Hopkins, Casey v. EmployBridge Holding Co.

FILED

Mar 10, 2020

11:54 AM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Casey A. Hopkins ) Docket No. 2019-05-0198

)

v. ) State File No. 95177-2016

)

EmployBridge Holding Co., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Dale A. Tipps, Judge )

Affirmed as Modified and Remanded

The employee sustained a compensable injury while working at a manufacturing plant

through a temporary staffing agency. After the work accident, she returned to work for a

period of time at different work sites until her temporary assignments ended. Thereafter,

she received some temporary disability benefits. When those benefits were terminated,

she sought additional benefits. Following an expedited hearing, the trial court ordered

the employer to pay additional temporary partial disability benefits, and the employer has

appealed. We modify the amount of temporary partial disability benefits owed but

otherwise affirm the trial court’s interlocutory order and remand the case.

Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which

Judge David F. Hensley and Judge Pele I. Godkin joined.

Tiffany B. Sherrill, Knoxville, Tennessee, for the employer-appellant, EmployBridge

Holding Co.

David G. Goodman, Nashville, Tennessee, for the employee-appellee, Casey Hopkins

Factual and Procedural Background

Casey A. Hopkins (“Employee”), a resident of Warren County, Tennessee, was

employed by EmployBridge Holding Co. (“Employer”), a temporary staffing agency.

While working on temporary assignment at a manufacturing plant in Manchester,

Tennessee, Employee sustained an injury to her head and scalp on December 9, 2016,

when her hair became caught in a machine. In addition to her physical injuries, she also

reported mental injuries caused by the accident. She received authorized care from Dr.

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John Summitt for her physical injuries and from Dr. James Kyser for her mental injuries.

As of the date of the expedited hearing in this case, she had not been placed at maximum

medical improvement by either physician.

Several weeks after the work accident, Employee was released to return to work

but was restricted from working in a factory setting and/or working near machinery. She

returned to work on January 16, 2017, and continued working until the temporary

assignment ended on September 20, 2018. Thereafter, she received temporary disability

benefits from September 21 through November 27, 2018, and from January 9 through

January 22, 2019. Employer stated that it terminated her benefits as of November 27,

2018 because she no longer had any “physical work restrictions,” and that it paid

additional temporary benefits in January 2019 during Employee’s recovery period

following surgery. Employee asserted she was willing to work any temporary

assignment within her restrictions but received no other assignments through Employer

after September 20, 2018.

Thereafter, Employee filed a request for an expedited hearing seeking additional

temporary benefits. During her testimony, Employee acknowledged that she had

received temporary disability benefits from September 21 through November 27, 2018,

and again from January 9 through January 22, 2019. She also testified she had found two

temporary assignments on her own that, combined, lasted for six weeks in November and

December 2018. Employer argued Employee was not entitled to any additional

temporary benefits because she was capable of working.

Following the expedited hearing, the trial court held Employee was entitled to an

additional fifty-eight weeks of temporary partial disability benefits, covering a period

from September 21, 2018 to December 12, 2019, less six weeks, as well as ongoing

temporary disability benefits. The court ordered the employer to file a wage statement so

that the amount of temporary partial disability benefits owed could be calculated.

Employer has appealed. 1

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the

court’s factual findings are correct unless the preponderance of the evidence is otherwise.

See Tenn. Code Ann. § 50-6-239(c)(7) (2019). When the trial judge has had the

opportunity to observe a witness’s demeanor and to hear in-court testimony, we give

considerable deference to factual findings made by the trial court. Madden v. Holland

Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar

1

After the trial court’s first order was issued, Employer filed a wage statement. Subsequently, the trial

court issued a December 30, 2019 order in which it calculated the amount of past temporary partial

disability benefits owed. Employer’s notice of appeal only identifies the December 19 order as being

appealed.

2

deference need be afforded the trial court’s findings based upon documentary evidence.”

Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at

*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and

application of statutes and regulations are questions of law that are reviewed de novo with

no presumption of correctness afforded the trial court’s conclusions. See Mansell v.

Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are

also mindful of our obligation to construe the workers’ compensation statutes “fairly,

impartially, and in accordance with basic principles of statutory construction” and in a

way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-

116 (2019).

