Harrison, Elizabeth v. Chattanooga Staffing

2019 TN WC 94

• Court: Tennessee Court of Workers' Compensation Claims
• Decided: June 10, 2019
• Docket: 2018-01-0699
• Status: Published

Opinion

FILED Jun 10, 2019

03:48 PM(ET) TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT CHATTANOOGA

Elizabeth Harrison, ) Docket No.: 2018-01-0699 Employee, )

V. )

Chattanooga Staffing, ) State File No.: 58404-2018 Employer, )

And )

Technology Insurance Co., ) Judge Audrey Headrick Carrier. )

EXPEDITED HEARING ORDER

The Court convened an Expedited Hearing on June 4, 2019. The issue is whether Ms. Harrison is likely to establish at trial that she is entitled to temporary partial disability benefits. Chattanooga Staffing disputes her entitlement to benefits, asserting she chose not to accept its offer of light-duty work.’ For the reasons below, the Court awards temporary disability benefits.

History of Claim

While working as a caregiver for Chattanooga Staffing on July 16, 2018, Ms. Harrison experienced a tearing/burning sensation across her neck into her left shoulder while using both arms to move a paraplegic client. She reported the injury, and Chattanooga Staffing instructed her to go to Physicians Care.”

Instead, Ms. Harrison sought treatment with Dr. Andrew Mendoza on July 18, who prescribed medication and provided her with a sling. She then went to Physicians

' Chattanooga Staffing did not dispute her entitlement to temporary total disability benefits from April 9, 2019, forward, which is when Dr. Alex Sielatycki, panel physician, took Ms. Harrison completely off work.

> Ms. Harrison later selected Physicians Care from a panel. Care on July 23, and the provider restricted her to right-arm use only with continued use of the sling as needed.

Physicians Care kept Ms. Harrison on the same restriction until it referred her to Dr. Justin Arnold, an orthopedist, on August 22. However, she also saw Dr. Mendoza on that day, and he retroactively took Ms. Harrison completely off work from July 18 “until she has complete return of function in her L arm and shoulder.” After seeing Dr. Arnold on August 29, he restricted Ms. Harrison to no lifting with her left arm and no overhead work. Both parties offered testimony regarding these restrictions and their application to Ms. Harrison’s work.

Suzanne Jesucat, Director of Chattanooga Staffing, testified through a December 3 written declaration. She learned of Ms. Harrison’s restrictions on August 30 and called her the same day to offer her light-duty beginning on August 31, which Ms. Harrison refused. Ms. Jesucat stated the light-duty consisted of warming meals, performing very light housework, and accompanying a client to doctor appointments. Ms. Harrison testified she does not recall speaking with either Ms. Jesucat or anyone else from Chattanooga Staffing on August 30.

Separate from Ms. Jesucat’s written declaration, a letter signed by her on November 29 provided additional details about the light-duty offered. She stated the “light duty client” was someone Ms. Harrison knew since 2016, who was fully mobile and mostly independent. Ms. Jesucat indicated the work involved two- and three-hour shifts.

Ms. Harrison disputed Ms. Jesucat’s assertions regarding the abilities of this client. She stated that her now-deceased aunt, Annie Mae Jones, was her only permanent client since 2016. Ms. Harrison stated that Ms. Jones suffered a debilitating stroke on July 9, 2018, and afterward she required extensive assistance.

Aside from Ms. Jones, Ms. Harrison’s other clients were “fill-in” clients. When asked about Barbara Kohler, a fill-in client, Ms. Harrison stated that she assisted Ms. Kohler for approximately two to three months in 2017. Even if the unnamed client referenced by Ms. Jesucat were Ms. Kohler, Ms. Harrison stated that caring for her required use of both arms. She stated she performed the following tasks for Ms. Kohler: (1) cooked meals with an iron skillet; (2) cleaned her kitchen; (3) assisted her into and out of the shower and washed her back; (4) performed housecleaning; (5) applied lotion to her body; and, (6) assisted her in dressing, including socks, shoes, and disposable undergarments. Further, Ms. Harrison testified she had to use both arms to assist Ms. Kohler even when seated because Ms. Kohler was “weaving” and “unsteady.”

