Fisher, Jessica v. Middle Tennessee Tanning DBA Sun Tan City , 2015 TN WC 50 ( 2015 )

FILED
May 18, 2015
T:'\ CO URT OF
WORKERS' COMPENSA TIO:'\
C LA~I S
Ti me: 4:07 P:\1
COURT OF WORKERS' COMPENSATION CLAIMS
DIVISION OF WORKERS' COMPENSATION
EMPLOYEE: Jessica Fisher DOCKET#: 2015-07-0017
STATE FILE #: 520-2015
EMPLOYER: Middle TN Tanning d/b/a DATE OF INJURY: December 29,2014
Sun Tan City JUDGE: Allen Phillips
INSURANCE CARRIERITPA: The Hartford
EXPEDITED HEARING ORDER
THIS CAUSE came before the undersigned Workers' Compensation Judge telephonically
on April 8, 2015, upon the Request for Expedited Hearing filed by the Employee, Jessica Fisher
(Ms. Fisher) on February 25, 2015, pursuant to Tennessee Code Annotated section 50-6-239 to
determine if the Employer, Middle TN Tanning d/b/a Sun Tan City (Sun Tan City), is obligated
to provide temporary disability benefits.
Michael A. Carter represented Ms. Fisher. Gary Nichols represented Sun Tan City.
Considering the applicable law, testimony of the witnesses, argument of counsel and the
technical record, this Court finds that Ms. Fisher is entitled to the requested benefits.
ANALYSIS
Issue
Whether Ms. Fisher is entitled to temporary disability benefits.
Evidence Submitted
The Court designated the following as the technical record:
• Petition for Benefit Determination
• Dispute Certification Notice
• Request for Expedited Hearing.
The Court did not consider attachments to the above filings not admitted into evidence
during the Expedited Hearing. The Court considered factual statements in the above filings and
their attachments as allegations unless established by the evidence.
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The Court admitted the following documents into evidence:
Exhibit 1: Medical Records of:
o Sports Orthopedics and Spine (pp. 10-19)
o OCCMed (pg. 20)
o West Tennessee Health Care (pp. 21-25)
Exhibit 2: Choice of Physician Form (C-42)
Exhibit 3: Wage Statement (stipulated minimum compensation rate)
Exhibit 4: Employee's Work Schedule.
Ms. Fisher testified on her own behalf. Ms. Amy Beswick testified for Sun Tan City.
History of Claim
Ms. Fisher worked part-time for Sun Tan City as a tanning consultant. On December 29,
2014, the door of a tanning bed fell on her left wrist. On December 30, 2014, Ms. Fisher went to
the emergency department of Jackson-Madison Co. General Hospital. The attending physician
diagnosed a wrist sprain and advised her to seek follow-up care within the next week.
Lat~r on December 30, 2014, she met with Ms. Jessica Penrod, a manager at Sun Tan
City. The two completed paperwork regarding the injury. Ms. Fisher testified that, on December
30, Ms. Penrod told her that she, Ms. Fisher, would be placed on the work schedule but that "she
[Ms. Penrod] would take care of the shifts and they would be covered." That arrangement was
"agreeable" to Ms. Fisher. To her knowledge, her upcoming shifts were covered and she did not
report to work as ofthe first week of January 2015.
On January 5, 2015, Ms. Fisher saw OccMed where the physician placed a restriction of
no use of the left arm. The restriction was to remain in effect until she was seen by an "ortho."
Ms. Fisher provided the note from OccMed to Ms. Penrod. Ms. Fisher testified that Ms. Penrod
again advised that she, Ms. Fisher, would be "on the schedule" but that "she would take care of
the shifts and [Ms. Fisher] would be removed from the schedule." Ms. Fisher remained
agreeable to the arrangement.
On January 15, 2015, Ms. Fisher saw Dr. Yakin. He placed Ms. Fisher on restricted duty
of "no use of her left arm." Despite her restriction, Ms. Fisher told Ms. Penrod that she believed
she could work. Ms. Penrod told her she would have to check with the district manager and "get
back with [her] because she did not understand how I could work cleaning the beds with one
hand." Ms. Fisher testified she did not receive a response from Ms. Penrod.
Ms. Fisher later received a text message from Sun Tan City regarding an upcoming
seminar. She did not attend the seminar since she was off work because ofthe injury. It was not
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what she described as a "regular work day schedule" text message like the ones she received in
the past regarding work schedules. About a week after injury, she did not receive any further text
messages regarding her work schedule.
