The opinion
FILED
Dec 06, 2024
09:20 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
JOHN BARKER, ) Docket No. 2023-03-6535
Employee, )
v. )
LOUDON COUNTY RENTALS & )
MINI STORAGE, INC., ) State File No. 70466-2022
Employer, )
And )
WESCO INSURANCE COMPANY, )
Carrier. ) Judge Pamela B. Johnson
COMPENSATION ORDER
John Barker injured his lower back and hip at work, and Loudon County accepted
the claim. 1 He now seeks additional temporary disability and permanent total disability or
alternatively permanent partial disability to include his original award and increased
benefits. Loudon County seeks a credit for the overpayment of temporary disability
benefits and an offset for his old-age Social Security retirement benefits.
Based on a preponderance of the evidence, the Court holds that Mr. Barker is
entitled to additional temporary disability benefits and permanent and total disability
benefits. Loudon County is entitled to a credit for the overpayment of temporary disability
benefits and the offset for Mr. Barker’s old-age Social Security retirement benefits.
History of Claim
Mr. Barker worked as a service technician for Loudon County. 2 He injured his
lower back and hip after lifting a machine on September 15, 2022, and reported the injury
the same day. Loudon County authorized medical treatment with panel-selected
1
Loudon County is now known as River City Equipment Rentals, a part of Empower Group.
2
At the time of the injury, Mr. Barker was 63 years old and did not have a high school diploma or GED.
His weekly compensation rate was $749.58. Beginning May 2024, he received $1,297.00 per month
in old-age Social Security retirement benefits.
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physician Dr. Patrick Bolt. Dr. Bolt diagnosed a left L1-L2 disc protrusion, which he
treated conservatively. Dr. Bolt placed Mr. Barker at maximum medical improvement
on January 8, 2024, assigning a 7% permanent impairment and permanent restrictions.
Restrictions and efforts to return to work
The parties disputed the extent of Mr. Barker’s disability, both temporary and
permanent. He did not return to work for any employer after his work injury.
Loudon County paid Mr. Barker temporary total disability benefits from
September 30, 2022, through September 28, 2023, or 52 weeks, at a weekly rate of
$799.74. Loudon County claimed it overpaid $50.16 per week and is entitled to a credit
of $2,608.32. Mr. Barker contended that he was owed temporary disability benefits
from September 29, 2023, until the date of maximum medical improvement on January
4, 2024, or 14 weeks and 4 days less the overpayment credit.
On June 19, 2023, Dr. Bolt assigned restrictions: alternate sitting/standing and
no lifting over 30 pounds maximum. These restrictions were continued on August 4
and September 18.
Loudon County notified Mr. Barker on September 26 that it would temporarily
accommodate his restrictions by modifying his regular job as a service technician. It
identified tasks within his restrictions that he could perform including pressure
washing equipment and picking up parts. It instructed Mr. Barker to report to work on
October 9.
Mr. Barker testified that pressure washing equipment is a difficult job because
the pressure washer pulls and jerks. He also said most parts weigh more than 20
pounds. Thus, Mr. Barker did not believe that he could perform the modified duty. His
supervisor Ryan Kendrick testified that the modified job tasks met the weight
restrictions.
On October 3, Mr. Barker reported to Dr. Bolt that he was not doing well, and
he did not feel he could return to work. Dr. Bolt revised his restrictions: no overhead
work, no outstretched arm use, no heavy gripping, no use of vibrating tools, alternate
sitting/standing, no lifting over 5 pounds frequently or 20 pounds maximum, no
stooping/bending/twisting, and no use of hazardous machinery.
Loudon County made another offer of modified duty on October 12. The job
tasks within his updated restrictions included consulting and delivering small
equipment; performing inventory and organizing shelves; checking fuel and hours and
cleaning trash out of equipment; cleaning inside of company vehicles; sweeping,
mopping, and restocking bathrooms; organizing lot with mini skid; checking air filters
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in small equipment; scissor lift maintenance; stuffing envelopes and filing; measuring;
sorting tools; and cleaning shop and office including wiping down walls and picking
up trash. Mr. Barker was instructed to report on October 23.
On November 27, Dr. Bolt answered a questionnaire from Mr. Barker’s counsel
that asked Dr. Bolt to consider whether Mr. Barker could perform the job tasks in
Loudon County’s return-to-work offer. Dr. Bolt noted that Mr. Barker was unable to
perform those jobs within the restrictions assigned on October 3, stating it “[a]ppears
no bending would restrict some items.”
