                                                                                                   FILED
                                                                                                ::\1anh 2 6, 2 018

                                                                                               TN COURT OF
                                                                                           WORKERS' COMPENSATIO N
                                                                                                 C Lfil S

                                                                                                   Time·7:30 A.M
             TENNESSEE BUREAU OF WORKERS' COMPENSATION
            IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                           AT MURFREESBORO

RENEE JOHNSON,                                      )   Docket No.: 2017-05-0540
         Employee,                                  )
v.                                                  )
V ALEO, INC.,                                       )   State File No.: 32721-2016
           Employer,                                )
AND                                                 )
TRAVELERS INDEM. CO.,                               )   Judge Robert Durham
           Carrier.                                 )
                                                    )

      EXPEDITED HEARING ORDER GRANTING TEMPORARY PARTIAL
                       DISABILITY BENEFITS

       This case came before the Court for an Expedited Hearing on March 20, 2018.
The issue is whether Ms. Johnson is entitled to temporary partial disability benefits from
May 1, 2017, through the present and ongoing. 1 Val eo asserted that it rightfully
terminated Ms. Johnson for misconduct and does not owe her temporary benefits because
it would have accommodated her post-surgery restrictions but for the termination. The
Court holds Ms. Johnson is likely to prove that the actions leading to her termination did
not constitute misconduct under Valeo's rules and procedures. Thus, it grants Ms.
Johnson's request for benefits.

                                         History of Claim

       Ms. Johnson worked as a first -shift production supervisor for Val eo beginning in
2011. The undisputed evidence was that from her hire until April 8, 2016, Ms. Johnson
received positive evaluations and consistent raises from Valeo management. Valeo never
formally disciplined her or recommended corrective action before April 8.

       Valeo paid Ms. Johnson a salary in her supervisory position. However, if she and
the other supervisors worked weekends, Valeo paid them overtime. To receive overtime,
Ms. Johnson entered her weekend hours on an electronic form and submitted it to human

1
   At the hearing, the parties stipulated to compensability, Ms. Johnson 's inability to work without
accommodations, her compensation rate at $855.50, and the period for which benefits are due if the Court
held Valeo owes them.
resources for approval.

       In October 2015, Valeo hired a new human resources manager, Jordan Greene.
Ms. Greene testified that soon after her hire, she began receiving complaints about Ms.
Johnson's attendance. She started investigating the hours Ms. Johnson actually worked.
Around the same time, Valeo also found the third-shift supervisor's performance
unsatisfactory and demoted him in February 2016. Following the demotion, plant
manager Fabien Chevrier required Ms. Johnson and the second-shift supervisor, Andre
Dysart, to cover the third-shift supervisory duties until he found a replacement. By
agreement, Mr. Dysart extended his hours to cover the first half of the third shift, while
Ms. Johnson came in early to cover the second half. They did not receive additional pay
for covering the shift on weekdays, but Mr. Dysart and Ms. Johnson could tum in any
weekend hours spent supervising the third shift as overtime.

       On April 8, 2016, Ms. Greene and Mr. Chevrier issued a written warning to Ms.
Johnson regarding multiple lapses in attendance, failure to provide required supervision,
and falsification of weekend timesheets. Ms. Johnson acknowledged the warning by
signing it. At the hearing, Ms. Johnson did not seriously dispute the warning's assertions.
However, she testified that, since she was a salaried employee, she never maintained an
accurate record of her actual hours worked and would often come and go throughout her
shift. Further, she stated Mr. Chevrier was well aware of this and never previously
complained.

        A few weeks later, on April 27, Ms. Johnson injured her left shoulder and wrist
after tripping on some cords and falling. She received authorized treatment and received
a sling for her shoulder. Ms. Johnson returned to work the next day and continued
working at regular duty until May 13. On that day, Valeo terminated Ms. Johnson
without warning, asserting that she falsified her timesheet records by stating she worked
several Sundays from February to May when she did not do so.

      With regard to the timesheets, Ms. Johnson acknowledged that she actually
worked from 12:30 a.m. until 5:30 to 6:00 a.m. on Monday mornings, not Sunday
mornings as stated on the timesheet. However, she considered those hours to be part of
the "weekend" since her designated weekly shift did not begin until 6:30 Monday
morning. Further, the computer would not allow her to change the date when she entered
her hours, so she felt compelled to use the line for Sunday to record her time. Ms.
Johnson asserted Valeo ignored her attempt to explain her reasoning at the time of her
    .   .   2
termmatwn.


