Mutters, Kenny v. Safety National Casualty Corp.

FILED

Dec 04, 2024

08:17 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

Kenny Mutters, ) Docket No. 2024-60-2307

Employee, )

v. )

Ricoh USA, Inc., ) State File No. 29467-2023

Employer, )

And )

Safety National Casualty Corp., ) Judge Kenneth M. Switzer

Carrier. )

EXPEDITED HEARING ORDER GRANTING BENEFITS

The Court held an expedited hearing on Kenny Mutters’s request for additional

temporary disability benefits and attorney’s fees. The parties also disputed the correct

compensation rate. For the reasons below, the Court awards temporary disability benefits

from June 10 through September 9, 2024, but denies his request for attorney’s fees at this

time. In addition, Mr. Mutters is likely to prevail at trial in showing the correct weekly

compensation rate is $588.97.1

Claim History

On April 7, 2023, Mr. Mutters injured his left knee and right shoulder when he

slipped and fell on cardboard while working for Ricoh USA. Ricoh accepted the claim.

Authorized physician Dr. Benjamin Debelak performed surgery on the knee and

shoulder and either took Mr. Mutters completely off work or placed restrictions after each

visit for the next several months. Dr. Debelak placed Mr. Mutters at maximum medical

improvement on January 9, 2024. Mr. Mutters testified that the doctor placed no permanent

1

Ricoh also sought a ruling on whether it is entitled to credit for an alleged overpayment of temporary

disability benefits. The Court declines to decide that issue at the interlocutory stage because section 50-6-

207(1)(E) allows for a credit for overpayment against permanent partial disability benefits. This issue is

not ripe.

1

restrictions on that date, and the treatment notes and final medical report do not mention

work restrictions.

Throughout his treatment, Ricoh paid temporary disability benefits. Mr. Mutters

testified that while treating he asked his supervisor, Randy Henson, about returning to work

with his restrictions but was told no work was available. Instead, Ricoh offered severance,

which he accepted. He did not ask for the severance but explained that he took it because

“the job was not there any longer.” Mr. Mutters’s temporary disability benefits ended on

March 19, 2024, and he filed his petition for benefit determination in early April.

Later that month, Mr. Mutters received additional authorized treatment with Dr.

Debelak. The doctor diagnosed disorder of the right rotator cuff, but the notes do not

mention work restrictions. Mr. Mutters underwent a shoulder MRI in May, and at the next

visit on June 10, Dr. Debelak wrote: “Patient is NOT at MMI as he has recurrent right

shoulder rotator cuff tearing of the rotator cuff that was repaired following his work injury

in April 2023.” (Emphasis in original). He recommended surgery. According to Mr.

Mutters, Dr. Debelak told him he should not use his right upper extremity at the June visit;

however, that restriction is not recorded in the treatment notes.

Rather, the first written documentation of that restriction is a July 16 response to a

letter from Mr. Mutters’s attorney. The letter asked, “Please advise as of 6/10/2024, the

work status/ restrictions for Mr. Mutters[.]” Dr. Debelak wrote: “Mr. Mutters is retired at

this time. However if he [were] working the current restrictions would be no use of right

upper extremity.”

At some point after the June 10 surgery recommendation, Ricoh requested

utilization review. Neither party offered documentation or other proof on the utilization

review process.2 On September 10, Mr. Mutters underwent the surgery. Ricoh initiated

temporary disability benefits as of that date.

Mr. Mutters contended he is due benefits from June 10 to September 9. He testified

that he asked again about returning to work after reaching maximum medical improvement

in January 2024, and again Ricoh did not have a job for him. If they had offered him work,

he would have taken it. Mr. Mutters, age 63 on the date of trial, said he is not retired now

but began receiving Social Security benefits in June 2024. He explained, “I just [drew] my

social security because at that point in time I had no job and no income.”

2

On November 22, Mr. Mutters’s attorney filed an affidavit describing procedural events and discussions

between counsel after filing the petition. Ricoh objected on several grounds, including that Mr. Mutters

did not file the affidavit within the deadline in the order setting the hearing and Tennessee Compilation

Rules and Regulations 0800-02-21-.15(1) (2023). The Court sustains the objection solely on that basis.

2

Mr. Mutters acknowledged that he did not contact Ricoh to ask about modified duty

in June 2024. He has not worked since his injury, nor has he applied for any jobs. He does

not believe he will be hired by any employer with his current work restrictions.