Loudon County’s counsel wrote Dr. Bolt, noting the September 18 restrictions
did not list bending. Dr. Bolt responded that, although those restrictions did not
identify bending, Mr. Barker would be unable to perform the listed duties. Dr. Bolt
said Mr. Barker saw him on October 3 to discuss restrictions “due to difficulty with
his condition only.” Dr. Bolt explained the change in restrictions from September 18
to October 3: “MRI showed bulging discus at L1-2 and L5-S1. P[atien]t clarified with
me his limitations and work requirements which I was unaware of at the 9/18/23 visit.
P[atien]t’s FCE results are his permanent restrictions.”
For his part, Mr. Barker testified that the equipment was too heavy for him to
deliver. He said inventory required climbing a ladder to count parts on shelves. The
maintenance and cleaning tasks required him to climb, bend, and twist, and when
considering each task, he said he was not physically able to do the work.
Mr. Kendrick disagreed. He said inventory would not require Mr. Barker to
climb a ladder. Mr. Kendrick testified that Mr. Barker would not be asked to bend or
twist to perform the maintenance work. Instead, a coworker would check the
equipment and then tell Mr. Barker what to record. However, Mr. Kendrick
acknowledged that cleaning, mopping, and sweeping the bathrooms or cleaning
equipment would require bending and twisting.
Dr. Bolt adopted these permanent restrictions recommended in the functional
capacity evaluation performed on January 8:
- occasional sitting 30 minutes continuous up to 2 hours per day,
- occasional standing 10 minutes continuous with support up to 2 hours per
day,
- occasional walking 10 minutes continuous with support up to 2 hours a
day,
- occasional bending 5 minutes continuous up to 1 hour per day,
- no twisting,
- occasional squatting 30 seconds continuous up to 15 minutes a day,
- no crawling,
- no kneeling,
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- occasional balancing 10 minutes continuous with support up to 2 hours a
day,
- occasional stair climbing 10 minutes continuous with support up to 2
hours a day,
- no ladder climbing,
- occasional driving 30 minutes continuous up to 2 hours a day,
- occasional grasping 30 minutes continuous up to 2 hours a day,
- occasional fingering 30 minutes continuous up to 2 hours a day,
- occasional reaching overhead 30 seconds continuous up to 20 minutes
per day,
- occasional reaching forward 30 second continuous up to 20 minutes per
day,
- no reaching down,
- occasional pushing 20 pounds up to 6 feet, and
- occasional pulling 20 pounds up to 6 feet.
The evaluator noted Mr. Barker was “able to work part time at a job that would give
him the freedom to sit and stand as needed. Performing seated level applications such as
answering phones, sorting, or putting mechanical parts together using his hands.” In the
assessment, the evaluator commented that Mr. Barker is a “high fall risk as evidenced by
his poor balance,” and “his numbness and tingling in bilateral legs and feet as well as foot
drag, and back pain are limitations to him for all standing level activities as well as
prolonged sitting.” 3
On June 19, 2024, Loudon County made a full-time return-to-work offer based
on Mr. Barker’s permanent restrictions. The offer listed the tasks Mr. Barker would be
asked to perform, which included: pressure washing equipment with a chair
accommodation, physical inventory, sweeping and mopping, small equipment repairs,
stuffing envelopes, helping customers, painting and sanding, general cleaning, trailer
inspections, sweeping gravel out of the road, and truck cleanup.
Vocational proof
Both parties sent Mr. Barker for a vocational disability evaluation. Mr. Barker relied
on Michael Galloway, and Loudon County on Bentley Hankins. Both reviewed Mr.
Barker’s medical records, interviewed him, and performed limited academic testing.
Mr. Galloway noted Mr. Barker did not receive a high school diploma or earn a
GED, but he previously held a commercial driver’s license and had on-the-job training as
a heavy equipment operator. His past work included skilled, medium to heavy work. The
3
Dr. Bolt later testified that the permanent restrictions of grasping, fingering, reaching overhead and
reaching forward would not be related to the work injury of the L1-L2 disc protrusion.
4
related permanent restrictions assigned by Dr. Bolt placed Mr. Barker in the less than
sedentary physical demand. Mr. Galloway noted that Mr. Barker had no transferable job
skills. Mr. Galloway concluded that Mr. Barker was 100% vocationally disabled due to his
work injury, considering his age, educational-vocational profile, lack of transferable job
skills, permanent restrictions, and the local labor market.
