Stocklin, YZ v. Barrett Distribution ( 2019 )

FILED
Feb 06, 2019
10:20 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
YZ STOCKLIN, ) Docket No. 2017-08-1014
Employee, )
v. )
BARRETT DISTRIBUTION, ) State File No. 59533-2015
Employer, )
and )
AMGUARD INSURANCE CO., ) Judge Joshua Davis Baker
Carrier. )
COMPENSATION HEARING ORDER
The Court convened a compensation hearing on January 24, 2019. The main legal
issue is whether Mr. Stocklin is permanently and totally disabled. Considering his
anatomical impairment, physical limitations and pain, work history, testimony and the
local job market, the Court holds Mr. Stocklin is permanently and totally disabled.
History of Claim
Mr. Stocklin, born October 13, 1959, is a fifty-nine-year-old resident of Shelby
County, Tennessee. He graduated high school and has an associate’s degree in criminal
justice. After graduating, he worked for one year as a prison guard. He applied for a
state trooper position but did not get the job. Afterward, Mr. Stocklin worked warehouse
jobs and eventually worked for Barrett Manufacturing. He worked for Barrett for fifteen
years and was promoted to warehouse manager before suffering a severe injury.
On July 17, 2015, Mr. Stocklin arrived at Barrett early and noticed that the
entrance’s large metal gate, weighing approximately 2,500 pounds, was only partially
opened. He stopped his car to open the gate. As he opened it, the gate support collapsed,
and the gate fell on him. Mr. Stocklin suffered near-amputation of his left foot at the
ankle and also injured his back and left knee. He immediately went to the hospital for
surgery.
Barrett accepted the claim, and several physicians treated Mr. Stocklin. Dr.
Francis Camillo diagnosed a low back vertebral fracture and treated him conservatively.
Dr. Edward Perez performed two surgeries to Mr. Stocklin’s left ankle to treat his open
wound and insert hardware to repair his compound fracture. Dr. Frederick Azar
diagnosed a posterior cruciate ligament (PCL) tear and performed arthroscopic surgery
after conservative treatment failed. In total, his injuries collectively resulted in fourteen-
percent whole body impairment.1
Dr. Perez and Dr. Azar both restricted Mr. Stocklin to sedentary work. In addition
to this restriction, Dr. Perez certified that he could not return to his prior occupation due
to the severity of his injury. However, he also stated that Mr. Stocklin “can work in
many other things that do not require the physical amount of work relative to his previous
job.” Dr. Perez placed Mr. Stocklin at maximum medical improvement on April 20,
2017. Mr. Stocklin never returned to Dr. Perez after his release.
Mr. Stocklin testified that the accident continues to cause intense pain requiring
medication. He cannot sit or stand for long periods of time and must switch positions
often to relieve his pain. He only sleeps about four hours per night, and the pain
medication makes him drowsy. Mr. Stocklin described being in a “fog” after taking the
medication, which was testimony his wife echoed. Mr. Stocklin stated that when he
drove his daughter to school—a trip of only seven miles—he sometimes fell asleep in the
car line. For this reason and due to his inability to sit for extended periods, Mr. Stocklin
testified he cannot travel.
Mr. Stocklin missed a significant amount of work due to his injuries and received
temporary disability benefits during his absence. He earned $1,217.57 per week,
resulting in a weekly compensation rate of $730.53.
Two vocational experts, Dr. David Strauser and Mr. David Earl Stewart, evaluated
Mr. Stocklin and reached opposite conclusions. Dr. Strauser determined that Mr.
Stocklin experienced “a complete loss of earning capacity” because of the accident and
could only perform sedentary work. He testified that although Mr. Stocklin has a college
education, solid work history, and managerial experience in a warehouse setting, his
constant pain in conjunction with his inability to walk without a cane and maintain a
seated or standing position for more than a few minutes at a time prohibit him from
finding and maintaining a new job. He also said the constant pain would make it hard for
him to learn the requirements of a new position.
1
Dr. Perez assigned eight-percent impairment, Dr. Azar assigned one percent, and Dr. Camillo assigned
five percent.
2
Mr. Stewart stated that Mr. Stocklin suffered a forty-six percent vocational
disability based on his physical limitations, education and work history. Mr. Stewart did
not factor in Mr. Stocklin’s complaints of pain, non-prescribed use of a cane, and use of
pain medication when reaching his opinion, since he considered these factors too
subjective to incorporate into the analysis.
Despite finding that Mr. Stocklin suffered only a forty-six percent vocational
disability, Mr. Stewart identified only eleven open positions in the greater Memphis area
suitable for Mr. Stocklin. Five of these eleven positions were in the security industry.
Dr. Strauser testified that Mr. Stocklin could not maintain any of the identified jobs.
In addition to the positions Mr. Stewart identified, Barrett also engaged Work
Finders to seek a position for Mr. Stocklin. Work Finders contacted him in the fall of
2018 to discuss an opportunity as a warehouse manager. Mr. Stocklin said that he
received the call without warning and had no idea who Work Finders represented, so he
declined.
