The opinion
FILED
Aug 05, 2021
01:29 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
DONALD BALDWIN, ) Docket No. 2020-05-0417
Employee, )
Vv. )
EVERS CONSTRUCTION CoO., ) State File No. 25498-2019
INC., )
Employer, )
And ) Judge Thomas Wyatt
ACCIDENT FUND INS. CO. OF AM., )
Carrier. )
COMPENSATION HEARING ORDER DENYING ADDITIONAL
PERMANENT PARTIAL DISABILITY BENEFITS
The Court held a Compensation Hearing on August 3, 2021, on Donald Baldwin’s
request for increased permanent partial disability benefits. He alleged entitlement to these
benefits because his post-injury position at Evers Construction Co., Inc. did not provide
overtime as did his pre-injury position, which resulted in a lower average weekly wage.
Evers countered that, by statute, Mr. Baldwin is not entitled to increased permanent
disability benefits because his hourly rate at the expiration of the original period of
compensation exceeded the rate he earned on the date of injury.
For the reasons below, the Court holds Mr. Baldwin did not prove he is eligible for
increased permanent partial disability benefits and denies his request.
History of Claim
Mr. Baldwin sustained a compensable left upper-extremity injury while working for
Evers. At the time of his injury, Mr. Baldwin worked in Evers’s mechanical department
and earned an hourly rate of $17.35. Mr. Baldwin testified he also worked mandatory
overtime.
Evers provided authorized treatment and returned Mr. Baldwin to work as he
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recuperated from his injury. After he reached maximum medical improvement, Mr.
Baldwin’s treating physician assigned a whole-body impairment rating of eight percent.
The parties settled his original award of permanent disability benefits for $26,724.24 based
on the rating and an average weekly wage of $742.34. Under the agreement, Mr. Baldwin
maintained his right to seek increased permanent disability benefits. The Court approved
the settlement on May 1, 2020.
At the expiration of his initial compensation period on November 5, 2020, Mr.
Baldwin worked at Evers as a tool crib coordinator earning $21.00 per hour. This job
requires that he work forty hours per week without the opportunity for overtime. Mr.
Baldwin sought increased permanent disability benefits because his post-injury average
weekly wages of $840 are substantially less than the average weekly wages he earned
before the date of injury. Evers declined to voluntarily pay increased permanent disability
benefits, so Mr. Baldwin requested this hearing.
Findings of Fact and Conclusions of Law
At a Compensation Hearing, the employee bears the burden of proving all elements
of his claim by a preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2020).
Here, there is little, ifno, dispute about the underlying facts:
e Mr. Baldwin’s injury is compensable.
He retained an eight-percent, whole-body impairment for his injury.
e He settled his case for an original award of permanent partial disability benefits
totaling $26,724.24.
e His pre-injury hourly rate was $17.35, and he often worked overtime.
e The initial compensation period expired November 5, 2020.
e His current average weekly wage is less than his pre-injury average weekly wage
because he now works in a job that pays him an hourly rate of $21.00 but does not
provide overtime.
Instead, the dispute lies with the application of these facts to the law. Mr. Baldwin
argued that he is entitled to increased permanent disability benefits because of the loss of
overtime opportunities. He asserted that a “double standard” will occur if the Court
considers only his increased hourly rate, and not his loss of overtime, in deciding his claim.
On the other hand, Evers relied on appellate interpretations of Tennessee Code
Annotated section 50-6-207(3)(B) in contending that Mr. Baldwin is not entitled to
increased benefits because his post-injury hourly rate of pay is higher than the rate he
earned before the date of his injury.
The Court’s analysis begins with the statute. An employee’s right to increased
permanent partial disability benefits is governed by Tennessee Code Annotated section 50-
6-207(3)(B), which provides:
If at the time the [original compensation period] ends the employee...
has returned to work and is receiving wages or a salary that is less than
one hundred percent (100%) of the wages or salary the employee received
from the employee’s pre-injury employer on the date of injury, the injured
employee may file a claim for increased benefits.
Since Mr. Baldwin is an hourly employee, his claim for increased benefits turns on
whether, post-injury, he is receiving lower “wages” than he earned pre-injury. The
Workers’ Compensation Law does not define the term “wages;” thus, the Court must look
to case law for direction in how to interpret that term as used in section 50-6-207(3)(B).
In Marshall v. Mueller Company, 2016 TN Wrk. Comp. App. Bd. LEXIS 74, at
*22-25 (July 11, 2016), the Workers’ Compensation Appeals Board concluded that the
definition of the term “wage” as set forth by the Supreme Court in Powell v. Blalock
Plumbing & Elec. & HVAC, 78 8.W.3d 893, 898 (Tenn. 2002), and Wilkins v. The Kellogg
Co., 48 8.W.3d 148, 152-53 (Tenn. 2001), equally applied to the term “wages” as used in
section 50-6-207(3)(B) after the enactment of the 2013 Reform Act. Specifically, the
Supreme Court held that the term “wage” is not synonymous with the term “average
weekly wage,” and, for purposes of determining entitlement to additional permanent partial
disability benefits, the term “wage” “means the hourly rate of pay for an employee who is
compensated on an hourly basis. (Emphasis added).