Dr. Hankins similarly noted that Mr. Barker did not have a diploma or GED and
lacked occupational licenses or certifications. Dr. Hankins likewise found Mr. Barker’s
past work history was skilled and required medium to heavy physical demands. Dr.
Hankins’s academic testing showed that Mr. Barker had a low average of intelligence and
below average general learning ability. He tested at a second-grade reading level and
fourth-grade math level. Due to his permanent restrictions, Dr. Hankins agreed that Mr.
Barker lacked transferable job skills. Dr. Hankins concluded that Mr. Barker had a 98-99%
permanent vocational disability.
As an example of which limited jobs Mr. Barker might qualify for, Dr. Hankins
testified Mr. Barker could work part-time positions up to 6 hours per day as an unarmed
gate guard. Dr. Hankins acknowledged that Mr. Barker would only qualify for unarmed,
low-level positions requiring no emergency response or property patrol. On cross-
examination, Dr. Hankins acknowledged that the 3 potential jobs he found in the local labor
market required physical or educational requirements Mr. Barker did not possess.
When asked to address Dr. Hankins’s assessment of a 98-99% vocational disability,
Mr. Galloway said finding a job within that limited number of jobs would be statistically
improbable. He further noted that Mr. Barker had a notable fall risk and would be a
workplace hazard.
Lay proof
Mr. Barker testified he had no difficulties performing his job duties before his work
injury. He received raises and bonuses for work performed. He denied difficulties with
lifting, carrying, changing positions, climbing stairs, driving, or with his balance before the
work injury. However, since his injury, his low back hurts, and his left leg goes numb
causing him to fall. He is unable to lift or carry more than 20 to 30 pounds and must
alternate between sitting and standing. He must lie down for four hours or more on most
days. He has trouble pushing or pulling, crawling, or kneeling. He is unstable on his feet
and must hold on to the handrail when climbing stairs. He cannot climb ladders because he
is unsteady. He cannot drive more than 30 minutes and must stop to move around. He tried
to help around the house and yard but had to stop without finishing. His pain is distracting,
and he finds it difficult to stay on-task or focused. 4
4
Mr. Barker’s wife testified consistently with Mr. Barker’s testimony regarding the effect of his work injury
on his activities of daily living.
5
Mr. Barker said he last worked September 15, 2022. He has had no income until he
began receiving old-age Social Security Retirement benefits. He said he went to work after
high school and worked all his life. He said he was not aware of any job that he could
physically do. Mr. Kendrick disagreed, stating that no job tasks in the June 19, 2024 offer
exceeded his permanent restrictions.
Findings of Fact and Conclusions of Law
Mr. Barker must prove his entitlement to the requested benefits by a preponderance
of the evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2024).
Temporary disability benefits
Mr. Barker first asked for additional temporary disability benefits. Because he was
released to work with restrictions, he may be entitled to temporary partial disability benefits
which are payable when an employee is capable of performing some work in his partially
disabled condition. Tenn. Code Ann. § 50-6-207(2). Mr. Barker’s entitlement to those
benefits “hinges on the reasonableness of [Loudon County’s] action in offering a light duty
position and the reasonableness of [Mr. Barker] in declining the offer.” Frye v. Vincent
Printing Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 34, at *16 (Aug. 2, 2016).
To determine reasonableness, Tennessee courts use an “analytical framework”
similar to that used when deciding whether an employee has made a “meaningful return to
work,” and the Board noted that courts will have to consider a “variety of factual
situations.” Id. at *17.
Here, Loudon County offered modified duty on September 26, 2023, with a report
date of October 9. The tasks included pressure washing equipment and picking up parts.
Mr. Barker testified those tasks exceeded his restrictions, but Loudon County
disagreed.
However, whether Mr. Barker could do the job or whether the job exceed his
restrictions is immaterial because Dr. Bolt increased Mr. Barker’s restrictions before
the report date of October 9. Under the new restrictions, Mr. Barker was limited to: no
overhead work, no outstretched arm use, no heavy gripping, no use of vibrating tools,
alternate sitting/standing, no lifting over 5 pounds frequently or 20 pounds maximum,
no stooping/bending/twisting, and no use of hazardous machinery.
