The opinion
FILED
Jun 10, 2019
03:48 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Elizabeth Harrison, ) Docket No.: 2018-01-0699
Employee, )
V. )
Chattanooga Staffing, ) State File No.: 58404-2018
Employer, )
And )
Technology Insurance Co., ) Judge Audrey Headrick
Carrier. )
EXPEDITED HEARING ORDER
The Court convened an Expedited Hearing on June 4, 2019. The issue is whether
Ms. Harrison is likely to establish at trial that she is entitled to temporary partial disability
benefits. Chattanooga Staffing disputes her entitlement to benefits, asserting she chose
not to accept its offer of light-duty work.’ For the reasons below, the Court awards
temporary disability benefits.
History of Claim
While working as a caregiver for Chattanooga Staffing on July 16, 2018, Ms.
Harrison experienced a tearing/burning sensation across her neck into her left shoulder
while using both arms to move a paraplegic client. She reported the injury, and
Chattanooga Staffing instructed her to go to Physicians Care.”
Instead, Ms. Harrison sought treatment with Dr. Andrew Mendoza on July 18,
who prescribed medication and provided her with a sling. She then went to Physicians
' Chattanooga Staffing did not dispute her entitlement to temporary total disability benefits from April 9,
2019, forward, which is when Dr. Alex Sielatycki, panel physician, took Ms. Harrison completely off
work.
> Ms. Harrison later selected Physicians Care from a panel.
Care on July 23, and the provider restricted her to right-arm use only with continued use
of the sling as needed.
Physicians Care kept Ms. Harrison on the same restriction until it referred her to
Dr. Justin Arnold, an orthopedist, on August 22. However, she also saw Dr. Mendoza on
that day, and he retroactively took Ms. Harrison completely off work from July 18 “until
she has complete return of function in her L arm and shoulder.” After seeing Dr. Arnold
on August 29, he restricted Ms. Harrison to no lifting with her left arm and no overhead
work. Both parties offered testimony regarding these restrictions and their application to
Ms. Harrison’s work.
Suzanne Jesucat, Director of Chattanooga Staffing, testified through a December 3
written declaration. She learned of Ms. Harrison’s restrictions on August 30 and called
her the same day to offer her light-duty beginning on August 31, which Ms. Harrison
refused. Ms. Jesucat stated the light-duty consisted of warming meals, performing very
light housework, and accompanying a client to doctor appointments. Ms. Harrison
testified she does not recall speaking with either Ms. Jesucat or anyone else from
Chattanooga Staffing on August 30.
Separate from Ms. Jesucat’s written declaration, a letter signed by her on
November 29 provided additional details about the light-duty offered. She stated the
“light duty client” was someone Ms. Harrison knew since 2016, who was fully mobile
and mostly independent. Ms. Jesucat indicated the work involved two- and three-hour
shifts.
Ms. Harrison disputed Ms. Jesucat’s assertions regarding the abilities of this client.
She stated that her now-deceased aunt, Annie Mae Jones, was her only permanent client
since 2016. Ms. Harrison stated that Ms. Jones suffered a debilitating stroke on July 9,
2018, and afterward she required extensive assistance.
Aside from Ms. Jones, Ms. Harrison’s other clients were “fill-in” clients. When
asked about Barbara Kohler, a fill-in client, Ms. Harrison stated that she assisted Ms.
Kohler for approximately two to three months in 2017. Even if the unnamed client
referenced by Ms. Jesucat were Ms. Kohler, Ms. Harrison stated that caring for her
required use of both arms. She stated she performed the following tasks for Ms. Kohler:
(1) cooked meals with an iron skillet; (2) cleaned her kitchen; (3) assisted her into and out
of the shower and washed her back; (4) performed housecleaning; (5) applied lotion to
her body; and, (6) assisted her in dressing, including socks, shoes, and disposable
undergarments. Further, Ms. Harrison testified she had to use both arms to assist Ms.
Kohler even when seated because Ms. Kohler was “weaving” and “unsteady.”
After Ms. Jesucat’s call to Ms. Harrison on August 30, Chattanooga Staffing
stopped her temporary disability benefits on August 31. The parties agreed that Ms.
2
Harrison received temporary partial disability benefits from July 23 through August 31 at
the weekly compensation rate of $104.14. However, they agreed her correct
compensation rate is $135.30.°
Findings of Fact and Conclusions of Law
Standard Applied
At an expedited hearing, Ms. Harrison must present sufficient evidence to prove
she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1)
(2018). The Court holds she did.
Temporary Disability Benefits
Ms. Harrison requested temporary disability benefits. The Court grants her
request.
Ms. Harrison is eligible for TPD benefits if she earned less than her average
weekly wage due to work restrictions. See Tenn. Code Ann. § 50-6-207(2)(A). The
Court must consider the reasonableness of Chattanooga Staffing in attempting to return
her to work and the reasonableness of Ms. Harrison in failing to return to work. Lasser v.
Waste Mgmt., Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 20, at *14 (may 24, 2018).
Here, Ms. Harrison’s unrebutted testimony was that her aunt was the only
permanent client she consistently cared for from 2016 forward, who had a debilitating
stroke the week before the July 16, 2018 work injury. Even if the unnamed client
referenced by Ms. Jesucat were Ms. Kohler, Ms. Harrison’s unrebutted testimony proved
that Ms. Kohler’s caregiver must use both arms to care for her. When considering the
testimony and reasonableness of the actions of both parties, the Court finds that Ms.
Harrison’s refusal to work the light-duty Chattanooga Staffing offered was reasonable.
Therefore, the Court holds she is entitled to temporary partial disability benefits from
September 1, 2018, through April 8, 2019.
