The opinion
FILED
June 4, 2015
T '\OC OliRTOF
WORKERS' C OMPE~ SA TI O~
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Time: 7: 57 A~l
COURT OF WORKERS' COMPENSATION CLAIMS
DIVISION OF WORKERS' COMPENSATION
Artie Pierce, ) DOCKET#: 2014-05-0034
Employee, ) STATE FILE#: 90713/2014
v. ) DATE OF INJURY: September 25, 2014
Metro Industrial, ) Chief Judge Switzer
Employer, )
and, )
Star Net/Key Risk )
Management Services, LLC, )
Carrier/TPA. )
EXPEDITED HEARING ORDER
THIS CAUSE came before the undersigned Workers' Compensation Judge on May
19, 2015, upon the Request for Expedited Hearing filed by Employee, Artie Pierce, on
January 7, 2015, with the Tennessee Court of Workers' Compensation Claims, Division of
Workers' Compensation, pursuant to Tennessee Code Annotated section 50-6-239 to
determine if Employer, Metro Industrial (Metro), is obligated to continue medical benefits
and initiate past and ongoing temporary partial disability benefits. Considering the positions
of the parties, the applicable law and all of the evidence submitted, the Court finds that Mr.
Pierce is entitled to the requested benefits at this time.
ANALYSIS
Issues
1. Whether Mr. Pierce sustained an injury that arose primarily out ofand in the course
and scope of employment with Metro;
2. Whether Employee is entitled to an evaluation by another physician; and,
3. Whether Employee is entitled to any past or future temporary total disability (TTD)
benefit/.
1 The DCN listed the adequacy of Mr. Pierce's notice of injury to Metro as an additional issue. Metro withdrew the
notice issue at the Expedited Hearing.
1
Evidence Submitted
The Court admitted the following documents into evidence:
Ex. 1: Medical records of Artie Pierce
o Complete Express Care
o Tennessee Orthopaedic Alliance
Ex. 2: Affidavit of Artie Pierce, with six (6) Attachments
Ex. 3: Affidavit of Thomas Ashe, Jr.
Ex. 4: Three (3) First Reports of Injury
Ex. 5: E-mail from Yulanda Tate to J.J. Moye, et. al, Metro Industrial, Oct. 13, 2014
Ex. 6: E-mail from Larry Clark, Tepro, to Debbie Faulkner, Tepro, Oct. 15, 2014
Ex. 7: Metro Industrial Questionnaire, completed by Britney Robinson.
The Court designated the documents below as the technical record:
• Petition for Benefit Determination, December 4, 2014
• Dispute Certification Notice, January 7, 2015
• Request for Expedited Hearing, January 7, 2015
• Metro's Witness List, May 15, 2015.
The Court considered any facts asserted within these pleadings as allegations unless
substantiated by evidence presented at the hearing.
The following witnesses provided in-person testimony: Mr. Pierce and Ms. Robinson.
The parties stipulated to the following facts:
1. Mr. Pierce's compensation rate is $277.09.
2. The date of injury is September 25, 2014.
3. Metro offered a panel on November 6, 2014, from which Mr. Pierce chose
Complete Express Care as his authorized treating provider.
4. Dr. James Rungee saw Mr. Pierce on December 4, 2014, at which time Dr.
Rungee ordered Mr. Pierce to undergo a functional capacity evaluation (FCE).
5. Mr. Pierce has not worked since October 10, 2014.
History of Claim
Mr. Pierce is a thirty-eight (38) year-old resident ofFranklin County, Tennessee. He
worked for Metro Industrial, a staffing agency, which assigned him to Tepro, Inc.
2
Mr. Pierce testified that, on September 25, 2014, he worked in Department L42L,
packing parts. Mr. Pierce testified that, at 4:25 a.m., he grabbed an armful of parts and
placed them on his shoulder. As he turned, twisted and took a couple of steps, a sign fell
over on him, pulling him backward. The sign made contact with the left side of his back, hip
and shoulder. It pushed him into a crate, injuring Mr. Pierce's left arm and back. He gave
immediate verbal notice of the injury. Thomas Ashe, a co-worker, testified in his affidavit
(Ex. 3), in relevant part: "On the 25 1h, the sign displaying SOP2 fell over due to parts being
place (sic) on it and fell into Artie Pierce knocking him back and causing him to hit his back
and elbow on the finish crate of parts."
