Mosley, Amanda v. HG Staffing, LLC

FILED
Jan 14, 2022
07:15 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT COOKEVILLE
AMANDA MOSLEY, ) Docket No 2019-04-0064
Employee, )
v. )
HG STAFFING, LLC, ) State File No. 7907-2019
Employer, )
And )
CAROLINA CAS. INS. CO., ) Judge Robert Durham
Carrier. )
EXPEDITED HEARING ORDER GRANTING TEMPORARY PARTIAL
DISABILITY BENEFITS
Ms. Mosley asked the Court to order HG Staffing to provide additional temporary
partial disability benefits for her right wrist and hand injuries. HG Staffing asserted that
Ms. Mosley was not entitled to those benefits, since she was terminated for cause and did
not prove the extent of her temporary disability through expert medical opinion. After
considering the record, the Court holds that Ms. Mosley is entitled to additional
temporary partial disability benefits.
History of Claim 1
This is the third expedited hearing in this case. To recap the previous hearings, in
the first Expedited Hearing Order, the Court held that Ms. Mosley was likely to prove she
sustained a work-related injury on January 10, 2019, to her right hand and wrist. 2 The
Court ordered HG Staffing to pay temporary partial disability benefits from April 8
1
The parties agreed to the admission of the exhibits and testimony introduced at the previous Expedited
Hearings. The parties also stipulated that HG Staffing paid temporary partial disability benefits from
April 8 through June 20, 2019, and for one week after her surgery in 2021 at the agreed compensation rate
of $293.62. Finally, the parties stipulated that Ms. Mosley worked for two weeks at a nursing home after
her injury before quitting because of pain and would not be entitled to temporary disability benefits for
that time.
2
HG Staffing did not offer any additional medical evidence to challenge causation at this hearing.
1
through June 20, 2019, but it denied Ms. Mosley’s request for additional temporary
disability benefits and medical treatment with her unauthorized doctor, Roy Terry. In the
second Expedited Hearing Order, the Court ordered the surgery recommended by Dr.
Terry but found that Ms. Mosley did not present sufficient medical proof of the duration
and extent of any temporary disability.
In this hearing, Ms. Mosley is seeking temporary disability benefits from January
28, 2019, through October 28, 2021, less any payments already made by HG Staffing.3
Thus, the Court will summarize the evidence previously presented as to temporary
disability as well as the new evidence.
The evidence from the first hearing showed that HG Staffing, an employment
agency, hired Ms. Mosley in September 2018 to work at Dana Corporation. Ms. Mosley
believed she was “doing great” and would soon be offered a full-time position. However,
she sustained a work-related injury to her hand and wrist in January 2019, and she told
her supervisor at Dana of her injury. She testified that the supervisor modified her duties
but advised her against giving formal notice of an injury because she could lose her job.
Ms. Mosley’s symptoms persisted, and a safety coordinator at Dana insisted she
file an accident report, which she did on January 25. Dana sent an email to HG Staffing
later that day stating, without clarification, that it would be in “everyone’s best interests”
to terminate Ms. Mosley’s assignment. HG Staffing then terminated Ms. Mosley’s
employment on January 28 and told her it was due to her performance.
At this hearing, the only evidence HG Staffing introduced as to Ms. Mosley’s
performance at Dana included undated, unsigned forms provided by Dana and designated
as thirty- and sixty-day performance reviews. The first review stated that Ms. Mosley
performed satisfactorily in all categories. The second review found that Ms. Mosley was
satisfactory in most categories, but she needed to show more initiative and be more
willing to assist co-workers. Dana did not offer a written ninety-day review form.
Denise Givens, Chief Operating Officer of HG Staffing, admitted at this hearing
that she did not have these evaluations at the time she terminated Ms. Mosley. Instead,
she obtained them after the first order finding that HG Staffing terminated Ms. Mosley
without cause. Ms. Givens further admitted that she still did not know about Ms.
