wages." From these actual wages, the parties shall deduct
lost days to the "extent sickness, disability, or some other fortuitous circumstance caused
the loss" but, "there shall be no deductions for lost days caused by circumstances incident
to [the] employment." !d. Examples of "fortuitous circumstances" are the closing of a
plant for repairs, the loss of work due to weather, or a reduction of work because of a
shortage of materials or lack of orders. Cantrell v. Carrier Corp., 193 S.W.3d 467, 472
(Tenn. 2006). "On the other hand, an employee whose work hours vary from week to
week will not be given the benefit of the deduction of days not worked if the employer
simply had less work for the employee." !d. 4

       In this case, Mr. Parrish argues for the exclusion of certain days based upon
driving logs and evidence he stayed in hotel rooms on several dates. Three of the driving
logs reveal he did not drive on May 24 to May 26, 2015. However, in that week, he

4
  The Court is aware our Supreme Court stated in Cantrell stated that its "holding is consistent with the purposes of
the Tennessee Workers' Compensation Law," referring to the former equitable construction required in pre-July 1,
2014 cases. See Cantrell, 193 S.W.3d at 472. However, this statement follows the Court's precise holding that the
weeks where short term disability benefits are paid by an employer should be excluded from the calculation of
average weekly wages. The Court finds no reason to abandon Cantrell's logic of not deducting "short" weeks when
calculating the average wages of variable earning employees even after abrogation of the liberal presumption. The
current definition of average weekly wage as requiring a result "fair and just to both parties" is entirely consistent
with the current requirement of an impartial analysis.

                                                          6
earned $841.85, an amount greater than his average weekly wage even under a twenty-
week division. Other logs indicate he spent three and one-quarter hours driving on July 1
but then . was "off' from July 2 through July 5. Nevertheless, he earned wages of
$1,409.70 in the week of June 27 through July 3 and wages of $444.16 in the week of
July 4 through July 10. These logs, juxtaposed against the earnings history, confirm the
variable nature of his weekly wages. Likewise, this Court finds Mr. Parrish's frequent
hotel lodging to be what the Russell court called "a normal and recognized incident" of
his regular employment as a truck driver. Russell, 651 S. W.2d at 209. These indicia of
hotel registration do not lend support to an argument that the weeks including hotel stays
should be excluded from the calculation of his weekly wages. Instead, they are but
confirmation of the variable nature of his employment hours.

       Considering the evidence at this interlocutory stage in its totality, the Court finds
no reason to deviate from the statutorily consistent method of calculation followed by
Digit.

   IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Parrish's claim for additional temporary disability benefits is denied at this
      time.

   2. This matter is set for an Initial (Status) Hearing on June 6, 2016, at 9:00 a.m.
      Central time.

      ENTERED this the 6th day ofMay, 2016.



                                          Judge Allen Phillip
                                          Court of Workers' Co



                                Initial (Status) Hearing:

      An Initial (Status) Hearing has been set with Judge Allen Phillips, Court of
Workers' Compensation Claims. You must call 731-422-5263 or toll-free at 855-543-
5038 to participate in tbe Initial Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.


                                             7
Right to Appeal:

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

   2. File the completed form with the Court Clerk within seven business days of the
      date the Workers' Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited 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
      of Indigency, 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
      Indigency in accordance with this section shall result in dismissal of the
      appeal.

   5. The parties, having the responsibility of ensuring a complete record on appeal,
      may request, from the Court Clerk, the audio recording of the hearing for the
      purpose of having a transcript prepared by a licensed court reporter and filing it
      with the Court Clerk within ten calendar days of the filing of the Expedited
      Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
      the evidence within ten calendar days of the filing of the Expedited 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.

   6. If the appellant elects to file a position statement in support of the interlocutory
      appeal, the appellant shall file such position statement with the Court Clerk within
      five business days of the expiration of the time to file a transcript or statement of
      the evidence, specifying the issues presented for review and including any
      argument in support thereof. A party opposing the appeal shall file a response, if

                                            8
any, with the Court Clerk within five business days of the filing of the appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order 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.




                                     9
                                       APPENDIX

The Court designates the following documents as the Technical Record:

   1. Petition for Benefit Determination, filed on December 28, 2015;
   2. Dispute Certification Notice, filed on January 21, 2016;
   3. Request for Expedited Hearing, filed on March 31, 2016;
   4.  "Order Extending Time For Employer To Respond To Expedited Hearing
      Request," April 8, 2016; and
   5. "Employer's Response To Request For Expedited Hearing," April16, 2016.

The Court considered the following documents in reaching its decision. It designates
them as Exhibits for sake of reference:

   1.   Affidavit of Robert Parrish;
   2.   Affidavit of Cindy Garside;
   3.   Wage Statement (including notations made by Mr. Parrish);
   4.   Payroll Records of Mr. Parrish;
   5.   Hotel receipts submitted by Mr. Parrish;
   6.   Driver logs submitted by Mr. Parrish;
   7.   Bank statements ofMr. Parrish; and,
   8.   Correspondence from Digit's carrier to Mr. Parrish regarding compensation rate.

                            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 6th day of
May, 2016.


Name                        Certified Via        Via     Service sent to:
                            Mail      Fax        Email
Robert Parrish,                                          robertj 777 @icloud.com
Self-represented                                   X
A. Allen Grant, Esq.
Employer's Counsel                                 X     agrant@morganakins.com



                                          enny S  m, Clerk of Court
                                         Court o  orkers' Compensation Claims
                                         WC.CourtClerk@tn.gov

                                            10
