Melendez, Anana v. Wolfe Co.

FILED

Jul 06, 2020

04:00 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT JACKSON

ANANA MELENDEZ, ) Docket No. 2018-07-0342

Employee, )

v. )

WOLFE CO., ) State File No. 46997-2017

Employer, )

And )

ACCIDENT FUND GENERAL ) Judge Allen Phillips

INS. CO., )

Carrier. )

COMPENSATION HEARING ORDER

This case came before the Court on June 11, 2020 for a Compensation Hearing. The

only issue was whether Ms. Melendez is entitled to enhanced benefits because she lacks a

high school diploma or general equivalency diploma (GED). For the following reasons, the

Court holds she is entitled to the enhanced benefits.

History of Claim

On January 31, 2020, the Court entered an Order Approving Settlement Agreement

in which it approved an original award of $19,283.94 in permanent partial disability

benefits. The Court also awarded enhancing factors of 1.35 times the original award

because Ms. Melendez did not return to work at the end of the initial benefit period and 1.2

times because she is over age forty.1

The parties did not agree to the enhancing factor of Tennessee Code Annotated

section 207(3)(B)(i), which provides a multiplier of 1.45 times the original award if the

employee lacks a high school diploma or GED. They did agree that if Ms. Melendez were

entitled to those benefits, they equal $14,058.

For her part, Ms. Melendez testified she does not have a GED but instead

completed only the ninth grade. She said she enrolled in GED classes about twenty years

ago when living in Indiana, and although she completed those classes, she did not “take

1

The Court additionally approved Wolfe’s agreement to pay future medical expenses.

1

the test” or “graduate.” She wrote “yes” to the question of whether she had a GED on

Wolfe’s job application because she thought the question meant whether she had completed

GED classes, not necessarily that she graduated. She said the job did not require a high

school diploma or GED.

In addition, Ms. Melendez offered a Workers’ Compensation Mediated Settlement

Agreement from 2008. The document listed her as having “completed formal education

through 10th grade.” She also produced a letter from an agency that provides adult

education services in the Indiana town where Ms. Melendez lived. The agency had no

record of Ms. Melendez having been a student, but it had only been the “program of record

for the past 9 years or so.” Ms. Melendez moved to Tennessee in 2003.

Wolfe introduced the job application and offered an adjuster’s note, which stated

that Ms. Melendez told her she has a GED. At the hearing, the adjuster testified that she

asked every employee about their educational background and had done so in the same

way over her thirty-five-year career.

On cross-examination, Ms. Melendez did not recall talking with the adjuster. Wolfe

also confronted her about stating on her application that she had a GED. Ms. Melendez

replied that she did not “lie” but maintained she took the question to mean she had

completed the classes. However, she admitted she understood the word “graduate” means

that one “finished” a program.

Based on her testimony and the 2008 settlement agreement, Ms. Melendez

contended she established she does not have a GED. For its part, Wolfe contended Ms.

Melendez stated on the job application and told the adjuster that she had a GED. It argued

that when she settled the 2008 claim, she knew a lower education level meant recovery of

a larger amount of disability benefits, just as it does now. Further, Wolfe argued there are

thousands of adult education programs nationwide, meaning “it is virtually impossible to

disprove” that Ms. Melendez does not have a GED by requesting records from those

programs.

Findings of Fact and Conclusions of Law

The employee in a workers’ compensation claim has the burden of proof on all

essential elements of her claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp.

App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). At this Compensation Hearing, Ms. Melendez

must establish her entitlement to the requested benefits by a preponderance of the evidence.

Tenn. Code Ann. § 50-6-239(c)(6).

Here, Ms. Melendez testified she does not have a GED, and she offered a previous

settlement agreement that memorialized a tenth-grade education to corroborate that

testimony. Wolfe offered compelling contrary evidence, specifically the job application

and Ms. Melendez’s statement to the adjuster ‒ a statement that the Court believes she

made. Further, the Court recognizes that Ms. Melendez has claimed a lower education level

2

twice, here and in the earlier settlement, where lacking a GED enhances her benefits.

Moreover, the Court recognizes Wolfe’s argument that proving the negative regarding an

employee’s education level is practically impossible.

However, while Wolfe’s position is compelling, the Court finds Ms. Melendez’s

trial testimony dispositive. She testified, after swearing a solemn oath and under penalty of

perjury, that she did not have a GED. The Court watched her closely. Because current

health concerns require facial masking, the Court could only see her eyes. “The face is a

picture of the mind as the eyes are its interpreter.”2 In Ms. Melendez’s eyes, the Court

detected neither deceit nor prevarication. If anything, a slight degree of reticence was more

in keeping with some embarrassment at having her lack of education aired in public.

Likewise, the Court listened to her intently, noting her tone and inflection. She was

calm and sure. See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014) (discussing

indicia of witness credibility). Even when Wolfe confronted her as to whether she “lied”

on the job application, Ms. Melendez did not become argumentative. Again, she said she

interpreted the question as meaning that she had completed the classes, not necessarily that

she received a certificate. Regardless, a GED was unnecessary to obtain the job, removing

any need for embellishment.

