                                                                                                           FILED
                                                                                                     _-ovember4~ 201 6

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                                                                                                         CLAIMS

                                                                                                          Tim~ 2:40 PM

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

BARBARA BOOZE,                                             )    Docket No.: 2016-08-0678
        Employee,                                          )
v.                                                         )
MEMPHIS AREA TRANSIT                                       )    State File Number: 85811-2015
AUTHORITY                                                  )
         Employer,                                         )
And                                                        )
PMA COMPANIES,                                             )   Judge Amber E. Luttrell
         Insurance Carrier.                                )


     EXPEDITED HEARING ORDER DENYING TEMPORARY DISABILITY
                           BENEFITS


        This matter came before the undersigned Workers' Compensation Judge on
October 12, 2016, upon the Request for Expedited Hearing filed by Barbara Booze,
pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus of
this case concerns Ms. Booze's entitlement to temporary disability benefits. The central
legal issue is whether Ms. Booze is likely to establish at a hearing on the merits that she
was entitled to temporary disability benefits between May 3 and September 8, 2016,
when she reached maximum medical improvement (MMI). For the reasons set forth
below, the Court holds Ms. Booze did not come forward with sufficient medical proof, at
this time, to establish entitlement to temporary disability benefits for the requested
period.'

                                               History of Claim

       The following facts were established at the Expedited Hearing. Ms. Booze is a
sixty-year-old resident of Shelby County, Tennessee. She worked as a bus driver for
Memphis Area Transit Authority (MATA) for approximately fifteen years. She suffered
an unfortunate work-related mental injury on September 2, 2015, when she witnessed a
1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

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passenger shoot another passenger on the bus she was operating. Ms. Booze alleged
post-traumatic stress disorder following the incident and received authorized
psychological and psychiatric treatment for the condition. The parties agreed MATA
paid Ms. Booze temporary total disability benefits from September 2, 2015, through May
3, 2016, at the rate of$588.07 per week.

       The limited medical records admitted into evidence indicated Ms. Booze
underwent psychotherapy sessions for a lengthy period with Megan Avery Ph.D., a
psychologist, for symptoms of sadness and anxiety associated with her condition. 2 The
records began with Dr. Avery's note of April 1, 2016, which was Ms. Booze's twelfth
therapy session. (Ex. 5.) 3 On that date, Dr. Avery noted Ms. Booze struggled to complete
her exposure homework and was only able to go to the parking lot once. 4 Dr. Avery
noted,

        We discussed if she is capable and/or willing to complete the necessary
        exercises to RTW. 5 She wants to complete them, but finds it impossible.
        She elected to no longer pursue RTW. She wants to focus on moving
        forward with a different path and to resolve her symptoms without focusing
        on RTW. She still has symptoms that resulted from the work-related
        incident, which require therapy; therefore, treatment continues.

!d.

        On April 7, Dr. Avery noted Ms. Booze's improved mood, which Ms. Booze
attributed to "lifting the burden of attempting to cope with returning to MATA." !d. In
her note, Dr. Avery responded to questions concerning Ms. Booze's ability to work. 6 Dr.
Avery was asked, "Do you think that Ms. Booze would be able to work towards returning
to another type of employment?" She responded, "Yes. Ms. Booze is capable of
working.      She is not able/willing to work towards overcoming the traumatic
stressors/triggers of returning to MATA. She is interested in working in a different
field." !d.


  The parties ~!so admitted three medical records into evidence from Mental Health Resources. Ms. Booze saw a
2

physician (illegible name) on March 8, 2016, who prescribed Zoloft for her condition. (Ex. 6.) On June 21, 2016,
the doctor noted "she is doing much better now that she has decided to retire." Ms. Booze returned on August 16,
2016, and reported feeling very anxious and increased panic attacks following the death of two of her colleagues.
3
  The Court notes MAT A filed an Index of Proposed Exhibits and Documents prior to the Expedited Hearing, which
contained certain medical records from Dr. A very and Mental Health Resources, PLLC. At the hearing, Ms. Booze,
through counsel, stipulated to admissibility of the records filed by MAT A and did not seek to admit any other
medical records into evidence.
4
  According to Ms. Booze, this therapy consisted of Ms. Booze attempting specific activities like sitting in the
parking lot at a MAT A bus station.
5
  The Court understood Dr. Avery's note ofRTW to mean "return to work."
6
  Dr. Avery's record did not indicate who posed the questions to her. The Court assumed the questions were posed
by an employer representative.

