                                                                                      FILED
                                                                                    Jul 27, 2018
                                                                                    02:30 PM(ET)
                                                                                 TENNESSEE COURT OF
                                                                                WORKERS' COMPENSATION
                                                                                       CLAIMS




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

LEONARD MORRISON,                           )       Docket No.: 2018-02-0048
    Employee,                               )
v.                                          )
                                            )
WALMART,                                    )       State File No.: 73816-2017
    Employer,                               )
And                                         )
                                            )
NEW HAMPSHIRE INS. CO.,                     )       Judge Brian K. Addington
    Insurance Carrier.                      )
                                            )



                     EXPEDITED HEARING ORDER DENYING
                      TEMPORARY DISABILITY BENEFITS


        The undersigned conducted an Expedited Hearing on July 19,2018. The central legal
issue is whether Leonard Morrison is likely to succeed at a hearing on the merits in proving
entitlement to the requested temporary disability benefits. Based on the evidence, the Court
finds that Mr. Morrison failed to present sufficient evidence that he is likely to succeed at a
hearing on the merits in proving entitlement to temporary disability benefits.

                                       Claim History

        Mr. Morrison worked as a loader for Walmart. He suffered a back injury when he
lifted a safe on September 2, 2017. Greeneville Urgent Care and Dr. Nicholas Grimaldi
provided treatment and placed him on light-duty restrictions at various times. Greeneville
Urgent Care first restricted Mr. Morrison's work to left-hand work only from September 24
until November 16.

        Walmart offered, and Mr. Morrison accepted, temporary alternative duty within his
restrictions. Mr. Morrison testified Walmart violated his work restrictions when it caused

                                                1
him to use his right arm to sweep and it did not provide sufficient work hours. By affidavits,
Mr. Morrison's supervisors explained that he unilaterally violated his work restrictions,
repeatedly asked to go home early, and took unexcused days without calling to report his
absences. Mr. Morrison explained he needed time off because he experienced serious pain,
which his doctors failed to address.

       Due to his pain, Mr. Morrison requested a leave of absence on December 18, 2017.
He testified he went to the emergency room, and a physician took him off work for thirteen
days, but Mr. Morrison did not produce those records. Walmart denied the leave of absence
because it did not have proof a doctor took him off work. Mr. Morrison acknowledged he
did not call in to work from late December until he returned to work on January 14, 2018,
because he thought he was covered by the leave of absence. However, Walmart's policy
requires an employee to call in when a leave of absence is pending, so it terminated him that
day.

        Dr. Grimaldi initially returned Mr. Morrison to regular duty work on January 8 1 but
restricted his work on April 19 to minimal work with his right arm. He released Mr.
Morrison without restrictions on May 21.

       Mr. Morrison requested all temporary disability benefits for which he was eligible,
including the "thirteen-day period" when an emergency room doctor took him off work and
the period from his termination until he reached MMI. He argued he was due these benefits
because Walmart did not provide sufficient work hours, violated his work restrictions, and he
could not work full-time due to pain from his accident.

       Walmart denied that it required Mr. Morrison to violate his restrictions. It argued that
he was not entitled to any temporary total benefits because a doctor never took him off work
and he was not entitled to temporary partial benefits because he self-limited his hours.

                               Findings of Fact and Conclusions of Law

      To prevail at an expedited hearing, Mr. Morrison must provide sufficient evidence
from which this Court can determine that he is likely to prevail at a hearing on the merits.
See Tenn. Code Ann.§ 50-6-239(d)(l).

        Mr. Morrison requested temporary disability benefits. There are two kinds: temporary
total (TTD) and temporary partial (TPD).

      Concerning TTD, an injured worker is entitled to those benefits when he is restricted
from work due to the work injury. To receive TTD, an employee must prove (1) total

1
    Dr. Grimaldi's records start on this day.
                                                 2
disability from working as the result of a compensable injury; (2) a causal connection
between the injury and the inability to work; and (3) the duration of the period of disability.
Shepherd v. Haren Constr. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 15, at* 13 (Mar.
30, 2016).

        Mr. Morrison did not prove he was totally disabled from work. Instead of providing a
work excuse, he testified he could not work due to pain. Thus, he failed to provide an expert
medical opinion that causally related his absences to his work injury. Further, other than
stating he missed "thirteen days" when his doctor took him off work, he did not provide the
specific dates in question in order to prove the period of disability. The Court holds Mr.
Morrison is unlikely to succeed at a hearing on the merits in proving entitlement to TTD.

        Concerning TPD, an injured worker is entitled to those benefits when he cannot earn
his average weekly wage due to work restrictions. 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." Frye v. Vincent Printing Co.,
2016 TN Wrk. Comp. App. Bd. LEXIS 34, at *15-16 (Aug. 2, 2016.)

       Even though an employee has a work-related injury for which temporary benefits are
payable, an employer may still enforce workplace rules. Jones v. Crencor Leasing and Sales,
2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *8 (Dec. 11, 20 15). Thus, a termination due to
a violation of workplace rules may relieve an employer of its obligation to provide TPD
benefits, provided the termination was related to the workplace violation. !d.

        Although Mr. Morrison presented medical proof that his doctors restricted his work
activities, the evidence indicates that Mr. Morrison self-limited his working hours and took
himself off work. This led to Walmart's decision to terminate him. Mr. Morrison admitted
fault when he failed to call in while Walmart determined his leave of absence, even though
company policy required him to call. Not one, but several supervisors' affidavits indicated
that Mr. Morrison simply chose not to work when he could work with restrictions, and his
failure to call to report his absences caused his termination. Under these circumstances, the
court holds at this time that Mr. Morrison is not likely to succeed at a hearing on the merits in
proving entitlement to temporary partial disability benefits.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Morrison's request for temporary disability benefits is denied at this time.

   2. This matter is set for a Scheduling Hearing on August 29, 2018, at 10:00 a.m. Eastern
      Time. You must call toll-free at 855-543-5044 to participate in the Hearing. Failure
      to call may result in a determination of the issues without your participation.


                                               3
  ENTERED JULY 27,2018.




                                    BRIAN K. ADDINGTON
                                    Workers' Compensation Judge

                                         APPENDIX

 Technical Record:
    1. PBD and attachments
    2. Dispute Certification Notice
    3. Request for Expedited Hearing
    4. Order Setting Expedited Hearing
    5. Motion to Compel Discovery
    6. Order Granting Motion to Compel
    7. Employer's Response to Expedited Hearing
    8. Brief in Response to Expedited Hearing

 Exhibits:
    1. Mr. Morrison's affidavit.
    2. Wage Statement
    3. First Report of Injury
    4. Employer's Collective Exhibit

                             CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Order was sent to the following
 recipients by the following methods of service on this the 2ih day of July, 2018.

Name                    Certified Mail           Via       Sent to:
                                                 Email
Leonard Morrison               X                           110 East Rollins Street
                                                           Greeneville, TN 37743
Celeste Watson, Esq.                               X       celeste@cmwatsonlaw .com




                                           WC.CourtClerk@tn.gov

                                             4
                           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