After Ms. Jesucat’s call to Ms. Harrison on August 30, Chattanooga Staffing stopped her temporary disability benefits on August 31. The parties agreed that Ms.

2 Harrison received temporary partial disability benefits from July 23 through August 31 at the weekly compensation rate of $104.14. However, they agreed her correct compensation rate is $135.30.°

Findings of Fact and Conclusions of Law Standard Applied

At an expedited hearing, Ms. Harrison must present sufficient evidence to prove she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2018). The Court holds she did.

Temporary Disability Benefits

Ms. Harrison requested temporary disability benefits. The Court grants her request.

Ms. Harrison is eligible for TPD benefits if she earned less than her average weekly wage due to work restrictions. See Tenn. Code Ann. § 50-6-207(2)(A). The Court must consider the reasonableness of Chattanooga Staffing in attempting to return her to work and the reasonableness of Ms. Harrison in failing to return to work. Lasser v. Waste Mgmt., Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 20, at *14 (may 24, 2018).

Here, Ms. Harrison’s unrebutted testimony was that her aunt was the only permanent client she consistently cared for from 2016 forward, who had a debilitating stroke the week before the July 16, 2018 work injury. Even if the unnamed client referenced by Ms. Jesucat were Ms. Kohler, Ms. Harrison’s unrebutted testimony proved that Ms. Kohler’s caregiver must use both arms to care for her. When considering the testimony and reasonableness of the actions of both parties, the Court finds that Ms. Harrison’s refusal to work the light-duty Chattanooga Staffing offered was reasonable. Therefore, the Court holds she is entitled to temporary partial disability benefits from September 1, 2018, through April 8, 2019.

IT IS, THEREFORE, ORDERED as follows:

1. Chattanooga Staffing shall pay past-due temporary partial disability benefits at the weekly compensation rate of $135.30 in the lump-sum amount of $4,252.29 for the period from September 1, 2018, through April 8, 2019. It shall also pay Ms. Harrison $178.05 for the underpayment from July 23, 2018, through August 31, 2018. As agreed by Chattanooga Staffing, it shall pay past-due temporary total

* Following the Expedited Hearing, Chattanooga Staffing filed a Motion to Reopen Proof. The Court addressed that motion in a separate order. disability benefits from April 9, 2019, through June 10, 2019, which totals $1,217.70. Further, Chattanooga Staffing shall deduct $62.00 for an outstanding child support lien upon receipt of proper documentation and submission of the lien balance, if any, from Ms. Harrison.

2. Chattanooga Staffing shall continue to pay to Ms. Harrison temporary total disability benefits in regular intervals until she is no longer eligible for those benefits by reaching maximum medical improvement, by returning to work at a wage equal to or greater her average weekly wage, or by release without restrictions by Dr. Sielatycki. Chattanooga Staffing’s representative shall immediately notify the Bureau, Ms. Harrison, and her counsel of the intent to terminate temporary disability benefits by filing Form C-26, citing the basis for the termination.

3. This matter is set for a Status Hearing on Tuesday, August 13, 2019, at 10:00 a.m. Eastern Time. You must call 423-634-0164 or toll-free at 855-383-0001 to participate. Failure to call may result in a determination of the issues without your participation.

4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance with this Order must occur no later than seven business days from the date of entry of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The Insurer or Self-Insured Employer must submit confirmation of compliance with this Order to the Bureau by email to WCCompliance.Program@tn.gov no later than the seventh business day after entry of this Order. Failure to submit the necessary confirmation within the period of compliance may result in a penalty assessment for non-compliance.

5. For questions regarding compliance, please contact the Workers’ Compensation Compliance Unit via email at WCCompliance.Program(@tn.gov.

ENTERED June 10, 2019.