Mr. Pierce testified that, over the coming days, he continued to work despite
experiencing pain and waited for Metro to provide him with paperwork that would enable
him to seek medical care. On October 10, 2014, he left work after 1. 7 5 hours (Ex. 2, Attach.
1). He claims that e-mails dated October 13, 2014, and October 15, 2014, which were
circulated between staff at Metro and Tepro, confirm that he remained employed with Metro
after that date because they do not mention his termination3 (Ex. 2, Attachs. 2 and 3, and Exs.
5 and 6). Mr. Pierce completed a statement on November 6, 2014, where he listed three
witnesses to the accident (Ex. 2, Attach. 6). However, Metro's Questionnaire, completed by
Ms. Robinson, asks whether there are any witnesses, to which she wrote, "N/A" (Ex. 2,
Attach. 1; Ex. 7). The Questionnaire additionally asks if light-duty work is available, to
which Ms. Robinson wrote, "N/A." !d.
On cross-examination, Mr. Pierce reviewed a recap of his hours worked from
September 16 through October 10, 2014 (Ex. 2, Attach. 2). Mr. Pierce testified that he
worked all of his scheduled hours from the date of injury, September 25, 2014, until October
10,2014. Mr. Pierce stated that he is aware ofMetro's "no-call/no-show" policy, as well as
its point system for attendance. Mr. Pierce said that he told two Tepro employees that he was
leaving on October 10,2014. Those employees stated they would inform Metro. Mr. Pierce
testified that, after Friday, October 10,2014, he contacted a Metro employee, Yulanda Tate,
on the following workday, Monday, October 13,2014, to tell her that he would not be able to
work that day. Her response was "OK," and that she would speak to Larry Clark and Ms.
Robinson in Human Resources about the situation. Mr. Pierce did not hear back from her,
nor did anyone else from Metro follow up with him.
Ms. Robinson is branch manager for Metro. Her duties include oversight of human
resources and workers' compensation matters. Ms. Robinson testified that she received the
e-mail from Ms. Tate on Monday, October 13, 2014 (Ex. 5), which was the first notice she
received regarding Mr. Pierce's injury. She testified that she realized Mr. Pierce was no
longer at Tepro on October 13,2014, when she pulled his timecard and saw that his last day
2
Mr. Pierce explained during his testimony that "SOP" is an acronym for "Standard Operating Procedures."
3
Although Mr. Pierce made this statement during his testimony, the Court considers it as argument.
3
worked was October 10, 2014. She proceeded to investigate the injury. On October 16,
2014, Debbie Faulkner from Tepro forwarded an e-mail to her and others about the injury
(Ex. 2, Attach. 3; Ex. 6). Ms. Robinson said that Tepro has a policy that an accident report
must be completed on the same day that an injury is reported, and that Mr. Pierce did not
provide an accident report.
Ms. Robinson testified that she completed the Metro Industrial Questionnaire on
November 6, 2014 (Ex. 2, Attach. 1; Ex. 7). With regard to question #13, which inquires
about the availability oflight duty, Ms. Robinson testified that she wrote '"N/A" because at
that time, she did not know Mr. Pierce's restrictions since Mr. Pierce had yet to see a doctor.
Concerning question #14's inquiry about '"lost time," she testified that Mr. Pierce missed
work on Saturday and Sunday, September 27 and 28,2014, when he was scheduled to work.
However, ifthey were '"short-staffed" or "did not have enough numbers," he might not have
had tq work those two days. She later testified that these "missed" days were insignificant.
The Questionnaire additionally states, at the bottom of the page, "VERY QUESTIONABLE
CLAIM!!" (emphasis in original). Ms. Robinson testified that Metro would have had a job
within the restrictions that Mr. Pierce provided on November 6, 2014.
The no-call/no-show policy requires Metro employees to call in twenty-four to forty-
eight (24-48) hours in advance of expected absences. Three (3) no-cal1/no-shows are
grounds for automatic termination. Regarding application of this policy to Mr. Pierce, Ms.
Robinson explained that he received two no-call/no-show points for his absences on Saturday
and Sunday, October 11 and 12, 2014. Friday, October 10, 2014- the day he worked 1.75
hours -also counted as a no-call/no-show. Metro's policy is to use the last date an employee
was at the workplace as the date of termination, regardless of whether the decision to
terminate is made after that date.