Ms. Fisher testified that Sun Tan City never advised her that it had a job within her
restrictions or that it would make a job available to her. As of February 3, 2015, she again saw
Dr. Yakin, who then allowed her to work if wearing a wrist brace. She carried the note to Ms.
Penrod who asked for her available dates in the next scheduling period. Ms. Penrod stated she
was compiling the upcoming work schedule and would post it the following "Monday." Ms.
Penrod never notified Ms. Fisher of any available work at Sun Tan City. Ms. Fisher was "ready,
willing, and able to work." On a date not totally clear by her testimony, Ms. Fisher ceased to be
employed at her full-time job.
On cross-examination, Ms. Fisher stated she was aware that she was on the work
schedule in January. She also was aware that the "official" way to check the work schedule was
to go to the salon and read it rather than waiting for a text message. She voluntarily resigned
from Sun Tan City in late February 2015 because she did feel it was "a good idea" to continue
working given the "legal issues going on."
Ms. Amy Beswick testified on behalf of Sun Tan City. She is the director of operations
for all of Tennessee except for "the Nashville market." She testified the company generates the
work schedules at salons from an automated scheduling program. On each Thursday, based upon
the volume of business at a given location, the salon manager will enter information into the
program. Sun Tan City placed Ms. Fisher on each of the posted schedules in January at the
Jackson location. Though some managers do send text messages regarding the upcoming
schedules, the practice is not typical and is not the procedure recommended in the policy manual.
Ms. Beswick was aware of Ms. Fisher's restrictions of no use of the left arm. The Jackson
location could accommodate those restrictions and she advised the district manager to
accommodate Ms. Fisher. After Ms. Fisher did not appear for any of her scheduled shifts in
February, Ms. Beswick accepted her voluntary resignation via telephone.
Ms. Fisher's work schedules for January 2015 were admitted into evidence. On cross-
examination, Ms. Beswick testified that Sun Tan City makes its work schedules two (2) weeks
prior to the scheduled workweek, so Ms. Penrod would have completed the first schedule for
January, 2015 in December, 2014. Ms. Beswick confirmed with Ms. Penrod that Ms. Fisher was
on the January work schedule and sent an e-mail to the claims handler and attorney regarding
that fact. However, Ms. Beswick was not aware that Ms. Fisher's counsel had requested
information as to whether Sun Tan City had work available for Ms. Fisher within her restrictions.
Ms. Beswick also did not correspond personally with Ms. Fisher regarding Sun Tan City having
work available within her restrictions. She learned that Ms. Fisher was not working when she
presented a seminar in Jackson and Ms. Fisher was not present. Ms. Beswick had no personal
knowledge of how Ms. Fisher's shifts were covered, but testified that Ms. Fisher could have
worked with the restriction of no use of the left arm. On redirect, she clarified that Ms. Fisher
could be scheduled with someone who could clean beds for her while so restricted.
Ms. Jessica Penrod was present at the telephonic hearing and sworn as a witness. Sun Tan
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City did not call Ms. Penrod to testify.
Ms. Fisher's Contentions
Ms. Fisher argues that the issue is "who you believe." Ms. Fisher sustained a
compensable injury and approved physicians placed restrictions. Ms. Penrod told her that she did
not have to work. Instead, while on restrictions, Ms. Penrod would find "someone to cover for
her." Ms. Fisher and Ms. Penrod spoke on two (2) separate occasions regarding Ms. Penrod
having the shifts covered and Ms. Fisher did not think she needed to do anything further. Sun
Tan City's failure to call Ms. Penrod as a witness means the only proof in the record is Ms.
Fisher's testimony that Ms. Penrod told her that Sun Tan City would cover her shifts while she
was on restrictions. Because Sun Tan City did not offer work within her restrictions, she is
entitled to temporary benefits.
Sun Tan City's Contentions
While on restrictions, Ms. Fisher asked neither to work nor to have her shifts covered.
Her failure to work was voluntary. She was not only on the schedule, but was also scheduled to
work with another employee who might perform any task she was restricted from performing.
Therefore, the evidence shows that Sun Tan City had work available for Ms. Fisher within her
restrictions and she is not entitled to temporary benefits.