Loudon County made another modified job offer on October 12, requiring Mr.
Barker to deliver small equipment and perform inventory, maintenance, cleaning, and
office work. Dr. Bolt stated that “Mr. Barker was unable to perform those jobs within
the restrictions assigned on October 3, stating ‘[a]ppears no bending would restrict
some items.” Dr. Bolt explained the change in restrictions from September 18 to
6
October 3, stating, “P[atien]t clarified with me his limitations and work requirements
which I was unaware of at the 9/18/23 visit.”
Considering Mr. Barker’s credible testimony and the testimony of Dr. Bolt, the
Court finds that Mr. Barker acted reasonably when declining Loudon County’s modified
job offer. Loudon County’s expectation that Mr. Barker could perform the modified duty
without stooping, bending, or twisting was unreasonable.
Thus, based on a preponderance of the evidence, the Court holds that Mr. Barker is
entitled to additional temporary partial disability benefits from September 29, 2023,
through January 8, 2024, or $10,868.91. Loudon County is entitled to a credit for its
overpayment of $2,608.32, reducing the lump-sum payment to $8,260.59. Mr. Barker’s
counsel is entitled to fees of 20% from this amount, or $1,652.12.
Permanent disability
Mr. Barker claimed he is permanently and totally disabled. When an employee’s
disability from a work-related injury is found to be permanent, the employee is entitled to
permanent disability benefits based on the degree of vocational disability caused by the
injury. Braden v. Mohawk Ind., Inc., 2022 TN Wrk. App. Bd. LEXIS 11, at *21-22 (Mar.
1, 2022) (internal citations omitted). An employee may be found permanently and totally
disabled when the work injury “totally incapacitates the employee from working at an
occupation that brings the employee an income.” Id.; Tenn. Code Ann. § 50-6-207(4)(B).
In assessing an employee’s permanent vocational disability caused by a work injury,
the Court can consider several factors, including the employee’s medical impairment, job
skills education, age, training, “job opportunities in the immediate and surrounding
communities, and the availability of work suited for an individual with that particular
disability.” Braden, 2022 TN Wrk. App. Bd. LEXIS 11, at *21 (internal citations omitted).
An employee’s own assessment of his or her overall physical condition, including the
ability or inability to return to gainful employment, “is competent testimony that should be
considered.” Id. at *21-22. The extent of an employee’s vocational disability is a question
of fact to be determined from both lay testimony and medical evidence. Id. at *22.
At the time of hearing, Mr. Barker was 65 years old and lacked a high school
diploma or GED. His work history was skilled and ranged from a medium to heavy physical
demand category. He suffered a 7% permanent impairment and was assigned significant
permanent restrictions, which placed him in the less than sedentary physical demand
category. The functional capacity evaluation noted that Mr. Barker was limited to part-time
work. The evaluator further noted that Mr. Barker was a “high fall risk” and limited in his
abilities to both stand and sit.
Mr. Galloway concluded that Mr. Barker was 100% vocationally disabled due to his
7
work injury considering his age, educational-vocational profile, lack of transferable job
skills, permanent restrictions, and job opportunities in the local labor market. Dr. Hankins
determined that Mr. Barker had a 98-99% permanent vocational disability. Dr. Hankins
limited Mr. Barker’s job opportunities to part-time positions up to 6 hours per day as an
unarmed gate guard with no requirement for emergency response or property patrol.
Although Dr. Hankins contended Mr. Barker might qualify for 3 jobs in the local
labor market, Dr. Hankins conceded on cross-examination that the jobs as described
exceeded Mr. Barker’s restrictions or education.
The Court concludes the preponderance of the evidence shows Mr. Barker is
permanently and totally disabled from an occupation that brings him an income. The Court
considered his medical impairment, significant permanent restrictions, and high fall risk,
as well as his age, lack of a high school diploma or GED, and the lack of job opportunities
in the local labor market within his restrictions.
Further, because Mr. Barker was injured fewer than 5 years before his eligibility for
full Social Security retirement benefits, his permanent total disability award is limited to
260 weeks under section 50-6-207(4)(A)(i).
The parties agreed Mr. Barker was receiving old-age Social Security retirement
benefits in the amount of $1,297.00 per month, or $299.30 per week. Applying section 50-
6-207(4)(A)(i), Loudon County is entitled to an offset of 50% of the weekly amount, or
$149.65. This reduces Mr. Barker’s weekly compensation rate to $599.93. Therefore, Mr.
