The opinion
FILED
January 28 , 2016
TN COURT OF
WORKIRS' CQ),fPENS.UIO:'\'
CLIDlS
TL\IE 1:10PM
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 PAST TEMPORARY PARTIAL DISABILITY BENEFITS
THIS CAUSE came to be heard before the undersigned Workers' Compensation
Judge upon the Motion for Temporary Disability Benefits filed by the employee, Ralph
Joseph Lallo, on January 14, 2016, pursuant to Tennessee Code Annotated section 50-6-
239 (2015) to determine if the employer, Marion Environmental, Inc., is obligated to
provide past temporary partial disability benefits for the period of May 7, 20 15, through
September 26, 2015. For the reasons set forth below, the Court finds Mr. Lallo is entitled
to the requested temporary partial disability benefits.
This matter previously came before this Court on Employee's Request for
Expedited Hearing, seeking medical and temporary disability benefits, as well as a
subsequent Motion for Temporary Partial Disability Benefits. The Court conducted
evidentiary hearings, and to the extent necessary, the evidence presented at these hearings
as well the Court's Findings of Fact and Conclusions of Law from that evidence are
incorporated into this Order.
On October 1, 2015, Mr. Lallo filed a Motion seeking temporary partial disability
benefits. At the hearing, he testified to working for a few days in June 2015 and making
$250.00. On November 17, 2015, the Court entered an Order requiring Marion to pay
temporary partial disability benefits to Mr. Lallo for the period of May 1, 2015, through
May 6, 2015, and September 28, 2015, through the present and ongoing until Mr. Lallo
reached maximum medical improvement or became able to return to work. The Court
determined Mr. Lallo's compensation rate to be $696.03 per week. The Court further
found the lack of medical evidence regarding restrictions rendered it unable to order
temporary partial disability benefits for the per~od of May 7, 2015, through September
1
27, 2015, although it would reconsider the issue should medical pro?fbecome available.
On January 14, 2016, Mr. Lallo filed a Motion for Past Temporary Partial
Disability Benefits and attached Dr. Donald Huffman's response to a letter as supporting
evidence. (T.R. 1.) In the letter, Dr. Huffman stated:
In my opinion, it is likely to a reasonable degree of medical certainty, that
the restrictions set out on April 22, 2015, should have been continued
throughout Mr. Lallo's care, including the time period between April and
when I first saw him in September 20 15. ,
(Ex. 1.)
In response to Mr. Lallo's Motion, Marion conceded Dr. Huffman's response
constituted sufficient evidence to establish Mr. Lallo's physical restrictions from May 7,
2015, through September 27, 2015, and agreed to pay past temporary partial disability
benefits at a compensation rate of $696.03. (T.R. 2.) However, Marion requested the
Order reflect that should the Court find at a hearing on the merits that Mr. Lallo was not
entitled to temporary partial disability benefits, any award for permanent partial disability
benefits would be offset by the amount paid in temporary partial disability benefits. !d.
IT IS, THEREFORE, ORDERED as follows:
1. Marion shall pay Mr. Lallo past temporary partial disability benefits from May 7,
2015, through September 27, 2015, at a compensation rate of $696.03 per week,
except one week in June 2015 wherein Mr. Lallo's compensation rate was
$529.36, for a total of $14,052.23. 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 (2015) until Mr. Lallo reaches
maximum medical improvement or is able to return to work.
2. Should the Court find at a hearing on the merits that Mr. Lallo was not entitled to
temporary partial disability benefits, the Court will offset any final award for
permanent partial disability benefits by the amount paid in temporary partial
disability benefits.
3. 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) (2015). 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
2
necessary confirmation within the period of compliance may result in a
penalty assessment for non-compliance.
4. 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 ~h day of January, 2016.
~~ Court of Workers' Compensation Claims
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 fili.ng fee or flle the Affidavit of
Indigency in accordance with this section shall result in dismissal of the
appeal.
3
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 statement of the
evidence within ten calendar days of the filing of the Expedited Hearing Notice of
Appeal. The Judge must approve the statement of the evidence before the Court
Clerk may submit the record to the Clerk of the Appeals Board.
6. 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 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 business days of the filing of the
appellant's position statement.
4
APPENDIX
Exhibits:
1. Response from Dr. Donald Huffman;
Technical Record:
1. Employee's Motion for Temporary Partial Disability Benefits;
2. Employer's Response to Motion for Temporary Partial Disability Benefits; and,
3. Employee's Reply to Employer's Response.
Issue:
Whether Marion must pay past temporary partial disability benefits to Mr. Lallo.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Order for Past Temporary
Partial Disability Benefits was sent to the following recipients by the following methods
of service on this the 28
_th day of January, 2016.
Name Certifie Via Via Service sent to:
dMail Fax Email
MarkRassas X rassaslaw@aol.com
Alex B. Morrison X ABMorrison@mijs.com
, Clerk of Court
rkers' Compensation Claims
lerk@tn.gov
5