Additionally, Ms. Fisher only worked part-time for Sun Tan City and counsel was "not
going to presume why she took it," when referring to the job. Ms. Fisher had another job that
was full-time job during the relevant period.
Findings of Fact and Conclusions of Law
Standard Applied
For injuries on or after July 1, 2014, the employee must show that an injury arose primarily out
of and in the course and scope of employment. Tenn. Code Ann. § 50-6-102(13) (2014). Tennessee
Code Annotated section 50-6-239(c)(6) provides that the employee shall bear the burden of proving
each and every element of the claim by a preponderance of the evidence "unless the statute provides for
a different standard of proof." The statute provides a different standard of proof for an Expedited
Hearing where a workers' compensation judge may enter an interlocutory order for medical or
temporary benefits upon a determination that the injured employee would likely prevail at a hearing on
the merits given the evidence. Tenn. Code Ann. § 50-6-239(d)(1)(2014); McCord v. Advantage Human
Resourcing, No. 2014-06-0063 (Tenn. Work. Comp. App. Bd., March 27, 2015); cf., McCall v. Nat!.
Health Corp., 100 S.W.3d 209, 214 (Tenn. 2003). In making such determinations, the workers'
compensation law is not to be construed either remedially or liberally, but shall be construed fairly,
impartially, and in accordance with basic principles of statutory construction favoring neither the
employee nor the employer. Tenn. Code Ann.§ 50-6-116 (2014).
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Factual Findings
Ms. Fisher sustained a compensable left wrist injury on December 29, 2014. Sun Tan
City accepted the claim and provided medical treatment pursuant to the Workers' Compensation
Law. When placed on restrictions by authorized physicians, Ms. Fisher provided the physicians'
notes to Sun Tan City. Ms. Penrod, Ms. Fisher's manager, advised Ms. Fisher on two (2)
separate occasions that she, Ms. Fisher, would remain on the schedule but that Ms. Penrod would
arrange for other employees to cover her scheduled shifts while she was on restrictions. Ms.
Beswick had no personal knowledge of either what Ms. Penrod might have told Ms. Fisher
regarding either coverage of her shifts or regarding accommodation of Ms. Fisher's restrictions.
Ms. Fisher was willing to work within her restrictions had she been given the opportunity to do
so.
Application of Law to Facts
The Court finds that Ms. Fisher is entitled to the requested benefits. In so finding, the
Court notes the credible and uncontroverted testimony of Ms. Fisher. She presented as calm, at-
ease and self-assured. She did not appear hesitant, deceitful, or argumentative. Though appearing
by telephone, our Supreme Court has noted that telephonic testimony is more akin to live
testimony than is documentary evidence. Kelly v. Kelly, 445 S.W.3d 685, 694 (Tenn. 2014).
Here, only Ms. Fisher testified as to her actual interaction with Sun Tan City. While Sun Tan
City introduced evidence that Ms. Fisher was on the work schedule but failed to report to work,
Ms. Fisher's own testimony is not only more convincing, but also uncontroverted. Sun Tan City
did not call Ms. Penrod as a witness though available and already sworn. Tennessee law supports
a finding that the failure of a party to call a witness peculiarly within its power to produce, and
whose testimony "would naturally be favorable" to it, "creates an adverse inference that the
testimony would not favor his contentions." State v. Middlebrooks, 840 S. W .2d 31 7, 3 34 (Tenn.
1992).
Sun Tan City also argues that Ms. Fisher only worked part-time there and that she
maintained a full-time job elsewhere. Such is irrelevant to the finding herein. Tennessee law is
clear that, when calculating any entitlement to benefits under the law, only the wages earned in
the employment producing the injury are to be included and not wages from an unrelated and
concurrent job. Acklie v. Carrier, 785 S.W.2d 355, 359 (Tenn. 1990). Ms. Fisher's loss of wages
because of her injury at Sun Tan City, albeit loss of wages from a part-time job, actuates her
entitlement to benefits.
Ms. Fisher argues that she is entitled to temporary total disability (TTD). TTD is payable
to an injured employee who is totally disabled to work by his injury and while she is recovering
as far as the nature of the injury permits. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 776
(Tenn. 2000). Under Tennessee law, to establish entitlement to temporary total benefits, the
employee must show she was (1) totally disabled to work by a compensable injury; (2) that there
was a causal connection between the injury and her inability to work; and (3) the duration of that
period of disability." !d. TTD benefits terminate when an employee demonstrates the ability to
return to work or attains MMI. Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978). Here,
Ms. Fisher has not demonstrated by the evidence submitted that she was totally disabled from
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working. Instead, she had restrictions on her activities. Thus, she is not entitled to temporary
total disability benefits for the requested period.