Barker’s award of permanent total disability benefits is $155,981.80. Loudon County shall
pay benefits accrued from Mr. Barker’s date of maximum medical improvement through
the date of this order, or 47 weeks at $599.93, for a total lump-sum payment of $28,196.71.
After, Loudon County shall pay periodic payments until the value of 260 weeks, less his
attorney fees, which have been paid.
Attorney Fees
Under section 50-6-226(a)(1), the Court may award attorney fees not to exceed
20% of the employee’s award. The Court finds that this case required considerable time
and expertise on the part of all counsel. A fee of 20% is statutorily authorized and
customary in cases brought before this Court. Therefore, the Court commutes 20% of the
permanent disability award for Mr. Barker’s attorney’s fee, or $31,196.36. Loudon
County’s attorney’s fees, as they exceed $10,000, are similarly approved.
After subtracting Mr. Barker’s accrued benefits and attorney’s fees, Mr. Barker is
entitled to periodic permanent total disability benefits at the weekly rate of $453.47 until
paid in full.
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Discretionary Costs
Finally, Mr. Barker requested reimbursement of discretionary costs totaling
$4,745.35:
- Fact-witness discovery deposition transcripts $550.10
- Michael Galloway transcript $467.15
- Dr. Bolt deposition fee $1,050.00
- Dr. Bolt deposition transcript $474.60
- Michael Galloway court appearance fee $1,700.00
- Compensation Hearing court reporter split fee $503.50
Section 50-6-239(c)(8) authorizes a trial court, in its discretion, to assess costs
including reasonable fees for depositions of medical experts against the employer upon
adjudication of the claim as compensable. Additionally, Tennessee Rules of Civil
Procedure 54.04(2) (2024) allows the trial court to award reasonable and necessary
discretionary costs for court reporter expenses for depositions or trials, and expert witness
fees for depositions or trials.
Here, the Court holds that Mr. Barker is entitled to discretionary costs under Rule
54.04(2) and section 50-6-239 for his court reporter’s fees and expert witness testimony
fees. Loudon County shall reimburse Mr. Barker’s discretionary costs in the amount of
$4,745.35.
IT IS, THEREFORE, ORDERED as follows:
1. Loudon County shall furnish medical care for John Barker’s injuries as required by
Tennessee Code Annotated section 50-6-204. Dr. Bolt remains the authorized
treating physician.
2. Loudon County shall pay additional temporary disability benefits from September
29, 2023, to January 8, 2024, in the amount of $8,260.59. Mr. Barker’s attorney is
entitled to fees of 20% from this award, or $1,652.12.
3. Loudon County shall pay Mr. Barker accrued permanent total disability benefits in
the amount of $28,196.71.
4. Mr. Barker’s counsel shall be paid a 20% attorney’s fee under 50-6-226(a) or
$31,196.36, in a lump sum.
5. Loudon County shall pay Mr. Barker periodic permanent total disability benefits
beginning December 5, 2024, and continuing for 213 weeks at $453.47 per week.
6. Loudon County shall pay Mr. Barker’s discretionary costs of $4,745.35.
9
7. Loudon County shall pay the $150.00 filing fee within 5 business days of entry of
this order, for which execution may issue.
8. Loudon County shall file a Statistical Data Form (SD-2) within 10 business days of
entry of this order.
9. Unless appealed, this Order shall become final 30 calendar days after entry.
ENTERED December 6, 2024.
_____________________________________
JUDGE PAMELA B. JOHNSON
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. James Reed Deposition with exhibits
2. Elizabeth Schaffer Deposition with exhibits
3. Dr. Patrick Bolt Deposition
4. Michael Galloway Vocational Report with CV
5. Medical Records with Table of Contents
6. Wage Statement
7. Job Offers
8. Dylan Fehriback Rule 72 Declaration with exhibits
9. Bentley Hankins Vocational Report
10. Employer’s Responses to Request for Admissions
11. First Report of Work Injury
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CERTIFICATE OF SERVICE
I certify that a copy of the order was sent as shown on December 6, 2024.
Name Mail Email Service sent to:
Andrew J. Roberto, X aroberto@brownandroberto.com
Employee’s Attorney
Houston Gunn, X hmgunn@mijs.com
Employer’s Attorney
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
11
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.
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.
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.