Findley, Jack v. Volswagen Group of America, Inc.

2017 TN WC 152
CourtTennessee Court of Workers' Compensation Claims
DecidedAugust 7, 2017
Docket2016-01-0035
StatusPublished

This text of 2017 TN WC 152 (Findley, Jack v. Volswagen Group of America, Inc.) is published on Counsel Stack Legal Research, covering Tennessee Court of Workers' Compensation Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Findley, Jack v. Volswagen Group of America, Inc., 2017 TN WC 152 (Tenn. Super. Ct. 2017).

Opinion

FILED

TN COURT OF l'\ OR..K:IRS' OOlJPlNS ~'\TIO N 'C 1AThiS

TENNESSEE BUREAU OF WORKERS' COMPENSATION IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT CHATTANOOGA

JACK KEITH FINDLEY, ) Docket No.: 2016-01-0035 Employee, ) v. ) State File Number: 67325-2014 VOLKSWAGEN GROUP OF ) AMERICA, INC., ) Employer, ) Judge Thomas Wyatt v. ) GALLAGHER BASSETT SERVICES, ) INC., ) Insurance Carrier. ) )

COMPENSATION HEARING ORDER FOR TEMPORARY PARTIAL DISABILITY BENEFITS, ADDITIONAL PERMANENT PARTIAL DISABILITY BENEFITS, AND MEDICAL BENEFITS

This matter came before the undersigned Workers' Compensation Judge for a Compensation Hearing on July 14, 2017. Mr. Findley sought temporary disability and additional permanent partial disability benefits. The determination of his claim requires the Court to: (1) select between competing opinions regarding the degree of Mr. Findley's permanent impairment and the date he attained maximum medical improvement; and (2) determine whether the condition that precluded Mr. Findley from returning to work at Volkswagen (VW) was a compensable injury. For the reasons set forth below, the Court awards Mr. Findley temporary partial disability benefits, additional permanent partial disability benefits, and future medical benefits.

History of Claim

Mr. Findley is a forty-year-old resident of Marion County, Tennessee. He worked for VW in both assembly line and quality assurance jobs before the date of injury. Mr. Findley passed an extensive physical before VW hired him, and he experienced no back or radicular pain before the injury.

1 Mr. Findley injured his back when he twisted while lifting a door on an assembly line. He reported the injury and selected Dr. Jayant Eldurkar from a panel. On August 27, Mr. Findley saw a provider in Dr. Eldurkar's office. Mr. Findley remained under Dr. Eldurkar' s care for two months during which he received a lumbar MRI, conservative treatment, and work restrictions. VW accommodated the restrictions, but Mr. Findley's symptoms worsened.

On October 22, Dr. Eldurkar referred Mr. Findley to an orthopedist, Dr. Jay 1 Jolley. Dr. Jolley diagnosed a lumbar strain, degenerative disc disease, a small L5-S 1 herniated nucleus pulposus, and right-lower extremity radiculitis. Dr. Jolley replied to a causation inquiry from VW by stating that Mr. Findley's lumbar strain, superimposed on degenerative disc disease, was the cause of his back pain, while his leg pain resulted from his herniated L5-S1 disc. Dr. Jolley gave two lumbar epidural steroid injections that provided Mr. Findley partial, but temporary, relief. He also placed restrictions, which VW accommodated. Nevertheless, Mr. Findley's back and leg pain continued to worsen.

On March 23, 2015, Dr. Jolley responded to a second causation inquiry from VW by stating Mr. Findley's lumbar strain and L5-S1 herniated disc arose primarily out of and in the course and scope of employment but his degenerative disc disease did not. He also concluded Mr. Jolley's strain and herniated disc "[were] now resolved." 2 Dr. Jolley maintained the same restrictions, 3 but stated they were solely due to the non-work-related degenerative disc disease. On April23, Dr. Jolley rated Mr. Findley's impairment at six percent to the whole body.

Dr. Jolley's opinions caused a fundamental change in VW's administration of Mr. Findley's claim. By policy, VW accommodates restrictions due to work injuries, but does not accommodate non-work-related restrictions. Thus, VW ceased providing the light-duty job when it learned of Dr. Jolley's new causation opinions.