IT IS, THEREFORE, ORDERED as follows:
1. Chattanooga Staffing shall pay past-due temporary partial disability benefits at the
weekly compensation rate of $135.30 in the lump-sum amount of $4,252.29 for
the period from September 1, 2018, through April 8, 2019. It shall also pay Ms.
Harrison $178.05 for the underpayment from July 23, 2018, through August 31,
2018. As agreed by Chattanooga Staffing, it shall pay past-due temporary total
* Following the Expedited Hearing, Chattanooga Staffing filed a Motion to Reopen Proof. The Court
addressed that motion in a separate order.
disability benefits from April 9, 2019, through June 10, 2019, which totals
$1,217.70. Further, Chattanooga Staffing shall deduct $62.00 for an outstanding
child support lien upon receipt of proper documentation and submission of the lien
balance, if any, from Ms. Harrison.
2. Chattanooga Staffing shall continue to pay to Ms. Harrison temporary total
disability benefits in regular intervals until she is no longer eligible for those
benefits by reaching maximum medical improvement, by returning to work at a
wage equal to or greater her average weekly wage, or by release without
restrictions by Dr. Sielatycki. Chattanooga Staffing’s representative shall
immediately notify the Bureau, Ms. Harrison, and her counsel of the intent to
terminate temporary disability benefits by filing Form C-26, citing the basis for
the termination.
3. This matter is set for a Status Hearing on Tuesday, August 13, 2019, at 10:00 a.m.
Eastern Time. You must call 423-634-0164 or toll-free at 855-383-0001 to
participate. Failure to call may result in a determination of the issues without your
participation.
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 may result in a penalty
assessment for non-compliance.
5. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email at WCCompliance.Program(@tn.gov.
ENTERED June 10, 2019.
- My,
(\ LA ne ALK} Weal AM
Judge Audrey A( Headrick
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
Affidavit of Elizabeth Harrison
First Report
Wage Statement
Panels
Notice of First Payment of Compensation
Written Declaration of Suzanne Jesucat
Medical records of Elizabeth Harrison with a Table of Contents:
a. DACHC UMA Clinic
b. Physicians Care
c. Justin M. Armold, M.D.
d. J. Alex Sielatycki, M.D.
8. Medical records of Andrew E. Mendoza, M.D.
9. Suzanne Jesucat’s letter dated November 29, 2018
10. Photo of Annie Mae Jones
11. Job description UD Only 1)
12. Text messages (ID Only 2)
at ok A ee he
Technical record:
1. Petition for Benefit Determination
Dispute Certification Notice
Notice of Show Cause Hearing
Show Cause Order
Request for Expedited Hearing
Notice of Expedited Hearing
Motion to Continue
Pre-Hearing Brief of Employer and Insurer
9. Order Granting Motion to Continue
10. Order Setting Expedited Hearing
11. Second Pre-Hearing Brief of Employer and Insurer
12.Employer’s Motion to Quash Employee’s Subpoena of Suzanne Jessicat to Testify
13.Employer’s Amended Motion to Quash Employee’s Subpoena of Suzanne Jessicat
to Testify
14. Notice of Appearance
15. Witness and Exhibit List
16. Prehearing Brief of Elizabeth Harrison
17. Amended List of Witnesses and Exhibits
18.Order Granting Motion to Quash Employer’s Subpoena of Suzanne Jessicat to
Testify
yo SS a ed be
19. Amendment to Witness List
20. Motion to Reopen Proof
21. Objection of Elizabeth Harrison to Employer’s Motion to Reopen Proof
CERTIFICATE OF SERVICE
I certify that a copy of this Expedited Hearing Order was sent as indicated below on June
10, 2019.
Name Certified Email Service sent to:
Charles G. Wright, Jr., x wrightandwoodard@gmail.com
Employee Attorney
Fred Baker, x fbaker(@wimberlylawson.com
Courtney Hart, 4 chart(@wimberlylawson.com
Employer Attorneys
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‘¢ (Ak {A JWALYARE IN Wess a Ly Cy,
Penny Shrum, Glerk of Court eo Tin y
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivéry 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 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 the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
Filed Date Stamp Here Docket #:
Tennessee Division of Workers’ Compensation
www. abor-wid/weomp,shtm! State File #/YR: —_
we.courtclerk@tn.gav
1-800-332-2667 RFA #:
Date of Injury:
SSN:
Employee
Employer and Carrier
Notice
Notice is given that
[List name(s) of all appealing party(ies} on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals Board.
[List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
L] Temporary disability benefits
Medical benefits for current injury
CL] Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: UEmployer D Employee
Address:
Party’s Phone: Email:
Attorney's Name: BPR#:
Attorney’s Address: Phone:
Attorney's City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellont *
LB-1099_ rev.4/15 Page 1 of 2 RDA 11082
Employee Name: SFH: DOI:
Appellee(s)
Appellee (Opposing Party): __At Hearing: Employer DlEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney's Name: BPR#:
Attorney's Address: Phone:
Attorney's City, State & Zip code:
Attorney's Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
\, , certify that | have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers’ Compensation Appeals on this the day of. ,20_.
(Signature of appellant or attorney for appellant]
L8-1099_ rev.4/15 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
I,
Nashville, TN 37243-1002
AFFIDAVIT OF INDIGENCY
800-332-2667
, having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:
3. Telephone Number:
5. Names and Ages of All Dependents:
6. |am employed by:
2. Address:
4. Date of Birth:
Relationship:
Relationship:
Relationship:
Relationship:
My employer's address is:
My employer’s phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following sources:
AFDC $
SSsl $
Retirement $
Disability $
Unemployment $
Worker's Comp.$
Other $
LB-1108 (REV 11/15)
per month
per month
per month
per month
per month
per month
per month
beginning
beginning
beginning
beginning
beginning
beginning
beginning
RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe: )
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082