Analysis

As an initial matter, we note that both parties cite in their briefs Tennessee Code

Annotated section 50-6-217(a)(3) (2016) (repealed 2017), which authorized us to reverse

or modify a trial court’s decision if the rights of a party were prejudiced because the

findings of the trial judge were “not supported by evidence that is both substantial and

material in light of the entire record.” However, as we have observed on numerous

occasions, this code section was repealed effective May 9, 2017. 2 Consequently, the

standard we apply in reviewing the trial court’s decision presumes that the trial judge’s

factual findings are correct unless the preponderance of the evidence is otherwise. Tenn.

Code Ann. § 50-6-239(c)(7).

Employer raises three issues on appeal: (1) whether “the lack of clear work

restrictions” and Employee’s “lack of reasonable effort” to return to work disqualifies her

2

See Andrews v. Custom Foods of America, Inc., No. 2018-03-0413, 2020 TN Wrk. Comp. App. Bd.

LEXIS 1, at *3-4 (Tenn. Workers’ Comp. App. Bd. Jan. 24, 2020); Goodwin v. Morristown Driver’s

Services, Inc., No. 2017-03-1235, 2019 TN Wrk. Comp. App. Bd. LEXIS 37, at *6-7 (Tenn. Workers’

Comp. App. Bd. July 31, 2019); McLaurin v. AT&T Services, LLC, No. 2017-03-1133, 2019 TN Wrk.

Comp. App. Bd. LEXIS 6, at *4-5 (Tenn. Workers’ Comp. App. Bd. Jan. 31, 2019); Bullard v. Facilities

Performance Grp., No. 2017-08-1053, 2018 TN Wrk. Comp. App. Bd. LEXIS 37, at *5 (Tenn. Workers’

Comp. App. Bd. Aug. 7, 2018); Ledford v. Mid-Georgia Courier, Inc., No. 2017-01-0740, 2018 TN Wrk.

Comp. App. Bd. LEXIS 28, at *4 (Tenn. Workers’ Comp. App. Bd. June 4, 2018); Duignan v. Stowers

Machinery Corp., No. 2017-03-0080, 2018 TN Wrk. Comp. App. Bd. LEXIS 25, at *8-9 (Tenn. Workers’

Comp. App. Bd. May 29, 2018); Ogden v. McMinnville Tool & Die, No. 2016-05-1093, 2018 TN Wrk.

Comp. App. Bd. LEXIS 14, at *9-10 (Tenn. Workers’ Comp. App. Bd. May 7, 2018); Edwards v. Fred’s

Pharmacy, No. 2017-06-0526, 2018 TN Wrk. Comp. App. Bd. LEXIS 9, at *5-6 (Tenn. Workers’ Comp.

App. Bd. Feb. 14, 2018); Bowlin v. Servall, LLC, No. 2017-07-0224, 2018 TN Wrk. Comp. App. Bd.

LEXIS 6, at *6-7 (Tenn. Workers’ Comp. App. Bd. Feb. 8, 2018); Thompson v. Comcast Corp., No.

2017-05-0639, 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *12-13 (Tenn. Workers’ Comp. App. Bd.

Jan. 30, 2018); Baker v. Electrolux, No. 2017-06-0070, 2017 TN Wrk. Comp. App. Bd. LEXIS 65, at *5-

6 (Tenn. Workers’ Comp. App. Bd. Oct. 20, 2017); Butler v. AAA Cooper Transp., No. 2016-07-0459,

2017 TN Wrk. Comp. App. Bd. LEXIS 54, at *5-6 (Tenn. Workers’ Comp. App. Bd. Sept. 12, 2017);

Glasgow v. 31-W Insulation Co., No. 2017-05-0225, 2017 TN Wrk. Comp. App. Bd. LEXIS 51, at *11-

12 (Tenn. Workers’ Comp. App. Bd. Sept. 6, 2017).

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from additional temporary disability benefits; (2) whether “physical work restrictions”

are required to support an order for additional temporary disability benefits; and (3)

whether the trial court erred in awarding temporary disability benefits for a period of time

during which Employee already received such benefits. 3

With respect to the first issue raised by Employer, we disagree that Employee’s

work restrictions are unclear. In his letter dated March 2, 2017, Dr. Kyser diagnosed

Employee with posttraumatic stress disorder. In an email to Employee’s counsel dated

November 27, 2019, Dr. Kyser clarified that he had restricted Employee from working

near “machinery or anything resembling the setting in which she was injured.” During

the expedited hearing, Employee testified she understood Dr. Kyser’s instructions to

mean she was to avoid working around moving equipment. We find this work restriction

to be sufficiently clear and unambiguous to support an award of temporary benefits.