Mosley’s alleged performance deficiencies other than what was in the sixty-day
evaluation, and she agreed that Dana had not complained of Ms. Mosley’s attitude or
initiative before the termination. However, she testified that Dana would not do so, since
it did its own evaluations.
3
Dr. Terry found Ms. Mosley to be at maximum medical improvement on October 28, soon after the
Expedited Hearing was scheduled.
2
HG Staffing also introduced an affidavit from Timothy Pile, Training Coordinator
with Dana. The affidavit only stated that on January 25, Dana determined that it would
be in its “best interests to terminate Ms. Mosley from her assignment.” The affidavit
gave no details on Ms. Mosley’s alleged deficiencies or why termination was in Dana’s
“best interests.”
Ms. Mosley testified at this hearing that Dana never gave her the thirty- or sixty-
day evaluation forms, and she had no idea of any problems regarding job performance
until she received the email terminating her employment.
The parties introduced evidence regarding Ms. Mosley’s continued employment
with HG Staffing after the Dana assignment was terminated at the first hearing. Ms.
Givens testified that if an employee’s contract is terminated, she is taken off HG
Staffing’s records unless she reapplies for a new appointment. Thus, Ms. Mosley’s last
day of employment was January 28. Ms. Mosley responded that after her termination,
she called HG Staffing about a new assignment but was told nothing was available. Ms.
Givens said she had no knowledge of Ms. Mosley requesting another assignment and
stated that HG Staffing had jobs to accommodate any restrictions if Ms. Mosley had
remained employed.
At this hearing, Ms. Mosley admitted that, beginning two days after her
termination, she spent sixty-four days in jail for a probation violation. 4
After leaving jail, an authorized physician restricted Ms. Mosley from working
with her right hand for six weeks. He then released her to full duty with no impairment
or restrictions. Ms. Mosley testified that she then took employment at a nursing home,
despite still suffering from hand pain. She worked there for a few weeks, but the job
required significant right-hand use, and the pain forced her to quit.
After the nursing home, Ms. Mosley returned to Dr. James Rubright, an authorized
physician, who would not attribute her continued complaints to her January accident. HG
Staffing then denied Ms. Mosley’s claim, and she sought treatment with orthopedist Dr.
Terry. The Court ordered HG Staffing to authorize Dr. Terry to treat Ms. Mosley,
including surgery, as well as to pay temporary total disability benefits for the time Dr.
Rubright took her off work.
The Court reconsidered the issue of temporary disability benefits at the second
Expedited Hearing. Ms. Mosley introduced a C-32 from Dr. Terry that stated that, while
he never took Ms. Mosley off work, he felt that her condition required temporary
restrictions, and that she should only work “as tolerated.” Ms. Mosley testified at the
4
She could not remember the date she began her term but recalled it ended on April 4. Sixty-four days
earlier would be January 30,
3
hearing that she was extremely limited in using her right hand given the pain and
weakness she suffered in it. For example, she said that she dropped a bottle of cleaning
fluid while attempting to clean her floor and was sprayed in her eye. She did not believe
that she could find employment with her symptoms.
The Court held that Dr. Terry’s statement regarding temporary disability, even
when combined with Ms. Mosley’s lay testimony, was insufficient to justify a finding as
to the extent and duration of any temporary partial disability and denied benefits.
At this hearing, the evidence showed that Dr. Terry performed surgery on Ms.
Mosley’s wrist, and HG Staffing provided temporary total disability benefits for one
week after the surgery but denied any additional benefits. On October 28, 2021, Dr.
Terry found Ms. Mosley to be at maximum medical improvement with a one-percent
impairment. He also placed her under permanent restrictions of no repetitive use of her
right hand with a twenty-pound weight restriction. Dr. Terry additionally wrote a note
dated November 18, 2021, that stated Ms. Mosley was “temporarily disabled from
January 10, 2019 until October 28, 2021 when she was placed at maximum medical
improvement.”
Finally, Ms. Mosley testified at this hearing that she has not worked since the
nursing home. She contemplated applying at a department store but decided not to do so
after consulting Dr. Terry.