Ricoh countered that it was unaware of Mr. Mutters’s work restrictions after January

10. It supported this with a declaration from the claims manager for the third-party

administrator, Nicole Godfrey, who testified: “The Employee was not paid TTD prior to

his surgery of 09/10/2024 because I received no communication from the treating

physician, Benjamin Debelak, M.D., or his office, that the restrictions for Mr. Mutters had

changed since he was last seen and released on 01/09/2024.”

Ricoh further argued that the July 16 response from Dr. Debelak is not a “work

excuse” because it is not a “form”—but even if it were, it did not have notice of the

restriction until after July 16. Ricoh additionally contended that Mr. Mutters’s retirement

precluded his eligibility for temporary disability benefits, although it conceded that no

single on-point case supports this position.

As for Mr. Mutters’s compensation rate, the parties agreed that he was paid two

rates during the pendency of this claim, and they offered a corrected wage statement to

make their arguments. The statement lists gross wages from April 10, 2022, through March

31, 2023, which total $19,436.10. Mr. Mutters testified that he underwent rotator cuff

repair on May 26, 2022, and later a replacement of his left shoulder. He did not work from

the date of the first procedure until January 2, 2023.

The parties disputed the circumstances of two payments Mr. Mutters received while

he was recuperating from his left-shoulder surgery, as shown on the corrected wage

statement.

First, Mr. Mutters said that payment of $556.97 on June 19, 2022, was paid time

off that he accrued before the left-shoulder surgery; it was not wages earned for working

during that time. Second, Mr. Mutters said a payment of $357.72 on September 11, 2022,

was a quarterly “bonus” that all on his team received and did not depend on whether he

worked. He asserted he worked for 22 weeks in the year before the date of injury and that

the weeks noting these two payments should not be counted as weeks worked in the

compensation rate calculation. He agreed that the $556.97 paid time off and $357.72 bonus

should be included in his total gross wages.

In contrast, Ricoh maintained that Mr. Mutters earned wages for 26 weeks in the

year before the work injury. It contended that the “raw wage data” attached to Ms.

Godfrey’s declaration characterizes the payments of $556.97 and $357.22 as “regular pay.”

The document also states that the bonus paid to Mr. Mutters was in a different amount and

paid at a different time.

3

Findings of Fact and Conclusions of Law

Mr. Mutters must show that he is likely to prevail at a hearing on the merits. Tenn.

Code Ann. § 50-6-239(d)(1) (2024); McCord v. Advantage Human Resourcing, 2015 TN

Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

Temporary Disability Benefits

As an initial matter, the Court finds Mr. Mutters’s testimony credible in all respects.

He was calm, at-ease, self-assured, steady, confident, forthcoming, reasonable, and honest.

See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014) (listing characteristics of a

credible witness).

Mr. Mutters testified without contradiction that Ricoh never offered him light-duty

work and instead suggested severance. His decision to accept the severance, having no

other option, was reasonable, as is his receipt of social security benefits since June due to

a lack of income from work. The Court finds that he did not “retire” voluntarily and credits

his testimony that he wishes to return to the workforce. Moreover, Ricoh’s insistence that

an employee’s retirement precludes any eligibility for temporary benefits is misplaced. It

cited no single on-point case, and the Court similarly found no authority for that

proposition.

Ricoh’s argument that it was unaware of Mr. Mutters’s work restrictions after

January 10 is also unpersuasive. Mr. Mutters testified that he told his supervisor after being

placed at maximum medical improvement in January that he had no restrictions and asked

about work but was refused. Ricoh offered no contrary proof.

Ricoh similarly offered no case law to support its contention that a signed letter from

a doctor about work restrictions is somehow inadmissible or should be afforded no weight

because it is not on a “form.” In fact, the Appeals Board gave implicit approval to these

types of letters or medical questionnaires at the expedited hearing stage in McKim v.

Stansell Electric, 2023 TN Wrk. Comp. App. Bd. LEXIS 11, at *10 (Feb. 22, 2023),

holding:

[A]n employee’s entitlement to temporary disability benefits is a legal

conclusion that is determined by considering certain factors, including

medical restrictions and causation. The court properly relied on the medical

information in [the doctor’s] responses to the questionnaire regarding the

cause of Employee’s disability in determining Employee was entitled to

temporary disability benefits.

Ricoh also cited no case concluding that because an employer did not have “notice”

of an employee’s restrictions when they were placed, it need not pay temporary disability

benefits now.

4

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. Jones v. Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS

48, at *7 (Dec. 11, 2015). Further, “[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.” Id. 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 cannot return the employee to work within the restrictions,

the injured worker may be eligible for temporary partial disability. Id. at *8.

Here, on June 10, Dr. Debelak gave the opinion that Mr. Mutters was not at

maximum medical improvement and placed restrictions, which Ricoh did not

accommodate. Ricoh accepted the claim and reinstated benefits on September 10.