Moreover, it is undisputed that after the last temporary assignment offered by

Employer ended in September 2018, Employee received no other assignments from

Employer. She attended one interview arranged by Employer but was not offered the

position. Employee testified she never declined any light duty position offered by

Employer. In addition, when her temporary assignment ended, she attempted to find

work with other companies. She secured temporary work at two local retail stores that

lasted six weeks. She sent applications to local businesses and, as of the date of the

expedited hearing, had a prospect for another temporary assignment with a carpenter.

We find Employee’s undisputed testimony supports a conclusion that she made

reasonable efforts to return to work following her injury.

Second, Employer asserts that physical restrictions are required to support an

award of temporary disability benefits. Employer cites no statutory or case law

supporting such an assertion, and we have found none. In fact, there is an abundance of

case law stating that consideration of mental conditions and related restrictions is

appropriate in addressing the nature and extent of disability. See, e.g., Wilkes v. Resource

Auth., 932 S.W.2d 458, 463 (Tenn. 1996) (“Defining ‘employability’ merely in physical

terms is too restrictive because it ignores the term’s mental, emotional, and

communicative aspects important in obtaining and maintaining employment.”); LaPradd

v. Nissan North Am., Inc., No. M2014-01722-SC-R3-WC, 2016 Tenn. LEXIS 6, at *24

(Tenn. Workers’ Comp. Panel Jan. 14, 2016) (testifying physicians agreed that

employee’s depression “presented an additional impediment to employment”); Tabor v.

Crossville Ceramics Co., No. 03S01-9810-CV-00117, 1999 Tenn. LEXIS 587, at *3

3

Employer also states in its brief that the trial court erred in admitting an “unauthenticated” email

addressing Employee’s work restrictions. However, Employer has offered no argument or authority to

support its statement that the trial court erred in admitting the email. Thus, we deem the issue waived.

See Sneed v. Bd. of Prof’l Responsibility of the Sup. Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010)

(“[W]here a party fails to develop an argument in support of his or her contention . . . the issue is

waived.”).

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(Tenn. Workers’ Comp. Panel Nov. 12, 1999) (consideration of employee’s “mental

restrictions” supported trial court’s award). In short, we agree with the trial court’s

conclusion that consideration of “environmental limitations” resulting from a

compensable mental injury is appropriate in the analysis of an injured worker’s

entitlement to temporary disability benefits.

Finally, Employer asserts the trial court erred in awarding temporary disability

benefits for periods of time during which Employee received such benefits. We agree.

The trial court’s expedited hearing order required Employer to pay additional temporary

benefits from September 21, 2018 to December 12, 2019, less six weeks for the time

Employee worked in November and December 2018, for a total of fifty-eight weeks.

However, as discussed above, Employee acknowledged that she received temporary

disability benefits from September 21 through November 27, 2018, and again from

January 9 through January 22, 2019. Therefore, in addition to the six weeks deducted for

the time Employee worked in November and December 2018, the trial court also should

have deducted another eleven and a half weeks from the total, representing the time

during which temporary benefits had been paid. Thus, we modify the trial court’s order

for the payment of temporary disability benefits from a total of fifty-eight weeks to a total

of forty-six and one half weeks.

Conclusion

For the foregoing reasons, we affirm the trial court’s order as modified and

remand the case. Costs on appeal are taxed to Employer.

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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Casey A. Hopkins ) Docket No. 2019-05-0198

)

v. ) State File No. 95177-2016

)

EmployBridge Holding Co., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Dale A. Tipps, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced

case was sent to the following recipients by the following methods of service on this the 10th day

of March, 2020.

Name Certified First Class Via Via Sent to:

Mail Mail Fax Email

Tiffany B. Sherrill X tbsherrill@mijs.com

David G. Goodman X dgoodman@forthepeople.com

Dale A. Tipps, Judge X Via Electronic Mail

Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov

Workers’ Compensation Claims

Olivia Yearwood

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-1606

Electronic Mail: WCAppeals.Clerk@tn.gov