On cross-examination, Ms. Robinson said that Tepro has some departments that work
seven days per week. Regarding L42L working on Saturday and Sunday, October 11 and 12,
20 14, she testified that, "I heard that that department did work that day. We do have on-sites
who tell us when those people work." She said that, even if it was not on the schedule board
that employees must work, if they do not call in, Metro considers that failure a no-call/no-
show. Regarding the decision to terminate Mr. Pierce after October 15,2014, when he gave
notice, she stated:
We were notified that it was not recordable, as you would say,
which means that they don't know if it was on the record or off
the record. So, as the employee- employer- we've got from
HR, yes, we have to terminate you. Because at that time, they
do not know if you were happened (sic) at work or somewhere
else. So, at that time, yes, we had to let you go.
4
Ms. Robinson agreed that she began her investigation on Monday, October 13, 2014.
On November 6, 2014, Metro offered a panel, from which Mr. Pierce chose Complete
Express Care as his authorized treating provider (See generally, Ex. 1, pp. 2-8). Karen Chiu,
APN, placed restrictions of "no lifting, pinching, twisting, carrying with left hand for one
week. Also no lifting due to back," and, "No lifting greater than 15 [fifteen] pounds for a
week." !d.
Mr. Pierce received authorized care from Dr. James Rungee ofTennessee Orthopaedic
Alliance on December 4, 2014 (See generally, Ex. 1, pp. 9-14). A case manager also
attended the appointment (Ex. 1, p. 9). Dr. Rungee ordered an FCE and placed Mr. Pierce on
lifting restrictions of no more than ten ( 10) pounds "until we see him back" (Ex. 1, p. 11 ).
According to Mr. Pierce, he attempted the FCE, but was unable to perform it due to high
blood pressure. Mr. Pierce testified that the carrier declined to pay for a physician to
examine him and potentially clear him to undergo the FCE. He has not seen a physician for
this purpose out of his own pocket because his truck was repossessed, he sold his
grandfather's ring and he is behind on his mortgage. Mr. Pierce further testified that, after
receiving restrictions from Complete Express Care and Dr. Rungee, he gave copies of the
restrictions to Ms. Robinson. Since he has not completed the FCE, he has not returned to Dr.
Rungee.
Mr. Pierce's Contentions
Mr. Pierce asserts that he sustained an injury that arose primarily out of and in the
course and scope of employment with Metro. Metro should be liable for the expenses of the
blood pressure evaluation and any treatments associated with it to permit him to perform the
FCE. Mr. Pierce additionally contends he is entitled to past and continuing disability
benefits. Because Metro wrongfully terminated him, he is eligible for temporary disability
benefits.
Metro's Contentions
Metro asserts that Mr. Pierce violated its attendance policy and its October 10, 2014
termination was for cause under the no-call/no-show policy. Therefore, Mr. Pierce is not
eligible for past temporary partial disability benefits. Longstanding, binding caselaw and
persuasive authority- in particular, the trial court's opinion in Ricketts v. Dana, No. 2014-
07-0024 (Tenn. Ct. Workers' Comp. Claims, March 23, 2015)- support its position.
5
Findings of Fact and Conclusions of Law
Standard Applied
The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially, and in accordance with basic
principles of statutory construction favoring neither the employee nor employer. Tenn. Code
Ann.§ 50-6-116 (2014). Tennessee Code Annotated section 50-6-239(c)(6) provides that,
"[u]nless the statute provides for a different standard of proof, at a hearing the employee shall
bear the burden of proving each and every element of the claim by a preponderance of the
evidence." Tenn. Code Ann. § 50-6-239(c) (20 14 ). A different standard of proof exists for
the issuance of interlocutory orders at expedited hearings than the standard of proof required
at compensation hearings. McCord v. Advantage Human Resourcing, No. 2014-06-0063
(Tenn. Work. Comp. App. Bd., March 27, 2015). A workers' compensation judge may enter
an interlocutory order for medical or temporary benefits upon a determination that the injured
employee would likely prevail at a hearing on the merits. Tenn. Code Ann.§ 50-6-239(d)(l)
(2014); cf McCall v. Nat'! Health Care Corp., 100 S.W.3d 209, 214 (Tenn. 2003).