Findings of Fact and Conclusions of Law
Mr. Stocklin must prove all elements of his case by a preponderance of the
evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2018). As the parties agreed, Mr. Stocklin
suffered a compensable accident resulting in permanent impairment and has the right to
future medical treatment for his injuries.
Permanent Disability
The central legal issue is whether he is permanently and totally disabled. The
Court finds that he is.
When an injury “totally incapacitates the employee from working at an occupation
that brings the employee an income, the employee shall be considered totally disabled[.]”
Tenn. Code Ann. § 50-6-207(4)(B). The assessment of permanent total disability is
based on numerous factors, including the employee’s skills and training, education, age,
local job opportunities, and the capacity to work at the kinds of employment available in
the disabled condition. Roberson v. Loretto Casket Co., 722 S.W.2d 380, 384 (Tenn.
1986). Although a rating of anatomical disability by a medical expert is also one of the
relevant factors, “the vocational disability is not restricted to the precise estimate of
anatomical disability made by a medical witness.” Henson v. City of Lawrenceburg, 851
S.W.2d 809, 812 (Tenn. 1993). In addition, the employee’s “own assessment of [his]
physical condition and resulting disability is competent testimony that should be
considered[.]” McIlvain v. Russell Stover Candies, Inc., 996 S.W.2d 179, 183 (Tenn.
3
1999).
In considering these factors, the Court holds that Mr. Stocklin cannot find and
maintain work to provide income because of his constant pain, physical limitations, age,
work history, and the local job market. Mr. Stocklin can neither sit nor stand for more
than a short period of time, and he uses a cane to walk. The Court noticed that
throughout the hearing, Mr. Stocklin repeatedly switched positions and was in obvious
pain. He takes pain medication that makes him drowsy and affects his driving.
While Mr. Stocklin has a college education and extensive work background in
warehouse operations and management, the Court finds neither of these factors assistive
in gaining employment. He has an associate’s degree in criminal justice but worked in
the field for only one year as a prison guard, so he has no managerial experience in
criminal justice. Additionally, his physical limitations, especially his inability to sit or
stand for more than a few minutes, would prevent him from performing law enforcement
or security work. Mr. Stocklin could not chase a suspect or protect others or property
from harm in his physical condition.
These same physical limitations preclude Mr. Stocklin from further work in
warehouse management. While he has extensive experience in this setting, Mr. Stocklin
testified that all of these positions still require physical labor. He said that although he
supervised others, he still performed general warehouse duties such as packaging and
transporting items in the warehouse and driving a forklift when filling in for absent
employees. Because he can no longer do any of those tasks, the Court holds he could not
find and maintain work as a warehouse manager.
The Court also finds that Mr. Stocklin’s age would adversely affect his
employment search. Although he has a solid work history and ability to learn new tasks,
he is now fifty-nine years old and has been out of the workforce for several years. Plus,
as Dr. Strauser stated, his constant pain would inhibit his ability to learn new workplace
skills.
The local job market is also not favorable for Mr. Stocklin, as the proof showed
very few jobs available in his disabled condition. Dr. Strauser did not provide a labor
market analysis after determining Mr. Stocklin could not work. Also, Mr. Stewart could
only identify eleven open positions suitable for Mr. Stocklin. Of those eleven positions,
five involved security work, which the Court finds he could not perform. Additionally,
no proof suggested that Mr. Stocklin could perform the duties of the warehouse
management position suggested through Work Finders.
Finally, Mr. Stocklin believes he can no longer work. The Court found him
credible. His extensive, unblemished work history leads the Court to believe that Mr.
4
Stocklin would work if he could.
For all these reasons, the Court holds that Mr. Stocklin is permanently and totally
disabled. He is, therefore, entitled to weekly benefits from April 21, 2017, the day after
MMI,2 “until [he] is, by age, eligible for full benefits in the Old Age Insurance Benefit
Program under the Social Security Act.” See Tenn. Code Ann. § 50-6-207(4)(A)(i).
Attorney Fee and Recalculated Award
Before the Court can award an attorney fee in excess of $10,000, Tennessee Code
Annotated section 50-6-226(a)(2)(C) requires specific findings of the factors in
Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.5, which include:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services;
(8) whether the fee is fixed or contingent;
(9) prior advertisements or statements by the lawyer with respect to the fees
the lawyer charges; and
(10) whether the fee agreement is in writing.
The Court finds this case required significant time and expertise on the part of Mr.
Stocklin’s counsel. A fee of twenty percent is both statutorily-authorized and customary
in cases brought before this Court. Further, the amount is appropriate for successfully
shepherding a complicated case through litigation, including detailed medical proof from
three physicians and vocational experts. All the applicable factors, including the
experience and ability of Mr. Stocklin’s attorney, favor the requested fee.3 Therefore,
under Tennessee Code Annotated section 50-6-207(4)(A)(ii)(a) and section 50-6-
2
“Permanent disability benefits, whether total or partial, begin accruing on the date that the employee
attains maximum medical improvement.” Smith v. U.S. Pipe & Foundry Co., 14 S.W.3d 739, 745 (Tenn.