Based on these findings, the Court finds Ms. Melendez credible and holds she is

entitled to the 1.45 times enhancing factor because she lacks a high school education or

GED.

IT IS, THEREFORE, ORDERED AS FOLLOWS:

1. Wolfe shall pay Ms. Melendez enhanced permanent partial disability benefits of

$14,058 under Tennessee Code Annotated section 50-6-207(3)(B)(i). Ms.

Melendez’s attorney is entitled to a twenty-percent fee of the award under

Tennessee Code Annotated section 50-6-226(a)(1), or $2,811.60.

2. Wolfe shall pay all reasonable and necessary future medical benefits under

Tennessee Code Annotated section 50-6-204(a)(1)(a) under the January 31, 2020

Order Approving Settlement Agreement.

3. The Court taxes the $150.00 filing fee to Wolfe, to be paid to the Court Clerk

under Tennessee Compilation Rules and Regulations 0800-02-21-.06 (August,

2019) within five business days of this order becoming final, and for which

execution might issue if necessary.

4. Wolfe shall file a Statistical Data Form (SD-2) with the Court Clerk within five

business days of the date this order becomes final.

2

Marcus Tullius Cicero, Roman philosopher (106-43 B.C.).

3

5. Absent an appeal, this order shall become final thirty days after entry.

ENTERED July 6, 2020.

_____________________________________

Judge Allen Phillips

Court of Workers’ Compensation Claims

APPENDIX

Exhibits

1. Application for Employment

2. Photocopy of claims handler’s note

3. Settlement Documents, January 31, 2020

4. Settlement Documents, December 23, 2008

5. Subpoena for education records

6. Affidavit of Records Custodian regarding education records

7. First Report of Work Injury

Technical Record

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Scheduling Hearing

4. Order Setting Compensation Hearing

5. Employee’s Pre-Hearing Brief

6. Employee’s List of Proposed Exhibits

7. Employee’s Witness List

8. Pre-Compensation Hearing Statement

9. Wolfe Co. Pre-Hearing Brief

10. Wolfe Co. Exhibit List

11. Wolfe Co, Witness List

12. Motion to Continue Compensation Hearing

13. Order Continuing Compensation Hearing

14. Second Order Setting Compensation Hearing

4

CERTIFICATE OF SERVICE

I certify that a copy of this Compensation Hearing Order was sent as indicated on

July 6, 2020.

Name Via Service sent to:

Email

Monica R. Rejeai, Employee’s Attorney X mrejaei@nstlaw.com

jkarpovich@nstlaw.com

Gordon Aulgur, Employer’s Attorney X gordona@accidentfund.com

rosie.marlatt@accidentfund.com

______________________________________

Penny Shrum, Court Clerk

Court of Workers’ Compensation Claims

5

Compensation Hearing Order Right to Appeal:

If you disagree with this Compensation Hearing Order, you may appeal to the Workers’

Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’

Compensation Appeals Board, you must:

1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the

Clerk of the Court of Workers’ Compensation Claims within thirty calendar days of the

date the compensation hearing order was filed. When filing the Notice of Appeal, you

must serve a copy upon the opposing party (or attorney, if represented).

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 filing 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 your 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. A licensed court

reporter must prepare a transcript and file it with the court clerk within fifteen calendar

days of the filing the Notice of Appeal. Alternatively, you may file a statement of the

evidence prepared jointly by both parties within fifteen calendar 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

of the evidence 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. After the Workers’ Compensation Judge approves the record and the court clerk transmits

it to the Appeals Board, a docketing notice will be sent to the parties. The appealing

party has fifteen calendar days after the date of that notice to submit a brief to the

Appeals Board. See the Practices and Procedures of the Workers’ Compensation

Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing

Order must be final and you must comply with the Tennessee Rules of Appellate

Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s

Order will become final by operation of law thirty calendar days after entry. See Tenn.

Code Ann. § 50-6-239(c)(7).

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

NOTICE OF APPEAL

Tennessee Bureau of Workers’ Compensation

www.tn.gov/workforce/injuries-at-work/

wc.courtclerk@tn.gov | 1-800-332-2667

Docket No.: ________________________

State File No.: ______________________

Date of Injury: _____________________

___________________________________________________________________________

Employee

v.

___________________________________________________________________________

Employer

Notice is given that ____________________________________________________________________

[List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the

Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-

stamped on the first page of the order(s) being appealed):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ Other Order filed on_____________________

issued by Judge _________________________________________________________________________.

Statement of the Issues on Appeal

Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

Parties

Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee

Address: ________________________________________________________ Phone: ___________________

Email: __________________________________________________________

Attorney’s Name: ______________________________________________ BPR#: _______________________

Attorney’s Email: ______________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellant *

LB-1099 rev. 01/20 Page 1 of 2 RDA 11082

Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________

Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee

Appellee’s Address: ______________________________________________ Phone: ____________________

Email: _________________________________________________________

Attorney’s Name: _____________________________________________ BPR#: ________________________

Attorney’s Email: _____________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a

true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described

in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this

case on this the __________ day of ___________________________________, 20 ____.

______________________________________________

[Signature of appellant or attorney for appellant]

LB-1099 rev. 01/20 Page 2 of 2 RDA 11082