                                                                               FILED
                                                                             Oct 10, 2019
                                                                            01:03 PM(CT)
                                                                          TENNESSEE COURT OF
                                                                         WORKERS' COMPENSATION
                                                                                CLAIMS




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

JON WOODS,                              ) Docket No. 2018-05-0400
        Employee,                       )
v.                                      )
                                        )
TRAEGER PELLET GRILLS,                  ) State File No. 86530-2017
INC.,                                   )
         Employer,                      )
And                                     )
                                        )
ADVANTAGE WORKERS’                      ) Judge Dale Tipps
COMPENSATION INS. CO.,                  )
        Carrier.


    EXPEDITED HEARING ORDER GRANTING REQUESTED BENEFITS


       This case came before the Court on October 3, 2019, for an Expedited Hearing on
whether Mr. Woods is entitled to payment of additional temporary disability benefits in
spite of his termination for cause. To receive these benefits, Mr. Woods must show that
he is likely to establish at a hearing on the merits that he is entitled to temporary
disability benefits for the period of January 13, 2018, to October 25, 2018. For the
reasons below, the Court holds Mr. Woods met this burden and is entitled to the
requested benefits.

                                  History of Claim

                                  Medical Treatment

       While working for Traeger near Seattle, Washington, Mr. Woods injured his back
while lifting a grill on November 3, 2017. He received authorized medical treatment.
After Mr. Woods returned to his home in Lawrenceburg, Tennessee, Traeger authorized
additional treatment at Middle Tennessee Medical.

      In December, Mr. Woods moved to San Diego, and Traeger provided a panel of

                                          1
physicians there. He continued physical therapy. However, before Mr. Woods could
schedule an appointment with his panel physician, his wife received a new job
assignment, and they moved to Los Angeles. Traeger provided another panel, and Mr.
Woods selected Adventist Health.

       Before his first appointment at Adventist, Mr. Woods went to Tyler Physical
Therapy on January 24, 2018. He reported he wanted to return to work and felt capable
of doing so.

        Mr. Woods had only one appointment at Adventist. On January 31, FNP Carol
Ow diagnosed lumbar strain and sciatica, and she referred him to an orthopedic specialist.
She also instructed Mr. Woods to continue his physical therapy and assigned modified
restrictions of no lifting, pushing, or pulling over five pounds and no excessive standing.

                                         Termination

        A few days after the injury, Kortni Hobson, a Human Resource Specialist at
Traeger, emailed an incident report and Family Medical Leave Act (FMLA) documents
to Mr. Woods. She asked him to return the completed FMLA certification by November
24 because Traeger was treating his “time off since November 3 as FMLA.” Ms. Hobson
explained that if she did not receive the paperwork, “your leave may be denied and your
absences may be subject to [Traeger’s] time-off policies and procedures.” Over the next
two months, Ms. Hobson and Ashley West, the Human Resource Manager, repeatedly
tried to get Mr. Woods to complete and return the FMLA documents.

        Mr. Woods testified that he tried to comply with their requests, but none of his
providers at Middle Tennessee Medical would complete the medical portion of the
FMLA certification. He hoped to get his San Diego doctor to complete it, but was unable
to get an appointment before he moved to Los Angeles.

       The day before Mr. Woods’s first appointment with Adventist, Traeger terminated
his employment on January 30. Ms. Hobson stated in her affidavit that he was terminated
under Traeger’s attendance policies. Ms. Hobson and Ms. West confirmed in their
affidavits that Traeger terminated Mr. Woods for failing to provide a physician’s
statement after missing more than three consecutive days of work.

       The parties stipulated to a weekly compensation rate of $742.79.

       Mr. Woods requested that the Court order Traeger to pay temporary disability
benefits from January 13, 2018, to October 25, 2018.1

1
 Although Mr. Woods was not terminated until January 30, Traeger stopped his temporary disability
benefits before that date. From a Notice of Controversy filed on January 16, it appears Traeger
                                               2
       Traeger argued that Mr. Woods is not entitled to the requested benefits. It first
noted that he was not taken completely off work during this period. Next, Traeger
pointed out that his temporary restrictions were removed during his January 24 physical
therapy appointment, and Mr. Woods was terminated for violating company attendance
policies a few days later. Although FNP Ow assigned temporary restrictions the next
day, Traeger had no duty to offer restricted work or pay temporary partial disability
benefits because it had already fired Mr. Woods for cause.