Factual Findings
On September 25, 2014, Mr. Pierce sustained an injury by accident arising primarily
out of and in the course and scope of his employment. Metro's termination ofMr. Pierce was
improper under its standards. Mr. Pierce received authorized medical treatment for the injury
on November 6, 2014, and December4, 2014. Dr. Rungee recommended an FCE, which Mr.
Pierce was unable to perform due to his hypertension. Mr. Pierce must obtain clearance from
a family practitioner regarding his blood pressure to perform the FCE.
Application ofLaw to Facts
Mr. Pierce sustained an injury that arose primarily out of and in the course
and scope of his employment with Metro.
The Workers' Compensation Law defines "injury" and "personal injury" to mean an
injury by accident "arising primarily out of and in the course and scope of employment .... "
Tenn. Code Ann.§ 50-6-102(13)(A) (2014). An injury is "accidental" only ifthe injury is
caused by a specific incident, or set of incidents, arising primarily out of and in the course
and scope of employment, and is identifiable by time and place of occurrence[.] !d. An
injury "arises primarily out of and in the course and scope of employment" only if it has been
shown "by a preponderance of the evidence that the employment contributed more than fifty
percent (50%) in causing the injury, considering all causes[.]" Tenn. Code Ann. § 50-6-
102(13)(B) (2014).
6
The Tennessee Supreme Court has consistently held that, in order to qualifY as a
compensable workers' compensation claim, an injury must both "arise out of' and occur "in
the course of' employment:
The phrase "in the course of' refers to time, place, and
circumstances, and "arising out of' refers to cause or origin.
"[A]n injury by accident to an employee is in the course of
employment if it occurred while he was performing a duty he
was employed to do; and it is an injury arising out of
employment if caused by a hazard incident to such
employment." Generally, an injury arises out of and is in the
course and scope of employment if it has a rational connection
to the work and occurs while the employee is engaged in the
duties ofhis employment.
Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008) (quoting Orman v.
Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991)).
In this case, Mr. Pierce credibly testified that, on September 25,2014, while working
at Tepro, he grabbed an armful of parts and turned when a sign fell on him, pushing him into
a crate and injuring his left arm and back. He offered sufficient detail ofthe circumstances
of the accident, including the time, 4:25 a.m., and place, Department L42L. The accident
occurred while Mr. Pierce was performing a duty he was employed to do: pack parts. The
injury arose out of his employment because a sign describing how employees are to perform
their work accidentally falling on an employee is a hazard incident to employment in the
manufacturing setting. Moreover, a rational connection exists between the type of accident
he described and Mr. Pierce's workplace, and it occurred while Mr. Pierce was engaged in
his duties of employment. Mr. Ashe's account of the accident in his affidavit substantiates
Mr. Pierce's version of the injury. Further, Metro offered no countervailing proof of Mr.
Pierce's description of the accident. At this interlocutory stage of the proceedings, Mr.
Pierce has satisfied his burden of proof regarding the occurrence of an injury and the Court
concludes that he would likely prevail on the issue at a hearing on the merits.
Mr. Pierce is entitled to an evaluation by another physician.
The Workers' Compensation Law states that the employer shall furnish, free of charge
to the employee, such medical treatment as ordered by the attending physician made
reasonably necessary by accident. Tenn. Code Ann.§ 50-6-204(a)(l)(A) (2014). The statute
additionally states that any treatment recommended by a physician selected from a panel or
by referral, if applicable, "shall be presumed to be medically necessary for treatment of the
injured employee." Tenn. Code Ann. § 204(a)(3)(H)(2014).
7
In this case, the parties stipulated that Mr. Pierce selected Complete Express Care
from a panel, whose providers apparently referred him to TOA4 • Dr. Rungee opined that an
FCE is necessary to determine "just what he can or cannot do" (Ex. 1, p. 11 ). Metro offered
no proof to rebut Dr. Rungee's opinion on the need for an FCE. Mr. Pierce testified that, due
to a high blood pressure reading when he appeared for the FCE, he must obtain clearance
from a family practice physician as a prerequisite to undergo the FCE, and that the carrier
declined to authorize such clearance. Metro offered no contrary proof.
It is well established in Tennessee Workers' Compensation Law that an employer
takes an employee as he finds him. See Coleman v. Coker, 321 S.W.2d 540, 541 (Tenn.
1959). While Mr. Pierce's hypertension is not a part of the compensable claim, medical
clearance for the condition is essential to completion of the FCE and without it, his claim is
stalled.