Christine McEvoy, a VW management employee who helps employees with

1 Mr. Findley contended that VW's case manager, not Dr. Eldurkar, selected Dr. Jolley. Dr. Eldurkar's October 22, 2014 note stated he would "refer Mr. Findley to an orthopedic spine specialist today," but did not specifY a physician by name. However, a January 29, 2016 letter from Dr. Eldurkar stated: "Mr. Findley was referred to Dr. Jolley on October 22, 20 14." (Ex. 11 at 11-12.) 2 Dr. Jolley's March 2, 20 15 note indicated Mr. Findley reported his lower extremity radiculitis was "SO% better with the 2nd LESl [injection]." (Ex. 12, ex. 2 at 14.) However, he also reported he had a loss of bowel function two days earlier and reported pain rated at six on a scale often during the same visit. Id Dr. Jolley's NP noted on April 23, 2015, that Mr. Findley reported back and right lower extremity pain rated at eight on a scale often and that "his symptoms have gotten worse since his last visit." (Ex. 12, ex. 2 at 12.) (Emphasis added.) 3 Dr. Jolley's restrictions were: "no lifting greater than 10 pounds, no bending or twisting, no pushing or pulling greater than 20 pounds." (Ex. 12, ex. 2 at 5.)

2 workers' compensation claims, told Mr. Findley to apply for short-term disability (STD) benefits when Dr. Jolley changed his restrictions from work-related to non-work-related. Mr. Findley followed her instructions and received STD benefits between March 24 and August 20, 2015. Mr. Findley requested a second opinion of Dr. Jolley's opinion, but never received approval to see another physician.

Because of his disagreement with Dr. Jolley's opinions and treatment, Mr. Findley sought care on his own from orthopedist Dr. Scott Hodges. Dr. Hodges noted Mr. Findley reported having no back pain until he injured his back at VW. He diagnosed an L5-S 1 disc protrusion and wrote: "based on the history given and review of MRI this is a work-related disc injury [at] L5-Sl. This is not generalized degenerative disc disease from aging." Mr. Findley then continued treatment with Dr. Hodges and did not return to Dr. Jolley.

After VW stopped paying STD benefits on August 20, it paid Mr. Findley permanent partial disability benefits based on Dr. Jolley's impairment rating. Mr. Findley received twenty-seven weeks of PPD benefits, totaling $14,788.17 for April 24 through October 30. 4

Shortly after Mr. Findley received the first PPD payment, he received a letter from VW stating it deemed him to have voluntarily resigned because he did not report to work after August 21, the date his STD leave expired. Mr. Findley countered by letter that he did not resign his job, but instead he explained he did not return to work because Ms. McEvoy told him that VW could not accommodate Dr. Jolley's restrictions. Mr. Findley's letter also stated he spoke to a VW employee on October 6 about applying for work within his restrictions.

On October 29, Mr. Findley completed and submitted VW's "Reasonable Accommodation Request Form" requesting a job accommodating his restrictions.5 (Ex. 16.) This request culminated in a telephone conversation between Mr. Findley and VW management including Marcia Ann Wood. Ms. Wood testified VW informed Mr. Findley during the conversation that it would deem him to have voluntarily resigned if he could not tell them that day he was physically able to return to work. She testified Mr. Findley told them he could not return without accommodation, thus VW deemed that he voluntarily resigned because it could not accommodate his non-work-related restrictions. 6

4 The parties stipulated Mr. Findley's average weekly wage was $821.53, thus his compensation rate is $547.71 per week. 5 Mr. Findley sought accommodations based on Dr. Hodges' restrictions, which were: "no lifting greater than thirty pounds occasionally or twenty pounds frequently and the ability to change sitting or standing positions every thirty minutes." (Ex. 17 at 1.) 6 The Separation Notice listed "Voluntary Resignation" as the reason for the termination. (Ex. 14.)

3 Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

§ 50-6
Tennessee § 50-6
§ 50-6-204
Tennessee § 50-6-204(k)(7)
§ 50-6-207
Tennessee § 50-6-207(2)(C)
§ 50-6-239
Tennessee § 50-6-239(c)(6)

Cite This Page — Counsel Stack

Bluebook (online)
2017 TN WC 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/findley-jack-v-volswagen-group-of-america-inc-tennworkcompcl-2017.