                            Findings of Fact and Conclusions of Law

      Mr. Woods must provide sufficient evidence from which this Court might
determine he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2018); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

                                 Temporary Total Disability

       To receive temporary total disability benefits, Mr. Woods must establish that (1)
he became disabled from working due to a compensable injury; (2) a causal connection
between his injury and his inability to work; and (3) his period of disability. Jones v.
Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11,
2015). None of the medical records showed that Mr. Woods’s physicians took him
completely off work. Without evidence that he was “disabled from working,” Mr.
Woods has not proven he is likely to succeed on a claim for temporary total disability
benefits.

                                Temporary Partial Disability

       Temporary partial disability (TPD) benefits are available when the temporary
disability is not total. Specifically, TPD “refers to the time, if any, during which the
injured employee is able to resume some gainful employment but has not reached
maximum recovery.” Id. An employee may receive TPD benefits when the treating
physician has him to return to work with restrictions but the employer either (1) cannot
return the employee to work within those restrictions or (2) cannot provide restricted
work that pays the employee’s average weekly wage on the date of injury. Id. at *8.
TPD benefits are based on sixty-six and two thirds percent of the difference between an
employee’s average weekly wage and the wage he is able to earn in his partially disabled
condition. Tenn. Code Ann. § 50-6-207(2)(A).



terminated these benefits because it contended Mr. Woods had missed a January 16 physical therapy
appointment. Mr. Woods denied knowing he had an appointment scheduled for that day.
                                               3
        No one disputes that Mr. Woods had medical restrictions when Traeger first
stopped his TPD. Traeger filed a Notice of Controversy stating that Mr. Woods failed to
attend a physical therapy appointment on January 16, 2018. However, Mr. Woods
testified that he was unaware of the appointment, and the adjuster had emailed him a few
days earlier saying that his physical therapy was complete. The Court finds Mr. Woods’s
unrebutted explanation credible. Mr. Woods is therefore entitled to TPD benefits from
January 13 through at least January 29, the day before his termination.2

       Mr. Woods’s entitlement to TPD after January 29 requires additional analysis. An
employee’s termination for misconduct may relieve an employer of the obligation to pay
temporary disability benefits if the reason for termination qualifies as misconduct under
ordinary workplace rules. Barrett v. Lithko Contracting, Inc., 2016 TN Wrk. Comp.
App. Bd. LEXIS 70, at *9 (June 17, 2016). “When confronted with such a case, courts
must consider the employer’s need to enforce workplace rules and the reasonableness of
the contested rules.” Id.

       In this case, Mr. Woods was terminated for violating Traeger’s attendance policy.
Specifically, Traeger contended that because he failed to return the FMLA certification, it
was unable to approve his leave, which made him subject to its time-off rules. Under
those rules, Mr. Woods’s failure to provide a physician’s statement was grounds for
termination.

        Traeger’s arguments are unpersuasive. Ms. Hobson noted in her email to Mr.
Woods that Traeger chose to treat his time off “as FMLA.” The Court does not question
the right of an employer to treat a compensable work injury as an FMLA situation.
However, Traeger is not required to place injured workers on FMLA leave – it could
simply acknowledge that work injuries sometimes require employee to miss work.
Moreover, the effect of Traeger’s choice was to impose requirements on Mr. Woods that
exceed the requirements of the Workers’ Compensation Law. In other words, Tennessee
law does not require an employee to complete and return FMLA documentation to
receive temporary disability benefits. Traeger’s approach would allow employers to limit
their duty to pay temporary disability benefits by imposing additional requirements on its
employees and then firing them when they fail to meet those requirements. The Court
therefore finds that this application of the attendance rules is unreasonable under these
facts, and Traeger’s need to enforce the rule is outweighed by its statutory duty to provide
TPD benefits.