2
  Ms. Johnson also testified that she felt Ms. Greene became somewhat hostile toward her after she
observed her in court over a domestic matter. However, Ms. Greene denied this allegation, and the Court
gave the matter little weight.

                                                  2
           In addition, the evidence established that either Ms. Greene or her assistant
    approved each of Ms. Johnson's timesheets. Further, testimony indicated Ms. Greene
    and Mr. Chevrier were aware of the actual hours Ms. Johnson and Mr. Dysart worked to
    cover the third shift over the weekends. However, neither Ms. Greene nor Mr. Chevrier
    said anything to Ms. Johnson about the asserted discrepancies, even when Ms. Greene
    issued the written warning on April 8. The unrebutted evidence revealed that Mr. Dysart,
    the second-shift supervisor, also submitted and was paid for work performed on Monday
    morning. However, Valeo did not terminate, or even discipline, him for his actions.

       In response, Ms. Greene testified Ms. Johnson knew that, while she could receive
overtime for covering third shift during weekend hours, she would not receive additional
compensation for doing so throughout the week. Further, no one disputed that Ms.
Johnson did not work on Sundays but worked early Monday mornings, and she should
not have claimed weekend overtime for those hours. Ms. Greene explained that she
approved the timesheets due to simple negligence on her part, and she did not catch the
error until May when her assistant pointed it out. 3 Finally, she explained that Mr. Dysart
received pay for the time he worked on Monday morning because that was part of the
second shift that began on Sunday evening and extended into Monday.

       Following her termination, Ms. Johnson obtained other employment. On April 12,
2017, Ms. Johnson underwent shoulder surgery, which left her temporarily totally
disabled. Val eo paid disability benefits until May 1, 2017, when her treating physician
released her to return to work with restrictions. Ms. Johnson's current employment could
not accommodate her restrictions. However, Ms. Greene testified Valeo would have
done so if Ms. Johnson were not terminated for cause.

                              Findings of Fact and Conclusions of Law

        Ms. Johnson has the burden of proof on all essential elements of her claim. Scott
v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18,
20 15). However, since this is an expedited hearing, she must only come forward with
sufficient evidence from which the Court can determine she is likely to prevail at a
hearing on the merits in order to meet her burden. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

       The sole issue is whether Ms. Johnson is entitled to temporary disability benefits
following her release to return to work with restrictions on May 1, 2017. Under
Workers' Compensation Law, an employee may recover temporary partial disability
benefits if "able to resume some gainful employment but has not reached maximum
recovery." Shepherd v. Haren Canst. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS
15, at *13 (Mar. 30, 2016). Temporary restrictions assigned by physicians during an

3
    Valeo did not discipline Ms. Greene for her oversight.

                                                       3
injured worker's medical treatment do not establish an entitlement to continued
temporary disability benefits if the employee is able to work without loss of income. !d.
at* 14.

       Here, the Court finds that, based on Ms. Greene's testimony and the fact that
immediately following her injury, Ms. Johnson worked at Valeo for two weeks with her
arm in a sling, Valeo could have accommodated Ms. Johnson's restrictions had she not
been terminated the year before. However, the Court must also determine whether the
actions that led to Ms. Johnson's termination constituted misconduct. If not, she might
be entitled to temporary disability benefits. See Mace v. Express Servs., Inc., TN Wrk.
Comp. App. Bd. LEXIS 49, at *8, 9 (Dec. 11, 2015).

        In Mace, the Appeals Board held that even though an employee might have an
injury that leaves her temporarily disabled, an employer still has a right to enforce
workplace rules. Thus, if an employer fires an employee because of misconduct "under
established or ordinary workplace rules and/or expectations," and those actions were a
true motivation for termination, then the employer will not be obligated to pay temporary
disability benefits. !d. at *9.

       In this case, the Court finds that the actions Valeo cited as the reason for Ms.
Johnson's termination did not rise to the level of misconduct "under established or
ordinary rules and/or expectations." 4 First, the Court finds that Ms. Johnson credibly
explained why she completed the timesheets as she did. She believed, and in fact, still
believes, that Valeo's procedures entitled her to overtime for the work she performed on
Monday mornings before her assigned shift. No one disputed that Ms. Johnson actually
worked the number of hours stated on the timesheets, with the only discrepancy being the
actual date she worked. No evidence suggests that this discrepancy was due to Ms.
Johnson's intent to mislead Valeo. Rather, as she testified without dispute, her inability
to change the date in the computer program caused the discrepancy. The Court also notes
that Ms. Greene admitted that after April 8, she had no evidence that Ms. Johnson did not
work the hours Valeo expected her to work. In other words, the evidence supports the
proposition that Ms. Johnson corrected the behavior that led to the written warning.