Therefore, Mr. Mutters has shown he is likely to prevail at a hearing on the merits that he

is entitled to temporary disability benefits for 91 days from June 10 to September 9, 2024.

Average Weekly Wage and Compensation Rate

The next question is the amount of benefits Mr. Mutters is owed for that timeframe.

Section 50-6-102(3)(A) defines “average weekly wages” as the injured worker’s

earnings for the 52 weeks immediately before the date of injury divided by 52, but:

[I]f the injured employee lost more than seven (7) days during the period

when the injured employee did not work, . . . 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.

In deciding which lost days should be deducted from the 52 weeks, “only sickness, other

disabilities and fortuitous events can be considered.” Russell v. Genesco, Inc., 651 S.W.2d

206, 210 (Tenn. 1983) (Emphasis added). Further, “[t]he determination of whether a day

an employee does not work should be deducted from the computation of

the average weekly wage is dependent upon the facts and circumstances of each case.”

Cantrell v. Carrier Corp., 193 S.W.3d 467, 472 (Tenn. 2006).

Applying these principles and considering the circumstances of this case, Mr.

Mutters testified that he did not work or earn wages from May 26, 2022, through January

1, 2023. The Court accepts this testimony over Ms. Godfrey’s declaration and attachments

that characterize two payments during that timeframe as “regular pay.” Her

characterization is not binding on this Court, and she was unavailable for cross-

examination at the hearing. The Court finds that Mr. Mutters did not work during that time

due to surgery and recovery, which is “disability.” Under Russell, four weeks should be

5

deducted from the 26 weeks on the wage statement and “raw wage data” that Ricoh offered.

For these reasons, Mr. Mutters is likely to prevail in a hearing on the merits as to the

calculation of his compensation rate.

The Court further finds that Mr. Mutters worked and earned wages for 22 weeks in

the year before his injury, and his total gross earnings were $19,436.10. Dividing that

amount by 22 weeks yields an average weekly wage of $883.46 and a compensation rate

of $588.97. His daily rate is $84.14, multiplied by 91 days, totals $7,656.74. Mr. Mutters’s

attorney is entitled to fees of 20% from this award. Tenn. Code Ann. § 50-6-226(a).

Fees

As for the other attorney’s fees Mr. Mutters seeks, these fall under section 50-6-

226(d)(1)(B) for Ricoh’s alleged failures to timely provide the recommended surgery and

to pay temporary disability benefits.

The Appeals Board has held that “a decision to award attorneys’ fees and expenses

at an interlocutory stage of a case should be made only in extremely limited circumstances.”

Travis v. Carter Express, 2019 TN Wrk. Comp. App. Bd. LEXIS 25, at *10 (June 24, 2019)

(Emphasis in original). Further, “although a finding of wrongfulness may ultimately

support an award of reasonable attorney’s fees and costs in accordance with section 50-6-

226(d)(1)(B), it does not, standing alone, support an award of attorney’s fees and costs at

an interlocutory stage of the case.” Id. at *13 (Emphasis in original).

Here, Mr. Mutters argued that the surgery was not sent to utilization review until

much later after the surgery was recommended and past the deadline. But he offered no

admissible proof on this timing. Ricoh had the right to request utilization review under

section 50-6-124. Further, on this record, the delay in payment of temporary disability

benefits was not unreasonable.

Therefore, the Court finds that this case presents no “extremely limited

circumstances” favoring a fee award at the interlocutory stage. Mr. Mutters is not likely to

prevail at a hearing on the merits at this time that he is entitled to fees. The Court likewise

declines to refer the case to the Compliance Program for consideration of the imposition of

penalties. Mr. Mutters may renew these requests at the compensation hearing.

IT IS ORDERED AS FOLLOWS:

1. Ricoh shall pay Mr. Mutters temporary disability benefits in a lump-sum of

$7,656.74. Mr. Mutters’s attorney is entitled to fees of 20% from this award.

2. Mr. Mutters’s requests for additional attorney’s fees and a referral to the

Compliance Program for penalties are denied at this time.

6

3. A status hearing is set for April 14, 2025, at 10:00 a.m. Central Time. The parties

must dial (615) 532-9552 or (866) 943-0025 to participate.

4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance

with this Order must occur no later than seven business days from the date of entry

of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The

Insurer or Self-Insured Employer must submit confirmation of compliance with this

Order to the Bureau by email to WCCompliance.Program@tn.gov no later than the

seventh business day after entry of this Order. Failure to submit the necessary

confirmation within the period of compliance might result in a penalty assessment

for non-compliance. For questions regarding compliance, please contact the

Workers’ Compensation Compliance Unit via email at

WCCompliance.Program@tn.gov.