In Rogers v. Shaw, 813 S.W.2d 397 (Tenn. 1991), the Tennessee Supreme Court
touched on the issue of treatments unrelated to the workplace accident, but necessary for
treatment of the work injury. In Rogers, an employee developed lung cancer caused by
asbestosis and cigarette smoking. The treating physician determined the asbestosis is related
to his work as a pipe fitter. !d. at 398. The treating physician determined that he could only
cure the cancer by completely removing the employee's left lung. !d. In addition to cancer,
the employee also had a significant, but non-work-related, arterial blockage. !d. The treating
physician determined that he could not perform the lung surgery without first performing a
coronary bypass. !d. Unfortunately, the employee suffered a stroke during the bypass
surgery and died several weeks later. !d. The trial court denied the death claim brought by
the employee's widow. !d. at 399. She appealed the decision. Although the stroke occurred
during surgery of a non-work related condition, the Supreme Court reversed the trial court's
decision. !d. at 400. The Court reasoned that because the bypass surgery was a prerequisite
to removing the lung, "the bypass surgery was reasonably required to treat the occupational
disease, the lung cancer." !d.
Here, Mr. Pierce needs a medical release concerning his hypertension so that he can
complete an FCE. Although the condition is not directly related to his work-related arm and
back injuries, it cannot be forgotten that Mr. Pierce would not need an FCE but for the work-
related accident. Furthermore, Dr. Rungee is unable to place Mr. Pierce at Maximum
Medical Improvement until Mr. Pierce completes the FCE so that he can determine whether
to impose permanent restrictions. Under these circumstances, the Court finds that the
medical release is reasonably required for provision ofthe FCE. This shall be accomplished
by Metro providing Mr. Pierce a panel of appropriate physicians to evaluate his fitness to
participate in an FCE despite his hypertension.
4
The Complete Express Care records do not indicate that providers there made the referral, but the case manager's
presence at the TOA appointment suggests that is the case.
8
Mr. Pierce is entitled to past and future temporary partial disability benefits.
As an initial matter, with regard to the issues presented in this case, this Court is
mindful of the requirement of Tennessee Code Annotated section 50-6-239(b)(l) that,
"unless permission has been granted by the assigned workers' compensation judge," only
issues that have been certified by the mediator within a DCN may be presented to a judge for
adjudication; see also, LaToya Dorsey v. Amazon. com, Inc., No. 2015-01-0017 (Tenn. Work.
Comp. Bd., May 14, 2015). The DCN in this matter lists Mr. Pierce's entitlement to
temporary total disability benefits, rather than temporary partial disability benefits. For the
following reasons, the Court finds it appropriate to rule upon the issue at this time.
At the hearing, the parties agreed that Mr. Pierce's entitlement to "past or future
temporary total disability benefits or temporary benefits" was an issue for adjudication
(emphasis added). Metro's Counsel did not object on the basis that it had no knowledge that
Mr. Pierce seeks temporary partial disability benefits. In fact, Metro's Counsel
acknowledged that temporary partial disability benefits is the type of benefit appropriate
under the circumstances when Counsel contended in closing arguments that Mr. Pierce is
ineligible for them. Mr. Pierce is self-represented and may or may not be familiar with the
distinction between temporary total disability benefits versus temporary partial disability
benefits. This Court holds him to the standards of an attorney; however, in this Court's
experience, even seasoned lawyers occasionally misunderstand the distinction between the
two types of temporary disability benefits. Further, at the time of the issuance of the DCN,
neither party was represented by counsel. The Court finds that the parties did not have
knowledge of the nuanced difference between temporary total and partial disability at that
time and they could not have known of the issue despite reasonable investigation. See Tenn.
Code Ann. § 50-6-239(b)(2)(A) (2014). The Court additionally finds that prohibiting
presentation of the issue would result in substantial injustice to the petitioning party, in light
of the parties' stipulation that Mr. Pierce has not worked since October 10, 2014, and Mr.
Pierce's testimony that he is experiencing financial hardship. See Tenn. Code Ann.§ 50-6-
239(b)(1)(B). At the Expedited Hearing, both parties were fully heard on the issue. Neither
party is prejudiced by the Court's clarification on the record of, and the parties' agreement to,
the type of temporary disability benefit Mr. Pierce sought. The Court finds adequate grounds
to grant permission to the parties to present the temporary partial disability issue to the Court.