- My,

(\ LA ne ALK} Weal AM Judge Audrey A( Headrick Court of Workers’ Compensation Claims APPENDIX

Exhibits: Affidavit of Elizabeth Harrison First Report Wage Statement Panels Notice of First Payment of Compensation Written Declaration of Suzanne Jesucat Medical records of Elizabeth Harrison with a Table of Contents: a. DACHC UMA Clinic b. Physicians Care c. Justin M. Armold, M.D. d. J. Alex Sielatycki, M.D. 8. Medical records of Andrew E. Mendoza, M.D. 9. Suzanne Jesucat’s letter dated November 29, 2018 10. Photo of Annie Mae Jones 11. Job description UD Only 1) 12. Text messages (ID Only 2)

at ok A ee he

Technical record: 1. Petition for Benefit Determination

Dispute Certification Notice

Notice of Show Cause Hearing

Show Cause Order

Request for Expedited Hearing

Notice of Expedited Hearing

Motion to Continue

Pre-Hearing Brief of Employer and Insurer

9. Order Granting Motion to Continue

10. Order Setting Expedited Hearing

11. Second Pre-Hearing Brief of Employer and Insurer

12.Employer’s Motion to Quash Employee’s Subpoena of Suzanne Jessicat to Testify

13.Employer’s Amended Motion to Quash Employee’s Subpoena of Suzanne Jessicat to Testify

14. Notice of Appearance

15. Witness and Exhibit List

16. Prehearing Brief of Elizabeth Harrison

17. Amended List of Witnesses and Exhibits

18.Order Granting Motion to Quash Employer’s Subpoena of Suzanne Jessicat to Testify

yo SS a ed be 19. Amendment to Witness List 20. Motion to Reopen Proof 21. Objection of Elizabeth Harrison to Employer’s Motion to Reopen Proof CERTIFICATE OF SERVICE

I certify that a copy of this Expedited Hearing Order was sent as indicated below on June 10, 2019.

Name Certified Email Service sent to: Mail Charles G. Wright, Jr., x wrightandwoodard@gmail.com Employee Attorney Fred Baker, x fbaker(@wimberlylawson.com Courtney Hart, 4 chart(@wimberlylawson.com Employer Attorneys

~ . \/ ) C\ ‘¢ (Ak {A JWALYARE IN Wess a Ly Cy, Penny Shrum, Glerk of Court eo Tin y

Court of Workers’ Compensation Claims WC.CourtClerk@tn.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 delivéry 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.

Filed Date Stamp Here Docket #: Tennessee Division of Workers’ Compensation www. abor-wid/weomp,shtm! State File #/YR: —_ we.courtclerk@tn.gav 1-800-332-2667 RFA #:

Date of Injury: SSN:

Employee

Employer and Carrier

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 Medical benefits for current injury CL] Medical benefits under prior order issued by the Court

List of Parties

Appellant (Requesting Party): At Hearing: UEmployer D Employee 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 Appellont *

LB-1099_ rev.4/15 Page 1 of 2 RDA 11082 Employee Name: SFH: DOI:

Appellee(s) Appellee (Opposing Party): __At Hearing: Employer DlEmployee

Appellee’s Address:

Appellee’s Phone: Email: Attorney's Name: BPR#: Attorney's Address: Phone:

Attorney's Email:

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

\, , certify that | have forwarded a true and exact copy of this 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_.

(Signature of appellant or attorney for appellant]

L8-1099_ rev.4/15 Page 2 of 2 RDA 11082 Tennessee Bureau of Workers’ Compensation 220 French Landing Drive, I-B

I,

Nashville, TN 37243-1002

AFFIDAVIT OF INDIGENCY

800-332-2667

, 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:

3. Telephone Number:

5. Names and Ages of All Dependents:

6. |am employed by:

2. Address:

4. Date of Birth:

Relationship: Relationship: Relationship:

Relationship:

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 $ SSsl $ Retirement $ Disability $

Unemployment $ Worker's Comp.$ Other $

LB-1108 (REV 11/15)

per month per month per month per month per month per month per month

beginning

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 | 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