The opinion
FILED
November 17, 2015
I:\ COURT OF
WORKERS ' C0~1PE:'iSATIO:'i
CLADIS
Time: 3:15PM
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT COOKEVILLE BY INTERCHANGE
Ralph Joseph Lallo ) Docket No.: 2015184839
Employee, )
v. ) State File No.: 33804-2015
)
Marion Environmental, Inc. ) Judge Robert Durham
Employer. )
ORDER GRANTING TEMPORARY PARTIAL DISABILITY BENEFITS
THIS CAUSE came to be heard before the undersigned Workers' Compensation
Judge on November 4, 2015, upon the Motion for Temporary Disability Benefits filed by
the Employee, Ralph Joseph Lallo (Mr. Lallo), on September 28, 2015, pursuant to
Tennessee Code Annotated section 50-6-239 (2014) to determine if the Employer,
Marion Environmental, Inc. (Marion), is obligated to provide temporary partial disability
benefits. For the reasons set forth below, the Court finds Mr. Lallo is entitled to
temporary partial disability benefits at this time.
This matter previously came before this Court on Employee's Request for
Expedited Hearing (REH), seeking medical and temporary disability benefits. The Court
conducted an evidentiary hearing on July 21, 20 15, and much of the evidence, as well as
the Court's subsequent Order, concerned Mr. Lallo's separation from Marion and
whether it served to preclude his receipt of temporary partial disability benefits. To the
extent necessary, the evidence presented at the July 21 hearing and the Court's Findings
of Fact and Conclusions of Law from that evidence are incorporated into this Order.
History of Claim
Procedural History
On July 21, 2015, the Court conducted an Expedited Hearing in this matter. Based
on the evidence presented, the Court found Mr. Lallo sustained a compensable injury to
his right upper extremity on April 2, 2015. The Court further found Marion was
obligated to provide Mr. Lallo with medical care for his work-related injury. Marion
1
appealed these findings to the Workers' Compensation Board of Appeals, which affirmed
the Court's decision on September 4, 2015.
In addition to the above findings, the Court further found Marion did not terminate
Mr. Lallo for cause, and his termination would not preclude the receipt of temporary
partial disability benefits. However, the Court did not order Marion to pay disability
benefits because there was insufficient medical evidence to establish the extent of Mr.
Lallo's temporary partial disability. Since the Court did not order disability benefits, the
Board declined to consider the issue of Mr. Lallo's termination.
On September 28, Mr. Lallo filed a Motion for Temporary Partial Disability
Benefits, and Marion requested an in-person hearing. On October 29, the Court ordered
that Mr. Lallo's Motion be heard telephonically pursuant to Rule 0800-02-21-.14(4)
(2015) of the Tennessee Compilation Rules and Regulations because it would be practical
for the fair and effective resolution of the limited issue of temporary partial disability
benefits. (T .R. 1.)
Factual History
On September 28, 2015, in accordance with the Court's Order of July 21, Mr.
Lallo treated with Dr. Donald Huffman, orthopedist, whom he selected from a panel
provided by Marion. (Ex. 1 at 14.) Mr. Lallo told Dr. Huffman that on April 2, 2015, he
felt a pop in his right arm while straining to pull up carpet, and he subsequently felt pain
when extending his arm. Over the next few days, his symptoms improved, but on April
7, he attempted to lift a coworker from behind, and felt renewed pain and popping in the
antecubital fossa of his right arm. Subsequently, he could not use his right arm to lift or
twist items. !d.
On examination, Mr. Lallo complained of persistent right forearm and antecubital
fossa pain as well as tenderness and pain in his right bicep. Dr. Huffman diagnosed Mr.
Lallo with a "disorder of tendon ofbiceps" and recommended physical therapy. !d. at 15.
He released Mr. Lallo to return to work with restrictions of no work above his shoulder,
no gripping or squeezing, and no lifting more than five pounds. !d. at 8. Dr. Huffman
also prepared an "Attending Physician's Report," wherein he opined Mr. Lallo's account
of the incidents on April2 and April 7 were "the only cause of patient's condition." !d. at
11.
Mr. Lallo returned to Dr. Huffman on October 13. He had only undergone one
therapy session and reported no change in his right arm. On exam, Dr. Huffman noted
reduced range of motion and strength in the right arm as well as pain with palpation and
resisted pronation. He recommended continued therapy. !d. at 4-5.
Mr. Lallo last saw Dr. Huffman on October 27. He had yet to undergo any
2
additional therapy, and he stated his symptoms had not improved. Dr. Huffman
recommended Mr. Lallo proceed with therapy, and returned him to modified duty with no
work above shoulder level and no lifting over five pounds. !d. at 1-3.