Addressing temporary partial disability benefits, the Workers' Compensation Law
provides that, "In all cases of temporary partial disability, the compensation shall be sixty-six
and two-thirds percent (66 2/3 %) of the difference between the average weekly wage of the
worker at the time of the injury and the wage the worker is able to earn in the worker's
partially disabled condition." Tenn. Code Ann. § 50-6-207(2)(A) (2014). An employee is
entitled to receive temporary partial disability benefits, pursuant to Tennessee Code
Annotated section 50-6-207(2) (2014), when "the temporary disability is not total." Stem v.
9
Thompson Servs., No. M2010-01566-WC-R3-WC, 2011 Tenn. LEXIS 742, 27 (Tenn.
Workers' Comp. Panel, July 26, 2011).
An injured employee is not entitled to temporary disability benefits if terminated
for cause and the employer was reasonably capable of providing modified duty within
the restrictions assigned. An employer should be permitted to enforce workplace rules
without being penalized in a workers' compensation case. Carter v. First Source Furniture
Group, 92 S.W.3d 367, 368, (Tenn. 2002). Entitlement to temporary disability benefits
requires proof that the employee's inability to work is related to a compensable injury, and
concludes when the injured employee reaches MMI. Simpson v. Satterfield, 564 S.W.2d 953,
955 (Tenn. 1978). See also, Gray v. Cullom Machine Tool and Dye, Inc., 152 S.W.3d 439
(Tenn. 2004); Gluck Brothers, Inc. v. Coffey, 431 S.W.2d 756 (Tenn. 1968).
In the present case, Mr. Pierce's inability to work is related to the injury he sustained
while working for Metro, which this Court has found compensable at this time. APN Chiu
and Dr. Rungee placed restrictions upon Mr. Pierce. Further, Ms. Robinson testified that
Metro's policy is to accommodate workers with restrictions and that Metro could have
accommodated Mr. Pierce. Mr. Pierce offered no proof to contradict her testimony on that
particular point. Thus, the question is whether Metro terminated Mr. Pierce for cause, and,
specifically, whether it demonstrated that Mr. Pierce's termination was proper.
The Court finds that Mr. Pierce's termination did not involve a breach of Metro's
reasonable expectations and the termination does not appear reasonably appropriate. See,
Carter, 92 S.W.3d at 371-72.
By Ms. Robinson's testimony, Metro arbitrarily applied its no-call/no-show policy.
According to the Metro Industrial Questionnaire (Ex. 2, Attach. 6; Ex. 7), Mr. Pierce
"missed" work on September 27 and 28, 2014, a weekend. Ms. Robinson testified that if
they were "short-staffed" or "did not have enough numbers," he might not have had to
work those two days. She expressly stated that these dates were not significant. Ms.
Robinson clearly did not know whether Mr. Pierce worked on those days or not. Similarly,
on October 11 and 12, 2014- also a weekend- it appears that Mr. Pierce did not call in.
Ms. Robinson articulated a rather odd "rule": that employees must call in even if they are
not scheduled to work. She offered no written documentation verifying or explaining this
standard. It was only on cross-examination that Ms. Robinson testified: "I heard that that
department did work that day. We do have on-sites who tell us when those people work."
The Court attaches particular significance to the fact that Ms. Robinson did not offer
details regarding her receipt of this information. She failed to convey from whom, when
or by what means of communication she received the information and offered no written
evidence that Tepro conducted work on Mr. Pierce's line that weekend. The Court views
this as pure speculation on her part and as such, finds her testimony to be without
credibility on this issue. This is reinforced by a glance at an hours recap for Mr. Pierce
10
(Ex. 2, Attach. 5), which shows that Mr. Pierce worked only Monday through Friday
hours.
Mr. Pierce's testimony that he reported his injury immediately upon its occurrence and
that he waited for weeks for Metro to advise how he should proceed is unrefuted and
credible. He reported pain related to a work injury on October 10, 2014, the day he left work
early. Metro failed to prove that Mr. Pierce missed required work on October 11 and 12,
2014. Hence, the Court concludes that Mr. Pierce's discharge was unreasonable and Mr.
Pierce is likely to prevail at a hearing on the merits on this issue.