However, Ms. Fisher has shown entitlement to temporary partial disability (TPD)
benefits. TPD refers to the time during which the injured employee is able to resume some
gainful employment but has not yet reached maximum recovery. Williams v. Saturn Corp., No.
M2004-01215-WC-R3-CV, 2005 LEXIS 1032, *3 (Tenn. Workers' Comp. Panel, November 15,
2005). As with TTD, there must be adequate proof of a causal connection between the injury and
the disability for an award of TPD. The Court finds Ms. Fisher has demonstrated the likelihood
of prevailing at a hearing on the merits as to an inability to work within her restrictions for Sun
Tan City. The evidence supports a finding that Sun Tan City neither made available, nor
communicated to Ms. Fisher, the availability of work within her restrictions.
TPD is two-thirds (2/3) of the difference between the average weekly wage and what the
employee is able to earn in her partially disabled condition. Tenn. Code Ann. § 50-6-
207(2)(2014). Here, the average weekly wage, as stipulated by the parties, is such as to entitle
Ms. Fisher to the minimum weekly benefit. (Ex. 3). Ms. Fisher was not, due to her restrictions,
able to earn a wage during the requested period. Therefore, her TPD rate is $127.20. She is
entitled to TPD from December 29, 2014, until February 3, 2015, when released to return to
work without restrictions.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Fisher shall recover temporary partial disability benefits from Sun Tan City, or its
workers' compensation carrier, for the requested period of December 29, 2014, through
February 3, 2015, at the rate of$127.20 per week, or $653.81.
2. This matter is set for Initial Hearing on August 3, 2015, at 9:00AM Central Time.
3. Unless interlocutory appeal ofthe Expedited Hearing Order is filed, compliance with this
Order must occur no later than seven (7) business days from the date of entry of this
Order as required by Tennessee Code Annotated section 50-6-239(d)(3) (2014). The
Insurer or Self-Insured Employer must submit confirmation of compliance with this
Order to the Division by email to WCCompliance.Program@tn.gov no later than the
seventh (7th) 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.
4. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit via email WCCompliance.Program@.tn.gov or by calling (615) 253-
1471 or (615) 532-1309.
ENTERED this the 18th day of May, 2015.
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Allen Phillips, Ju e
Court of Workers' ompensation Claims
Initial Hearing:
An Initial Hearing has been set with Judge Allen Phillips, Court of Workers'
Compensation Claims. You must dial in at 731-422-5263 or 855-543-5038 toll free to
participate in your scheduled conference.
Please Note: You must call in on the scheduled date/time to participate. Failure to call
in may result in a determination of the issues without your further participation. All
conferences are set using Central Time (CT).
Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal
the decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, you
must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven (7) business days of the date
the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Request for Appeal upon the opposing party.
4. The parties, having the responsibility of ensuring a complete record on appeal, may
request from the Court Clerk the audio recording of the hearing for the purpose of having
a transcript prepared by a licensed court reporter and filing it with the Court Clerk within
ten (10) calendar days of the filing of the Expedited Hearing Notice of
Appeal. Alternatively, the parties may file a statement of the evidence within ten (1 0)
calendar days of the filing of the Expedited Hearing Notice of Appeal. The Judge must
approve the statement of the evidence before the Clerk of Court shall submit the record to
the Clerk of the Appeals Board.
5. If the appellant elects to file a position statement in support of the interlocutory appeal,
the appealing party shall file such position statement with the Court Clerk within three (3)
business days of the filing of the Expedited Hearing Notice of Appeal, specifying the
issues presented for review and including any argument in support thereof. If the
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appellee elects to file a response in opposition to the interlocutory appeal, appellee shall
do so within three (3) business days of the filing of the appellant's position statement.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to
the following recipients by the following methods of service on this the 18th day of May, 2015.
19th
Name Certified First Via Fax Via Email Address
Mail Class Fax Number Email
Mail
Michael A. Carter X michael@crockerandcarter.com
Gary Nichols X Gary .nichols@thehartford.com
~Ufo--- ~
P urn, Clerk of Court
C orkers' Compensation Claims
WCCourt.clerk@tn.gov
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