At the November 4 hearing, Mr. Lallo testified his regular duties with Marion
required significant pushing, pulling, lifting and carrying with both arms. He testified he
made $4,588.33 per month while working for Marion. 1 Since his separation from Marion
on April 22, 2015, he has looked for employment, including registration with Tennessee
Job Services, but received no job offers given the limitations with his right arm.
Mr. Lallo testified that in June 2015, he coordinated a project to tear down the
fire-damaged house of a friend's mother. Mr. Lallo worked for a few days on the project,
operating a track-hoe for approximately thirty-minute intervals. He received
approximately $250.00 for his work. Mr. Lallo testified he has not received any other
income from employment since his separation from Marion.
On cross-examination, Mr. Lallo admitted he worked for Marion for several weeks
in April with restrictions prohibiting the use of his right arm, and Marion accommodated
his restrictions until his separation on April 30. Marion submitted the affidavit of Ellen
Gallant, President of Marion, as its proof. (Ex. 3.) The Affidavit avers Marion
terminated Mr. Lallo for cause, and but for his termination, Marion could and would have
fully accommodated Mr. Lallo's restrictions from Dr. Huffman. !d.
Mr. Lallo contends his injuries and attendant restrictions prevent him from making
the wages he made while employed with Marion, and he is thus entitled to temporary
partial disability benefits. He further contends Marion terminated his employment
without good cause; therefore, his termination does not preclude receipt of temporary
partial disability benefits.
Marion counters that it terminated Mr. Lallo for cause, and had it not been for his
termination, Marion would have accommodated Dr. Huffman's physical restrictions. As
a result, it does not owe any temporary partial disability benefits. Furthermore, Marion
asserts Mr. Lallo engaged in employment activities following his separation, thus
establishing his restrictions do not prevent him from earning income equal to his wages
from Marion.
Findings of Fact and Conclusions of Law
The Workers' Compensation Law shall not be remedially or liberally construed in
1
At the July 21 evidentiary hearing, the parties stipulated that the C-42 Wage Statement filed by Marion (attached
hereto as Ex. 4) is an accurate reflection of the wages paid by Marion to Mr. Lallo for the weeks prior to his injury
on April2, 2015. Based on the wage statement, the Court calculates Mr. Marion's average weekly wage to be
$1,044.05, giving him a compensation rate of$696.03.
3
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). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass 'n, 725 S.W.2d 935, 937 (Tenn. 1987); 2 Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element
of his or her claim by a preponderance of the evidence in order to obtain relief at an
expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27,
20 15). At an expedited hearing, an employee has the burden to come forward with
sufficient evidence from which the trial court can determine that the employee is likely to
prevail at a hearing on the merits. !d.
In its August 7 Order, the Court held that Marion failed to establish "(1) that the
actions allegedly precipitating the employee's dismissal qualified as misconduct under
established or ordinary workplace rules and/or expectations; and (2) that those actions
were, as a factual matter, the true motivation for the dismissal." (T.R. 4 at 12, quoting
Ingram v. Heads Up Cutting Ctr., No. M2012-00464-WC-R3-WC, 2013 Tenn. LEXIS
338, at *20 (Tenn. Workers' Comp. Panel Apr. 10, 2013)); see also Durham v. Cracker
Barrel Old Country Store, Inc., No. E2008-00708-WC-R3-WC, 2009 LEXIS 3, at *9
(Tenn. Workers' Comp. Panel Oct. 22, 2008).
In the November 5 hearing, Marion provided no additional substantive evidence
regarding the grounds for Mr. Lallo's separation. Thus, the Court remains unpersuaded
by Marion's argument, and reiterates its fi~ding set out in the August 7 Order that Marion
failed to establish it terminated Mr. Lallo for misconduct, and his separation from Marion
does not preclude his receipt of temporary partial disability benefits. See T.R. 4 at 13.
In the August 7 Order, the Court denied Mr. Lallo's request for temporary partial
disability benefits because the medical proof only established six days of partial
disability. (T.R. 4 at 13.) On September 27, Dr. Huffman placed substantial restrictions
on Mr. Lallo's ability to use his right arm, and he is currently under restrictions of no
work above his shoulder and lifting no more than five pounds with his right arm. (Ex. 1
at 1-3.)
Tennessee law provides that an employer must pay temporary disability benefits
2
The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July I, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
4
until the employee reaches maximum medical improvement so long as the employee can
prove an inability to work due to a compensable injury. Simpson v. Satterfield, 564
S.W.2d 953, 955 (Tenn. 1978); see also Gray v. Cullom Machine Tool and Die, Inc., 152
S.W.3d 439, 443 (Tenn. 2004); Gluck Brothers, Inc. v. Coffey, 431 S.W.2d 756, 759
(Tenn. 1968). Temporary 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. Williams v. Saturn Corp., No. M2004-0 1215-WC-R3-CV, 2005
Tenn. LEXIS 1032, at *6-7 (Tenn. Workers' Comp. Panel Nov. 15, 2005). Tennessee
Code Annotated section 50-6-207(2)(A) (2014) 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."