ENTERED December 4, 2024.

________________________________________

JUDGE KENNETH M. SWITZER

Court of Workers’ Compensation Claims

7

APPENDIX

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice and employee’s additional issue

3. Hearing Request

4. Order Setting Expedited Hearing

5. Employee’s Pre-Hearing Statement

6. Pretrial Order

7. Employer’s Pre-Hearing Statement

8. Employer’s Objection to Affidavit

9. Employee’s Response

Exhibits

1. Affidavit of Mr. Mutters

2. Employee’s Exhibits

2a. Wage statement

2b. Amended wage statement

2c. Payment ledger

2d. Dr. Debelak’s records and letter about restrictions

3. Employer’s Exhibits

3a.Declaration of Devon Roberts and attachment

3b. Declaration of Nicole Godfrey and attachments

3c. Dr. Debelak’s restriction notes

4. Affidavit of Jill Draughon (Identification only)

8

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on December 4, 2024.

Name Certified Regular Email Sent to

Mail mail

Jill Draughon, X jdraughon@hughesandcoleman.com

employee’s attorney sconner@hughesandcoleman.com

John Lewis, X john@johnlewisattorney.com

employer’s attorney

_______________________________________

Penny Shrum

Clerk, Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov

9

Right to Appeal:

If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation

Appeals Board. To do so, you must:

1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the

Court of Workers’ Compensation Claims before the expiration of the deadline.

¾ If the order being appealed is “expedited” (also called “interlocutory”), or if the

order does not dispose of the case in its entirety, the notice of appeal must be filed

within seven (7) business days of the date the order was filed.

¾ If the order being appealed is a “Compensation Order,” or if it resolves all issues

in the case, the notice of appeal must be filed within thirty (30) calendar days of

the date the Compensation Order was filed.

When filing the Notice of Appeal, you must serve a copy on the opposing party (or attorney,

if represented).

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar

days after filing 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 filing 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 your appeal.

3. You are responsible for ensuring a complete record is presented on appeal. If no court

reporter was present at the hearing, you may request from the Court Clerk the audio

recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your

appeal, which the Appeals Board has emphasized is important for a meaningful review of

the case, a licensed court reporter must prepare the transcript, and you must file it with the

Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,

and you will receive notice once it has been submitted. For deadlines related to the filing of

transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the

Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)

4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits

it to the Appeals Board, a docketing notice will be sent to the parties.

If neither party timely files an appeal with the Appeals Board, the Court Order

becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory

orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

NOTICE OF APPEAL

Tennessee Bureau of Workers’ Compensation

www.tn.gov/workforce/injuries-at-work/

wc.courtclerk@tn.gov | 1-800-332-2667

Docket No.: ________________________

State File No.: ______________________

Date of Injury: _____________________

___________________________________________________________________________

Employee

v.

___________________________________________________________________________

Employer

Notice is given that ____________________________________________________________________

[List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the

Workers’ Compensation Appeals Board;ĐŚĞĐŬŽŶĞŽƌŵŽƌĞĂƉƉůŝĐĂďůĞďŽdžĞƐĂŶĚŝŶĐůƵĚĞƚŚĞĚĂƚĞĨŝůĞͲ

ƐƚĂŵƉĞĚŽŶƚŚĞĨŝƌƐƚƉĂŐĞŽĨƚŚĞŽƌĚĞƌ;ƐͿďĞŝŶŐĂƉƉĞĂůĞĚͿ͗

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ Other Order filed on_____________________

issued by Judge _________________________________________________________________________.

Statement of the Issues on Appeal

Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

Parties

Appellant(s) (Requesting Party): _________________________________________ ‫܆‬Employer ‫܆‬Employee

Address: ________________________________________________________ Phone: ___________________

Email: __________________________________________________________

Attorney’s Name: ______________________________________________ BPR#: _______________________

Attorney’s Email: ______________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellant *

LB-1099 rev. 01/20 Page 1 of 2 RDA 11082

Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________

Appellee(s) (Opposing Party): ___________________________________________ ‫܆‬Employer ‫܆‬Employee

Appellee’s Address: ______________________________________________ Phone: ____________________

Email: _________________________________________________________

Attorney’s Name: _____________________________________________ BPR#: ________________________

Attorney’s Email: _____________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a

true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described

in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this

case on this the __________ day of ___________________________________, 20 ____.

______________________________________________

[Signature of appellant or attorney for appellant]

LB-1099 rev. 01/20 Page 2 of 2 RDA 11082