Findings of Fact and Conclusions of Law
The sole issue is whether Ms. Mosley is likely to prevail at trial on the issue of
temporary partial disability benefits from January 28, 2019, her last day of employment
with HG Staffing, through October 28, 2021, when Dr. Terry found her to be at
maximum medical improvement. See Tenn. Code Ann. § 50-6-239(d)(1) (2021).
To receive temporary disability benefits, Ms. Mosley must prove: (1) a disability
from working as the result of a compensable injury; (2) a causal connection between the
injury and the inability to work; and (3) the duration of the period of disability. See
Shepherd v. Haren Const. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 15, at *13
(Mar. 30, 2016). Where the disability is not total, the employee may recover temporary
partial disability benefits if the employee is able to resume some gainful employment but
has not reached maximum recovery. Id.HG Staffing disputed Ms. Mosley’s entitlement to temporary partial disability
benefits on two grounds: (1) it terminated her for cause, and it would have had work for
her within her disability had she not been fired, and (2) Ms. Mosley has not provided
sufficient evidence as to the duration and extent of her temporary disability. The Court
will address both contentions.
4
The termination-for-cause-defense applies in situations where temporary partial
disability benefits are sought and, but for the termination, the employee could have
returned to work despite her restrictions. See Woodard v. Freeman Expositions, LLC,
2021 TN Wrk Comp. App. Bd. LEXIS 21, at *9-10 (July 16, 2021). Woodard held that
an employer is entitled to enforce workplace rules, and an employee’s termination may
relieve the employer’s obligation from paying temporary partial disability benefits if: (1)
the actions allegedly precipitating the dismissal was a violation of workplace rules; and,
(2) those actions were the true motivation for the dismissal. Id.The Court previously held that Ms. Mosley was likely to prove that HG Staffing
did not terminate her for cause, and HG Staffing offered little evidence to change that
opinion. The alleged sixty-day evaluation was unsigned and undated. While it asserted
that Ms. Mosley was lacking in “initiative” and “teamwork,” it did not elaborate on these
alleged deficiencies. HG Staffing did not offer a ninety-day evaluation form, nor any
evidence from Dana, including Mr. Pile’s affidavit, that explained why Ms. Mosley’s
performance was inadequate.
Significantly, Ms. Givens admitted that she did not have these evaluations in hand
when she terminated Ms. Mosley on January 28, 2019, and in fact, she did not obtain
them until after the first Expedited Hearing Order. She further admitted she did not know
any details about Ms. Mosley’s job performance at Dana, and she terminated Ms. Mosley
based only on Dana’s email that it would be in “everyone’s best interests” to do so.
For her part, Ms. Mosley maintained she believed she was doing well in her job at
Dana. She denied ever seeing the alleged sixty-day evaluation or being advised that she
needed to improve in initiative or teamwork. She also maintained that her supervisor
warned her that if she gave notice of her injury, she would be let go. HG Staffing offered
no evidence to the contrary. Tellingly, when Ms. Mosley was compelled to provide
formal notice on January 25, Dana terminated her contract that day.
The Court continues to find Ms. Mosley to be a credible witness about her injury
and termination from Dana and HG Staffing. Given the evidence above, the Court holds
that Ms. Mosley is likely to prove that she was not terminated for cause, and her
termination does not prevent her from receiving temporary partial disability benefits.
The Court now considers whether Ms. Mosley is likely to prove the extent and
duration of her disability. Regarding extent, while Dr. Terry stated Ms. Mosley was
partially disabled from the date of injury until she reached maximum medical
improvement, he never placed any specific, temporary restrictions on her activities.
However, after she recovered from her surgery, he did assign permanent restrictions of
no repetitive use of her right hand and no lifting more than twenty pounds.
Likewise, Ms. Mosley testified without contravention that, before her surgery, she
5
suffered from significant pain and weakness in her right hand and did not believe she
could find a job she could perform. She tried to work at a nursing home for a few weeks
but was unable to continue in that job. Ms. Mosley also contemplated applying for a job
at a department store but decided not to do so after consulting with Dr. Terry.