In Williams, the employee could not return to work for the employer due to the
physical restrictions mandated by her injury. Williams, supra, at *8. The Supreme Court
found the wage the employee could earn in her restricted state was effectively zero; thus,
she was entitled to temporary partial disability benefits. !d. at *9. Mr. Lallo worked for a
couple of days over the summer driving a track-hoe for thirty-minute intervals.
Nevertheless, the Court finds the physical restrictions imposed for two weeks by Dr.
Haslam in April, and the restrictions imposed by Dr. Huffman beginning September 27,
render him unable to find meaningful employment outside the accommodations provided
by Marion prior to his separation. As a result, he is entitled to temporary partial disability
benefits. !d.
Tennessee Code Annotated section 50-6-205(a) 2014 provides:
No compensation shall be allowed for the first seven (7) days of disability
resulting from the injury, excluding the day of injury, except the benefits
provided for in § 50-6-204, but if disability extends beyond that period,
compensation shall commence with the eighth day after the injury. In the
event, however, that the disability from the injury exists for a period as long
as fourteen ( 14) days, then compensation shall be allowed beginning with
the first day after the injury.
In April, Dr. Haslam restricted Mr. Lallo to no use of his right arm for two weeks,
but Marion's accommodations of this restriction allowed Mr. Lallo to work eight days
prior to his separation on April30. (T.R. 4 at 13.) Thus, Mr. Lalla's work injury resulted
in temporary partial disability for six days after his separation. On September 27, Dr.
Huffman placed substantial restrictions on Mr. Lalla's use of his right arm that rendered
him partially disabled, and those restrictions are ongoing. (Ex. 1 at 1-3.) As a result, Mr.
Lallo' s disability has existed for more than fourteen days, thus entitling him to temporary
disability benefits for the period of May 1 through May 6 as well as September 27
through the present and ongoing. Tenn. Code Ann. 50-6-205(a) (2014).
5
At this time, there is no medical proof establishing Mr. Lallo's disability from
May 7 through September 26. As a result, the Court cannot award temporary benefits for
that period, although the Court will reconsider the issue should the parties obtain
additional evidence.
IT IS, THEREFORE, ORDERED as follows:
1. Marion shall pay Mr. Lallo past temporary partial disability benefits from May 1
through May 6, 2015, and September 28, 2015, through the present, at a ·
compensation rate of $696.03 per week, for a total of $5,667.67. Marion shall
continue to pay temporary partial disability benefits to Mr. Lallo at a
compensation rate of $696.03 in accordance with Tennessee Code Annotated
section 50-6-207 (2014) until Mr. Lallo reaches maximum medical improvement
or is able to return to work.
2. Unless interlocutory appeal of the Order Granting Temporary Partial
Disability Benefits 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) (2014). 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 may result in a
penalty assessment for non-compliance.
3. 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 17th day of November, 2015.
6
Right to Appeal:
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 business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of
Indigency in accordance with this section shall result in dismissal of the
appeal.
5. 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 calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
three business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
7
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within three business days of the filing of the appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order should include: (1) a statement summarizing the facts of the
case from the evidence admitted during the expedited hearing; (2) a statement
summarizing the disposition of the case as a result of the expedited hearing; (3) a
statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.
8
APPENDIX
Exhibits:
1. Medical Records of Dr. Donald Huffman;
2. Certificate of Demolition;
3. Affidavit of Ellen Gallant; and,
4. Wage Statement.
Technical Record: 3
1. Employee's Motion for Temporary Partial Disability Benefits;
2. Employer's Response to Motion for Temporary Partial Disability Benefits;
3. Order Setting Telephonic Hearing; and,
4. Expedited Hearing Order Granting Medical Benefits.
3
The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Hearing. The Court considered factual statements in these filings or any attachments to them as allegations unless
established by the evidence.
9
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Order for Temporary Partial
Disability Benefits was sent to the following recipients by the following methods of
service on this the 17th day ofNovember, 2015.
Name Certified Via Via Service sent to:
Mail Fax Email
Mark Rassas X rassaslaw@aol.com
Alex B. Morrison X ABMorrison@mijs.com
~ ~Uk-- '
P~ nny
Sh 1 m, Clerk of Court
Court of \Yt'orkers' Compensation Claims
WC.CourtClerk@tn.gov
10