Metro's counsel argued that longstanding, binding caselaw supports its position
regarding the appropriateness ofthe discharge, but counsel failed to develop this argument by
referencing a case presenting similar facts and law. With regard to the case cited by Metro's
counsel, Ricketts v. Dana, No. 2014-07-0024 (Tenn. Ct. Workers' Comp. Claims, March 23,
2015), this Court notes that a determination regarding the breach of an employer's
reasonable expectations and the appearance of reasonable appropriateness requires a highly
fact-specific inquiry. In Ricketts, the employer terminated the employee for falsification of
company documents and for sleeping on the job. In the present case, the termination is based
on failure to call in when Metro offered no evidence that Mr. Pierce was required to work on
the days relied upon by Metro, except for an "I heard" statement.
In sum, but for the unreasonable discharge, Metro would have provided Mr. Pierce
work within his restrictions. Since those restrictions remain the only proof of Mr. Pierce's
physical restrictions, Mr. Pierce is entitled to past temporary partial disability benefits from
November 7 to November 13,2014, and December 5, 2014, through the present, a period of
one-hundred eighty-eight (189) days, or twenty-seven (27) weeks, in the amount of two-
hundred seventy-seven dollars and nine cents ($277 .09) per week or thirty-nine dollars and
fifty-eight cents ($39.58) per day, for a total of seven thousand four-hundred eighty-one
dollars and forty-three cents ($7,481.43). Metro shall continue to pay temporary benefits
until Mr. Pierce is placed at MMI or returns to work.
IT IS, THEREFORE, ORDERED as follows:
1. Metro, or its Carrier shall provide medical care for Mr. Pierce's injuries as required by
Tennessee Code Annotated section 50-6-204, to be initiated by Metro or its carrier
providing a panel of physicians for evaluation and treatment of Mr. Pierce's
hypertension to enable performance of the FCE. Mr. Pierce or the medical providers
shall furnish medical bills to Metro or its carrier for payment.
2. Metro or its carrier shall pay past due temporary benefits in the amount of$7,481.43
for the period ofNovember 7 to November 13,2014, and December 5, 2014, through
June 4, 2015.
11
3. Metro or its workers' compensation insurance carrier shall continue to pay to Mr.
Pierce temporary disability benefits in regular intervals until he is no longer eligible
for those benefits by reaching Maximum Medical Improvement, by returning to work,
or by release without restrictions by the authorized treating physician. Metro's
representative shall notify the Division and Mr. Pierce in writing immediately, and by
filing a Form C-26, of its intent to terminate temporary disability benefits and citing
the basis for said termination.
4. This matter is set for Initial Hearing on July 15, 2015, at 9:30a.m.
5. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven (7) 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 Division by email to
WCCompliance.Program@tn.gov no later than the seventh (7th) business day
after entry of this Order. Failure to submit the necessary confirmation within the
period of compliance may result in a penalty assessment for non-compliance.
6. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615) 253-
1471 or (615) 532-1309.
ENTERED this the 4th day of June, 2015.
Initial Hearing:
An Initial Hearing has been set with Chief Judge Kenneth M. Switzer, Court of
Workers' Compensation Claims. You must dial in at 615-532-9552 or 866-943-0025 toll
free to participate in your scheduled conference.
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.
All conferences are set using Central Time (CT).
Rigbt to Ap peal:
12
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 (7) business days of the
date the Expedited Hearing Order was entered by the Workers' Compensation Judge.
3. Serve a copy of the Request for Appeal upon the opposing party.
4. 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 (10) calendar days of the filing of the Expedited Hearing Notice of
Appeal. Alternatively, the parties may file a statement of the evidence within ten (1 0)
calendar days of the filing of the Expedited Hearing Notice of Appeal. The statement
of the evidence must be approved by the Judge before the record is submitted to the
Clerk of the Appeals Board.
5. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appealing party shall file such position statement with the Court Clerk
within three (3) business days of the filing of the Expedited Hearing Notice of
Appeal, specifying the issues presented for review and including any argument in
support thereof. If the appellee elects to file a response in opposition to the
interlocutory appeal, appellee shall do so within three (3) husiness days ofthe filing of
the appellant's position statement.
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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 June, 2015.
Name Certified First Via Fax Via Email Address
Mail Class Fax Number Email
Artie Pierce, Employee X X piercea rtie3435(ti}yahoo.com
Michael Jones, X m jones(ti}wim berlylawson.com
Employer/Carrier's
attorney
Court of orkers' Compensation Claims
WC.CourtCierk@tn.gov
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