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       The next record admitted was June 9, when Dr. Avery and Ms. Booze discussed
her social activities, anxiety symptoms when attempting to drive, and a gradual plan to
help her progress with driving. Ms. Booze continued therapy through September 8, 2016,
when she reached MMI. Dr. Avery noted, "It is my opinion that the patient is at
maximum medical improvement, and that psychological treatment should be continued at
some level, to attempt to prevent deterioration (monthly sessions at this point)." !d.

       Ms. Booze testified that during her treatment, Dr. Avery wanted her to engage in
exposure therapy, which consisted of Ms. Booze attempting specific activities like sitting
in the parking lot at a MATA bus station. She testified that seeing buses following the
work incident caused her anxiety symptoms. She also stated wearing her uniform was a
trigger for her symptoms. Ms. Booze attempted to sit at bus stations, but stated it made
her nauseous. She could not do it. She eventually informed Dr. Avery she was not able
to do exposure therapy as advised.

       Ms. Booze testified that in early 2016, Dr. A very discussed returning her to light
duty work at MATA where she was not in proximity to buses. Ms. Booze began
communicating with Beth Walker, HR Generalist at MATA, about returning to work.
MATA offered Ms. Booze a light duty job in the terminal building as a reservationist.
The parties agreed Ms. Walker told Ms. Booze she did not have to wear her uniform to
this job assignment since it troubled her. Ms. Booze did not attempt the light duty
position because she stated she would have to walk past buses parked at the terminal to
enter and exit the building.

       MATA terminated Ms. Booze's temporary total disability benefits on May 3,
20 16, contending she was unwilling to return to a position with MATA. (Ex. 9.)
Subsequently, Ms. Booze began discussions with Ms. Walker concerning her options
under MATA's retirement plan. Ms. Booze testified that prior to her work injury, she
had not considered early retirement.

       Ms. Walker testified MATA offered Ms. Booze a light duty job as a reservationist
in the Mataplus department inside the terminal building. There are no windows in the
building; therefore, Ms. Booze would not have been exposed to buses while performing
the job. However, Ms. Booze would see buses several yards away in the parking lot
while entering or exiting the building. Ms. Walker stated MATA would have
accommodated Ms. Booze with the reservationist position until her MMI date of
September 8, had she not declined to return to work. If Ms. Booze would have asked,
Ms. Walker testified MATA would have considered any other reasonable
accommodation to facilitate her return to work.

       Ms. Walker further testified that Ms. Booze called her regarding retirement
options in May and expressed that she did not want to return to work at MATA.
However, on cross-examination, she confirmed that Ms. Booze never approached her

                                            3
about retirement or disability through MATA prior to May 3, when Ms. Booze was
notified that her temporary disability benefits were terminated. 7

        Ms. Booze filed a Petition for Benefit Determination (PBD) seeking temporary
disability benefits, but the parties did not resolve the disputed issue through mediation.
The Mediating Specialist filed a Dispute Certification Notice (DCN), and Ms. Booze
filed a Request for Expedited Hearing.

      At the Expedited Hearing, Ms. Booze asserted MATA should have continued her
temporary total disability until her MMI date of September 8. She acknowledged MATA
attempted to accommodate her by offering the reservationist job; however, they could not
accommodate her in a way that avoided exposure to buses. Ms. Booze contended she
wanted to return to work, but simply could not do it because of her injury and ongoing
symptoms.

        MATA countered Ms. Booze was no longer entitled to temporary total disability
upon Dr. Avery opining that she was capable of working. Concerning temporary partial
disability, MATA asserted that it offered Ms. Booze a reservationist position inside the
building where she would not be exposed to buses, but she did not accept the position and
instead elected not to return to work at MAT A. It argued MATA should not be liable for
additional temporary disability benefits based upon Ms. Booze's personal decision not to
return to work for the company.

                              Findings of Fact and Conclusions of Law

       The following legal principles govern this case. Because this case is in a posture
of an Expedited Hearing, Ms. Booze need not prove every element of her claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). Instead, she must come forward with
sufficient evidence from which this Court might determine she is likely to prevail at a
hearing on the merits. !d.; Tenn. Code Ann.§ 50-6-239(d)(1) (2015).



7
   On cross-examination of Ms. Walker, MAT A's counsel objected to Ms. Booze's counsel's line of questioning
concerning the content of email correspondence between Ms. Walker and Dr. Avery in May and June 2016. Mr.
Taylor did not produce the emails to counsel or file them with the MOST Program or the Court. The Court heard
both parties regarding admissibility of the testimony and reserved ruling. Mr. Taylor stated the emails contained
opinions from Dr. Avery regarding Ms. Booze's ability to return to work, but asserted Ms. Walker's testimony
concerning Dr. Avery's medical opinions was not hearsay because he was not offering the testimony for the truth of
the matter asserted. The Court disagrees and holds the offered testimony of Ms. Walker regarding Dr. Avery's
medical opinions is not admissible on hearsay grounds. The Court further excludes Ms. Walker's testimony of Dr.
Avery's opinions expressed in said emails on grounds that Ms. Booze did not file them with the Court in violation of
Rules 0800-02-21-.14( l)(a) and 0800-02-21-.16(6) (2015) of the Tennessee Compilation Rules and Regulations.