       Further, the Court finds that Valeo's actions also support a holding against
misconduct. Mr. Chevrier and Ms. Green were both generally aware of the arrangement
between Mr. Dysart and Ms. Johnson regarding the division of third-shift supervisory
duties. Yet neither told Ms. Johnson that she could not claim overtime for her work
before her regular first shift on Monday morning. Indeed, either Ms. Green or her
assistant approved all seven time cards in question and never addressed the issue with

4
 The Court feels compelled to note that if, on April 8, Valeo terminated Ms. Johnson based on the actions
cited in the written warning, the Court's holding might be different. However, it did not do so but chose
to issue a warning instead.

                                                   4
Ms. Johnson until her termination.

       Finally, the Court finds it significant that Mr. Dysart also claimed overtime for
work performed on Mondays just after midnight, and he was neither terminated nor
disciplined for these actions. Ms. Greene attempted to differentiate between Mr. Dysart
and Ms. Johnson by stating that Mr. Dysart's shift began on the weekend and only
concluded on Monday. However, the fact is that both Mr. Dysart and Ms. Johnson
claimed overtime for work performed on Monday mornings, and only Ms. Johnson
received punishment. At the very least, the fact that Mr. Dysart also claimed overtime
supported Ms. Johnson's belief that she was entitled to it as well.

        Thus, the Court holds that Valeo owes Ms. Johnson temporary partial disability
benefits. Given that it is undisputed that Ms. Johnson cannot return to work with her
current employer given her restrictions, the amount she can effectively earn in her
partially disabled condition is $0; thus, her compensation rate during this period is the
equivalent of two-thirds of her average weekly wage. Williams v. Saturn Corp., 2005
Tenn. LEXIS 1032, at *6 (Tenn. Workers' Comp. Panel Nov. 15, 2005). As a result, Ms.
Johnson is entitled to temporary disability benefits from May 1, 20 17, through this
order's date at the agreed compensation rate of $855.50, and this compensation shall
continue until her authorized physician finds her to be at maximum medical improvement
or she is able to return to work.

      IT IS, THEREFORE, ORDERED that:

   1. Valeo shall pay Ms. Johnson temporary partial disability benefits from May 1,
      2017, through this order's date, at the compensation rate of $855.50 for a total of
      $39,841.86. Valeo shall continue to pay these benefits to Ms. Johnson until her
      authorized physician places her at MMI or she is able to return to work.

   2. This matter is set for a Scheduling Hearing on May 7, 2018, at 1:30 p.m. C.S.T.
      The parties or their counsel must call615-253-0010 or toll-free at 855-689-9049 to
      participate in the hearing. Failure to call may result in a determination of the
      issues without your participation.

ENTERED THIS THE 26thDAY OF MARCH, 2018.




                             ~-  Court of Workers' Compensation Claims



                                           5
                                              APPENDIX

  Technical Record

       1.   Petition for Benefit Determination
       2.   Dispute Certification Notice
       3.   Request for Expedited Hearing
       4.   Order Granting Motion for Continuance
       5.   2nd Order Granting Continuance
       6.   Employee's Expedited Hearing Brief
       7.   Employer's Expedited Hearing Brief

  Exhibits

       1. Ms. Johnson's affidavit
       2. First Report oflnjury
       3. Wage Statement
       4. Choice of Physician Form
       5. Job Description
       6. Medical Records
       7. Ms. Greene's affidavit
       8. AprilS, 2016 Corrective Action Form
       9. Formal Termination Notice
       10. Work Status Reports
       11. Email from Ms. Johnson to Valeo
       12. Ms. Johnson's Time Sheets
       13. Mr. Dysart's Time Sheets

                                   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 26th day
 ofMarch, 2018.
Name                   Certified   Via   Fax      Via     Email Address
                       Mail        Fax   Number   Email

Carolina Martin                                       X   cvmartin@ hughesandcol ernan.com
Vanessa Hall                                          X   vrhall(ci).travelers.com




                                                          rum, Clerk of Court
                                                          Workers' Compensation Claims

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