2000).
3
Mr. Stocklin’s counsel filed an affidavit concerning her fee after conclusion of the trial. The Court also
considered the affidavit in making the fee decision.
5
207(4)(A)(iii), the Court commutes twenty percent of the first 450 weeks of permanent
total disability benefits, or $65,747.70, for Mr. Stocklin’s attorney fee.
Additionally, Tennessee Code Annotated section 50-6-207(4)(A)(ii)(c) provides:
After the total amount of the commuted lump sum is determined, the
amount of the weekly disability benefit shall be recalculated to distribute
the total remaining permanent total benefits in equal weekly installments
beginning with the date of entry of the order and terminating on the date the
employee’s disability benefits terminate pursuant to subdivision (4)(A)(i).
Mr. Stocklin will be eligible for full benefits in the Old Age Insurance Benefit
Program on August 13, 2026. The period from April 20, 2017, to August 13, 2026, totals
486.14 weeks, which at the compensation rate of $730.53 totals benefits of $355,159.30.
Reducing that amount by the attorney fee of $65,747.70 yields an adjusted total benefit of
$289,411.60. This amount divided by 486.14 weeks equals an adjusted weekly
compensation rate of $595.33. Barrett shall pay Mr. Stocklin’s disability benefits at this
rate.
IT IS, THEREFORE, ORDERED as follows:
1. Barrett shall pay Mr. Stocklin a lump sum of $44,343.11, which is the amount
permanent disability benefits accrued from April 21, 2017, to February 1,
2019, minus a credit of $12,105.93 for temporary disability overpayment and
advance of permanent disability benefits.
2. Barrett shall continue to make permanent total disability payments to Mr.
Stocklin at the rate of $595.33 per week until he becomes eligible for full
social security retirement benefits on October 13, 2026.
3. Barrett shall provide Mr. Stocklin with future reasonable and necessary
medical treatment for his injuries.
4. The Court further finds Mr. Stocklin’s counsel, Monica Rejaei, is entitled to a
fee of twenty percent, or $65,747.70, of the permanent total disability award.
The Court commutes this portion of the award to a lump sum. Ms. Rejaei may
submit a motion for discretionary costs, unless the parties reach an agreement
on this issue.
5. Barrett Manufacturing shall pay court costs of $150.00 to the Court Clerk.
6
6. Barrett Manufacturing shall prepare and submit to the Court Clerk a Statistical
Data Form (SD2) within ten business days of this order becoming final.
7. Absent an appeal to the Appeals Board, this order shall become final thirty
days after issuance.
ENTERED ON FEBRUARY 6, 2019.
_____________________________________
Judge Joshua Davis Baker
Court of Workers’ Compensation Claims
7
APPENDIX
Exhibits:
1. Dr. Strauser’s CV
2. Dr. Strauser’s report
3. Dr. Perez’s deposition and attachments
4. Dr. Camillo’s deposition and attachments
5. Dr. Azar’s deposition and attachments
6. Dr. Perez’s physician certification form
7. Medical records filed January 10, 2019
8. Photograph
9. Mr. David Earl Stewart’s report
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Scheduling Hearing Order
4. Barrett’s Witness and Exhibit List
5. Mr. Stocklin’s Witness List
6. Mr. Stocklin’s Exhibit List
7. Barrett’s Pre-Compensation Hearing Statement
8. Mr. Stocklin’s Pre-Compensation Hearing Statement
9. Barrett’s Brief
10. Mr. Stocklin’s Brief
8
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was sent to the following
recipients by the following methods of service on February 6, 2019.
Name Certified First Via Service sent to:
Mail Class Email
Mail
Monica Rejaei, X mrejaei@nstlaw.com
Employee’s Attorney cmcgrath@nstlaw.com
Teri Bernal, X tbernal@chartwelllaw.com
Employer’s Attorney
_____________________________________
Penny Shrum, Clerk
Court of Workers' Compensation Claims
WC.CourtClerk@tn.gov
9
II
I 'I
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: "Compensation Hearing 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 ofthe 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 lndigency 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.
II I.
' I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I 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:_ _ _ _ __ _ _ _ _ __ 2. Address: - - - - - - - -- - - --
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - -- - - -- -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -
- - - - - - - - - - - - - -- -- Relationship: - - - - - -- - - -- - -
- - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -
6. I am employed by: - - - - - - - - - - -- - - -- - - - - - -- - - -- - -
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. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ! ~ li
I
'
Rent/House Payment $ per month Med icai/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
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
____ dayof _____________________ , 20_ __
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ _ __
LB-1108 (REV 11/15) RDA 11082