                                                         4
        As noted, the sole issue before the Court at this juncture is whether Ms. Booze was
entitled to temporary total or temporary partial disability benefits between May 3 and
September 8, 2016, when she reached MMI.

        To receive temporary total disability benefits, an employee must prove: (1) total
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. James v. Landair Transp., Inc., No. 2015-02-0024, 2015 TN Wrk. Comp.
App. Bd. LEXIS 28, at * 16 (Tenn. Workers' Comp. App. Bd. Aug. 26, 2015). Here, the
Court finds the only medical record admitted into evidence addressing Ms. Booze's
ability to work is Dr. Avery's April 7 record. On that visit, Dr. Avery opined Ms. Booze
was capable of working. There is no medical proof before the Court of Dr. Avery
subsequently taking Ms. Booze off work. Accordingly, Ms. Booze is unlikely to prevail
at a hearing on the merits in establishing entitlement to temporary total disability for the
requested dates.

        The Court now turns to the issue of whether Ms. Booze is entitled to temporary
partial disability benefits. Temporary partial disability benefits, a category of vocational
disability distinct from temporary total disability, are available when the temporary
disability is not total. !d.; see also Tenn. Code Ann. § 50-6-207(1)-(2) (2015).
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." !d. (citing Williams v. Saturn Corp., No. M2004-01215-WC-R3-
CV, 2005 Tenn. LEXIS 1032, at *6 (Tenn. Workers' Comp. Panel Nov. 15, 2005)).
Thus, in circumstances where the treating physician has released the injured worker to
return to work with restrictions prior to maximum medical improvement, and the
employer either (1) cannot return the employee to work within the restrictions; or (2)
cannot provide restricted work for a sufficient number of hours and/or at a rate of pay
equal to or greater than the employee's average weekly wage on the date of injury, the
injured worker may be eligible for temporary partial disability. !d.

       Here, Ms. Booze testified she discussed with Dr. A very returning to work on light
duty, including her anxiety caused by exposure to buses. Ms. Booze further testified she
could not perform a job offered to her in the terminal building because she would still be
exposed to buses while going to and from work. However, there is no medical evidence
before the Court of any light duty restrictions imposed by Dr. Avery to support a claim
for temporary partial disability benefits. In the absence of such proof, the Court cannot
find, at this time, that Ms. Booze is likely to establish entitlement to temporary partial
disability benefits at a hearing on the merits.

IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Booze's claim against Memphis Area Transit Authority and its workers'

                                             5
       compensation carrier for the requested temporary disability benefits is denied at
       this time.

   2. This matter is set for an Initial (Scheduling) Hearing on December 19, 2016,
      at 10:00 a.m. Central Time.
   3.
      ENTERED this the 4th day of



                                 Judge Amber E. Luttre I
                                 Court of Workers' Compensation Claims



Initial (Scheduling) Hearing:

       An Initial (Scheduling) Hearing has been set with Judge Amber Luttrell, Court
of Workers' Compensation Claims. You must call toll-free at 855-543-5039 to
participate in the 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.


           .
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

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   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
   any, with the Court Clerk within five business days ofthe 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.




                                         7
                                               APPENDIX

Exhibits:
   1. Affidavit of Barbara Booze
   2. First Report of Work Injury
   3. Wage Statement
   4. Bus Operator Job Description
   5. Dr. Avery's medical records
   6. Mental Health Resources medical records
   7. Reservationist Job Description
   8. Email from Dr. Avery dated May 6 concerning retirement
   9. May 3, 2016letter terminating TTD benefits


Technical record: 8
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Notice of Expedited Hearing




8
   The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.




                                                      8
                            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 4th day of
November, 2016.


               Name                     Via                   Service sent to:
                                       Email
Chris Taylor, Esq.,                     X        ctaylor@tayJortoon.com
Attorney for Employee                            srevnolds@tavlortoon.com
Hope Calabro, Esq.                       X       hoQe@ho Ueyelder .com
Alex Elder, Esq.,                                alex@bolleyelder.com
Attorneys for Employer



                                                   rum, Clerk of Court
                                                   Workers' Compensation Claims




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