Although Marshall presented different facts, both that case and Mr. Baldwin’s turn
on the definition of “wages” in section 50-6-207(3)(B). Simply put, the Appeals Board in
Marshall defined “wages” for an hourly employee as the hourly rate of pay paid the
employee. Since Mr. Baldwin earned a higher hourly rate post-injury, under Marshall, he
is not entitled to increased permanent partial disability benefits.
Regarding Mr. Baldwin’s loss of overtime income, the Appeals Board in Marshall
relied on Gerdau v. Ameristeel US, Inc., No. W2011-0414-WC-R3-WC, 2012 Tenn.
LEXIS 488, at *7 (Tenn. Workers’ Comp. Panel July 30, 2012). Gerdau held that, while
the loss of overtime income bears on an hourly employee’s average weekly wage, it does
not determine an employee’s right to additional permanent partial disability benefits, since
the latter is determined by the employee’s pre- and post-injury hourly rates of pay. For
that reason, the Panel held the trial court in Gerdau properly denied increased benefits
when an employee’s post-injury hourly rate was higher than that he earned before the
injury, even though the employee’s loss of overtime reduced his post-injury income.
Based on the definition of “wages” in Marshall, the Court denies Mr. Baldwin’s
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claim for increased permanent partial disability benefits because his post-injury rate of pay
is higher than that he earned on the date of injury.
IT IS, THEREFORE, ORDERED:
1. Mr. Baldwin’s claim for increased permanent partial disability benefits is
denied.
2. All other benefits provided Mr. Baldwin in the Settlement Agreement approved
by the Court are preserved.
3. The filing fee of $150.00 is taxed to Evers and its carrier under Tennessee
Compilation Rules and Regulations 0800-02-21-.06 (August, 2019) and shall be
remitted to the Clerk of the Court of Workers’ Compensation Claims within
seven business days from the date of the issuance of the judgment. Further,
counsel for Evers shall prepare and submit a Statistical Data Form for this case
within ten business days from the date of judgment.
4. Unless appealed, this order becomes final in thirty days.
ENTERED August 5, 2021.
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
APPENDIX
Technical record:
Petition for Benefit Determination
Dispute Certification Notice
Scheduling Order
Employer Witness and Exhibit Lists
Transfer Order
Employer Prehearing Statement
Post-Discovery Dispute Certification Notice
NAMRY HS
Exhibits:
MP whe
Settlement approval documents
Wage Statement
Check stubs filed by Employee
Check stubs filed by Employer
Employee’s responses to Employer’s First Set of Requests for Admission
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on August 5, 2021.
Name US. Email | Service sent to:
Donald Baldwin XxX heritagehillsangus@gmail.com
Employee
Cole Stinson xX cole.stinson@afgroup.com
Employer’s Attorney
Penny Shrum, Court Clerk
WC.CourtClerk@tn.gov
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
wu. th aov/workforce/injurles-at-work/
we.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.;
Date of injury:
Employee
v.
Employer
Notice is given that.
[List nomef(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):
CO Expedited Hearing Order filed on__-_ _ 0) Motion Order filed on
01 Compensation Order filed on:__ 0 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): C] Employer|_jEmployee
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 _jEmployee
Appellee’s Address: Phone:
Email: . 7
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 | have forwarded a
true and exact copy of this Notice of Appeal by First Class mall, 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
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
}, , having been duly swom according to law, make oath that
because of my paverty, 1am undbla to bear the costs of this appeal and request that the filing fea 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 Ali Dependents:
_ Relationship;
Relationship:
Relationship:
Relationship:
6. |am employed by:
My employer's address I;
My employer’s phone number is: _ . ie sess coe
7, My present monthly household income, after federal income and social security taxes are deducted, is:
$
B. | receive of expect to receive money from the following sources;
AFDC $____spper month beginning
ssl $_ sper month beginning _____ oe ss
Retirement $_ permonth -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 Chik Cam = § ___ per month
Transportation $ per month Child Support $ ; per month
Car $ per month
Other $ per month (describe: : }
10. Assets:
Automobile $ (FMV)
Checking/Savinge Acct. §
House $ (FMV)
Other $ Desttibe:
11. My debts are:
Amaunt Owed To Whom
thereby deciare under the penalty of perjury that the foregoing anawers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.
APPECCANT
Swom and subscribed bafore me, a notary public, thia
day of ‘ , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV } 1/15) RDA 11082