The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
CASEY HOPKINS, ) Docket No. 2019-05-0198
Employee, )
V. )
)
EMPLOYBRIDGE HOLDING CO., ) State File No. 95177-2016
Employer, )
And )
)
XL INS. AMERICA, INC., ) Judge Dale Tipps
Carrier. )
EXPEDITED HEARING ORDER GRANTING BENEFITS
This case came before the Court on December 12, 2019, for an Expedited Hearing
on whether Ms. Hopkins is entitled to additional temporary disability benefits. For the
reasons below, the Court holds she is entitled to the requested benefits.
History of Claim
Ms. Hopkins suffered a significant work injury to her scalp on December 9, 2016.
Employbridge, a temporary work agency, accepted the injury as compensable and
provided medical treatment with Dr. Blair Summitt. Ms. Hopkins has undergone
multiple reconstructive operations, and more are scheduled. She also continues to treat
for accident-related PTSD with her authorized psychiatrist, Dr. Greg Kyser.
Dr. Kyser assigned Ms. Hopkins light-duty restrictions on March 20, 2017.
According to the affidavit of Employbridge employee Cody Sankowski, those restrictions
were no “factory work or work around machinery.” Ms. Hopkins testified that she also
had restrictions from Dr. Summitt for a while, although she did not provide details.
Employbridge accommodated Ms. Hopkins’s restrictions with light duty from the
date of her injury until September 20, 2018, when her job assignment ended. It then paid
temporary disability benefits until November 27, 2018. According to Mr. Sankowski,
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Ms. Hopkins no longer had physical work restrictions after that date but only the
limitations on factory work and machinery. Employbridge also paid temporary disability
benefits from January 9 to 22, 2019, after one of Ms. Hopkins’s surgeries.
After her last assignment, Employbridge sent Ms. Hopkins for an interview with
one of its clients, but she did not get the job. She also described a phone call with an
Employbridge employee to discuss the possibility of a night-shift job. Ms. Hopkins
expressed her preference not to work nights due to childcare concerns, but she said she
would be willing if that were the only option. No job offer ever came from that
conversation, and even though she asked several times, Employbridge never sent her for
other interviews or made any work offers.
Ms. Hopkins testified that she had two jobs since her temporary benefits ended.
She worked for Victoria’s Secret for about a month in November and December 2018.
She also worked for two weeks in December for a company called Premium. Regarding
other jobs, Ms. Hopkins applied unsuccessfully with many other employers.’
At the hearing, Ms. Hopkins requested temporary partial disability benefits from
November 28, 2018, to the present, minus the six weeks she worked during that period.
Employbridge contended that Dr. Kyser’s medical restrictions are somewhat
vague because they do not specify which type of machinery or factory work Ms. Hopkins
should avoid. Also, it claimed the medical record is unclear as to which time period
those restrictions cover. Finally, Employbridge argued that Ms. Hopkins has no physical
restrictions but only has environmental restrictions that do not merit disability benefits.
For these reasons, it asked the Court to deny her request.
Findings of Fact and Conclusions of Law
Ms. Hopkins must provide sufficient evidence from which this Court might
determine she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). She seeks temporary partial disability (TPD),
which are available when the temporary disability is not total. Specifically, TPD “refers
to the time, if any, during which the injured employee is able to resume some gainful
employment but has not reached maximum recovery.” An employee may receive TPD
benefits when the treating physician has her return to work with restrictions but the
employer either (1) cannot return the employee to work within those restrictions or (2)
cannot provide restricted work that pays the employee’s average weekly wage on the date
of injury. Heard v. Carrier Corp., 2018 TN Wrk. Comp. App. Bd. LEXIS 16, at *5-6
(April 20, 2018).
" She was recently hired by a carpentry company but has not yet begun work.
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Applying these criteria, Mr. Sankowski confirmed that Ms. Hopkins had medical
restrictions. Employbridge suggested some uncertainty exists about the duration of those
restrictions but presented no evidence to rebut Ms. Hopkins’s testimony that they are still
in place. Further, although Employbridge discussed other job assignments with Ms.
Hopkins, it made no offers to return her to work. Therefore, she is likely to prove at a
hearing on the merits that Employbridge could not return her to work within her
restrictions.
Employbridge contended that Dr. Kyser’s restrictions are vague. The Court
disagrees. The evidence was that Ms. Hopkins was to do no “factory work or work
around machinery.” These are admittedly very broad restrictions, but that does not make
them vague. To the contrary, a straightforward reading indicates exactly which kind of
work Ms. Hopkins may not do. Further, Employbridge has had over a year to ask Dr.
Kyser, their own panel doctor, for clarification if they were concerned about the scope of
Ms. Hopkins’s limitations.
Regarding Employbridge’s argument that the restrictions are only environmental,
it produced no authority to suggest that environmental limitations are somehow different
from physical restrictions in the TPD analysis. Further, psychiatric restrictions such as
those assigned to Ms. Hopkins will generally be environmental rather than physical, and
mental injuries are compensable under Tennessee Code Annotated section 50-6-102(14).
Ms. Hopkins established that, except for six weeks with other employers, she has
not worked since September 20, 2018. Therefore, the Court holds she is likely to prevail
at a hearing on the merits that she is entitled to TPD benefits for fifty-eight weeks,” as
well as continuing TPD benefits under Tennessee Code Annotated section 50-6-207(2).
The Court is unable to calculate the sum owed due to Employbridge’s failure to
file a wage statement, the parties’ failure to stipulate a compensation rate at the hearing,
and the lack of any testimony from Ms. Hopkins as to her wages. Once Employbridge
files a wage statement, the Court will order immediate payment.
IT IS, THEREFORE, ORDERED as follows:
1. Employbridge shall file a wage statement within ten calendar days of entry of
this order so the Court may calculate the correct average weekly wage and
compensation rate and issue an order for temporary disability benefits.
2. This matter is set for a Status Hearing on March 4, 2020, at 9:00 a.m. You must
call toll-free at 855-874-0473 to participate. Failure to call might result in a
September 21, 2018, to December 12, 2019, minus six weeks.
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determination of the issues without your further participation. All conferences are
set using Central Time.
ENTERED December 19, 2019.
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
Rule 72 Declaration of Casey Hopkins
Rule 72 Declaration of Michele Simmons
Rule 72 Declaration of Cody Sankowski
Indexed Medical Records
Email from Dr. Greg Kyser
WR wWNS
Technical record:
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Employer’s Pre-Hearing Statement
Employer’s Witness and Exhibit List
WR wWNS
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
December 19, 2019.
Name Certified | Email Service sent to:
David Goodman, xX dgoodman @forthepeople.com
Employee Attorney
Tiffany B. Sherrill, x tbsherrill @mijs.com
Employer Attorney
Le Mun -
Penny Shrum,/Clerk of Court
Court of Workérs’ Compensation Claims
WC.CourtClerk @ th.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 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 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.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
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
L] Medical benefits for current injury
LC Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
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 Appellant *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: L]JEmployer LJEmployee
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
I,
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
, certify that | have forwarded a true and exact copy of this
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , 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: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of Ail Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam employed by:
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 $ per month beginning
ssl $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) 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 I 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