Ms. Givens testified that HG Staffing would have had a job Ms. Mosley could
have performed had she not been terminated, but she did not give any specific examples.
Further, HG Staffing never offered her one, even though Ms. Mosley testified that she
asked for another job. Finally, given that the Court has determined that HG Staffing did
not terminate Ms. Mosley for cause, the Court finds that its position that it could have
accommodated Ms. Mosley’s restrictions to be of little value.
Thus, the Court holds that Ms. Mosley is likely to prove that HG Staffing did not
attempt to accommodate her restrictions after her injury, and these restrictions effectively
precluded her from finding gainful employment elsewhere. Thus, the Court holds that
she is entitled to benefits in the full amount of her compensation rate of $293.62 while
temporarily disabled.
As for duration, Dr. Terry gave an unequivocal opinion that Ms. Mosley was
temporarily disabled from January 10, 2019, through October 28, 2021, when he released
her at maximum medical improvement. Ms. Mosley corroborated this opinion through
her testimony that she did not work after her termination, other than a few weeks where
she attempted to work at a nursing home but found she was unable to do so. HG Staffing
did not offer any evidence to counter either Dr. Terry’s opinion or Ms. Mosley’s
testimony. The Court holds that Ms. Mosley is likely to prove she was partially disabled
from January 10, 2019, through October 28, 2021.
However, this does not mean that HG Staffing must pay disability benefits for the
entire period. Ms. Mosley admitted that she was in jail from January 30 through April 4,
2019. Thus, her inability to work was not due to her injury but to her incarceration, and
the Court holds that she is not entitled to temporary disability benefits for that time.
Likewise, she would not be entitled to temporary disability benefits for the two weeks she
worked at a nursing home. Finally, HG Staffing is entitled to a credit for the benefits it
paid from April 8 through June 20, 2019, as well as for one week following Ms. Mosley’s
surgery.
Thus, the Court holds that HG Staffing must pay Ms. Mosley $34,772.24, which
represents 122 weeks and five days of temporary partial disability benefits.
IT IS, THEREFORE, ORDERED THAT:
1. HG Staffing shall pay Ms. Mosley $34,772.24 in temporary partial disability
benefits.
6
2. This case is set for a Scheduling Hearing on February 25, 2022, at 9:00 a.m.
Central Time. The parties must call 615-253-0010 to participate. Failure to
appear might result in a determination of the issues without the party’s
participation.
3. 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 might result in a penalty assessment for non-compliance.
For questions regarding compliance, please contact the Workers’
Compensation Compliance Unit via email at
WCCompliance.Program@tn.gov.
ENTERED on January 14, 2022.
_____________________________________
ROBERT DURHAM, JUDGE
Court of Workers’ Compensation Claims
7
APPENDIX
Technical Record:
1. Request for Expedited Hearing
2. HG Staffing’s Pre-Trial Brief
3. HG Staffing’s Witness List
4. HG Staffing’s Exhibit List
Exhibits:
1. First Report of Injury
2. 1st Expedited Hearing Order
3. 2nd Expedited Hearing Order
4. Appeals Board Order
5. Affidavit of Tim Pile
6. Dr. Terry’s 11-18-21 Medical Note
7. C-32 from Dr. Roy Terry
8. Affidavit of Denise Givens
9. Transcript of 1-15-21 Expedited Hearing
10. Collective exhibits and testimony from previous Expedited Hearings
11. Attendance Sheet from Dana
12. Dr. Terry’s handwritten note
13. Dr. Terry’s medical record
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on January 14, 2022.
Name Certified Email Service sent to:
Mail
Amanda Mosley, X X 217 Hillcrest Drive
Employee Carthage, TN 37030
Ajmosl78@gmail.com
Rosalia Fiorello, X rfiorello@wimberlylawson.com
Employer
Attorney
_____________________________________
PENNY SHRUM, Court Clerk
WC.CourtClerk@tn.gov
8
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: “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 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 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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(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):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ 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): _________________________________________ ☐Employer ☐Employee
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 ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
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 I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, 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