        Further, Traeger’s approach seems disingenuous. Mr. Woods reported a work
2
  Traeger argued that Mr. Woods’s restrictions were lifted on January 24. This is incorrect. Mr. Woods
acknowledged that he asked the physical therapist to release him to work because he was concerned about
losing his job. However, a review of the Tyler Physical Therapy records does not indicate any change in
his restrictions. Further, even if they did, assigning restrictions is the province of a physician, not a
physical therapist. Bolton v. CNA Ins. Co., 821 S.W.2d 932, 938 (Tenn. 1991)).
                                                   4
injury, and Traeger immediately accepted the claim and began providing medical
benefits. From the start, it had a legal right to obtain every medical record or physician’s
note regarding Mr. Woods’s treatment for the injury, as well as a statutory method for
gathering those records. See Tenn. Code Ann. § 50-6-204(a)(2)(A). If it needed
additional information as to Mr. Woods’s restrictions or ability to return to work, it could
have contacted the medical providers. With that information, Traeger could have offered
him light duty within his restrictions. Traeger simply chose not to do any of this, but
instead asked Mr. Woods to provide documentation unrelated to workers’ compensation
law and then fired him for nonattendance while he was under medical restrictions.

        The Court recognizes that “even though an employee has a work-related injury for
which temporary benefits are payable, the employer is entitled to enforce workplace
rules.” Barrett, at *9. Traeger had a right to treat this injury as an FMLA matter as long
as it also complied with the Workers’ Compensation Law. That right does not allow it to
terminate Mr. Woods for attendance violations based on an incomplete FMLA
certification and then use that termination to avoid its duty to pay TPD benefits.

        Mr. Woods testified that he did not work during the period in question, and
Traeger introduced no evidence that it ever offered light duty. Therefore, the Court holds
he is likely to prevail at a hearing on the merits that he is entitled to the requested TPD
benefits.

IT IS, THEREFORE, ORDERED as follows:

   1. Traeger shall pay Mr. Woods temporary partial disability benefits for the period
      January 13, 2018, to October 25, 2018, at the stipulated compensation rate of
      $742.79 per week or $30,348.28.

   2. This case is set for a Scheduling Hearing on January 8, 2020, at 9:00 a.m. You
      must call toll-free at 855-874-0473 to participate. Failure to call might result in a
      determination of the issues without your further participation. All conferences are
      set using Central Time.

       ENTERED October 10, 2019.



                                   _____________________________________
                                   Judge Dale Tipps
                                   Court of Workers’ Compensation Claims




                                             5
                                          APPENDIX

Exhibits:
   1. Affidavit of Jon Woods
   2. January 31, 2018 Adventist Health record
   3. Affidavit of Ashley West
   4. Affidavit of Kortni Hobson
   5. Report of Accident and records from Healthworks
   6. April, 17, 2019 record from Southern California Orthopedic Institute
   7. November 16, 2017 medical records (Identification Only)
   8. Tyler Physical Therapy records
   9. Traeger Incident Report
   10. DocuSign receipt
   11. Email from Kortni Hobson to Jon Woods
   12. Emails between Kortni Hobson and Jon Woods
   13. Emails between Megan Rotella and Jon Woods
   14. Email from Megan Rotella to Jon Woods
   15. Email from Megan Rotella to Jon Woods
   16. Emails between Megan Rotella and Jon Woods
   17. Emails from Megan Rotella to Jon Woods
   18. January 30, 2018 termination letter
   19. Email from Kortni Hobson to Jon Woods
   20. Email from Kortni Hobson to Jon Woods
   21. Letter from Kortni Hobson to Jon Woods
   22. Email from Kortni Hobson to Jon Woods
   23. Employee Handbook signature page (Identification Only)
   24. Employee On-the-Job Injuries Responsibilities (Identification Only)

Technical record:3
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Employer’s Pre-Expedited Hearing Statement
   5. Employer’s Revised Pre-Expedited Hearing Statement
   6. Reply to Employer’s Revised Pre-Expedited Hearing Statement
   7. Employee’s Motion in Limine
   8. Employer’s Motion in Limine




3
 Both parties filed Post-Hearing Briefs, but failed to request the Court’s permission as required by
Tennessee Compilation Rules and Regulations 0800-002-21-.20(2) (2019).
                                                 6
                          CERTIFICATE OF SERVICE

      I certify that a copy of the Expedited Hearing Order was sent as indicated on
October 10, 2019.

  Name                  Certified     Via       Service Sent To
                        Mail          Email
  J. Allen Brown,                        X      allen@jallenbrownpllc.com
  Employee’s
  Attorney
  Gerard Jabaley,                        X      gjabaley@wimberlylawson.com
  Employer’s Attorney



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




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