Yarbough, Jerry v. Trueblue, Inc.

FILED
Aug 20, 2021
03:24 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
JERRY YARBOUGH, ) Docket No. 2020-08-0119
Employee, )
v. )
TRUEBLUE, INC., ) State File No. 37277-2019
Employer, )
And )
NEW HAMPSHIRE INS. CO., ) Judge Deana Seymour
Carrier. )
EXPEDITED HEARING ORDER
The Court held an Expedited Hearing on August 4, 2021, to determine Jerry
Yarbough’s entitlement to medical and temporary disability benefits. TrueBlue, Inc.
contended it paid all benefits to which Mr. Yarbough was entitled. Based on the proof
presented, the Court holds Mr. Yarbough is entitled to a panel of physicians, but he is not
entitled to temporary disability benefits at this time. Therefore, his request is granted in
part and denied in part.
History of Claim
Mr. Yarbough started working as an electrician for TrueBlue, a staffing agency, in
April 2019. He claimed injuries to the left side of his body after sustaining an electric
shock at work on May 22, 2019. 1 The next day he went to Concentra with complaints of a
left-hand burn following the electric shock. TrueBlue authorized treatment with Dr. John
Hayes at Concentra, but Mr. Yarbough did not select Concentra from a panel.
Dr. Hayes diagnosed Mr. Yarbough with an electrical injury and ordered physical
therapy for his left hand as well as an EKG. 2 He placed Mr. Yarbough on light-duty work
1
At the time of his injury, Mr. Yarbough lived in Memphis, TN. After filing his Petition for Benefit
Determination, he moved to the Seattle, Washington area.
2
Mr. Yarbough testified that he advised Dr. Hayes of heart problems during his first visit. While Dr.
Hayes’s office notes showed that he ordered an EKG, they did not provide the results.
1
restrictions and treated him conservatively through June 7, when he referred Mr.
Yarbough to a neurologist for a possible nerve conduction study. TrueBlue provided a
panel of neurologists, and Mr. Yarbough selected Dr. Steven Graham.
Dr. Graham determined on August 6 that Mr. Yarbough sustained no neuropathic
injury from the work accident. 3 According to Dr. Graham, Mr. Yarbough complained of
left-sided numbness while lying on his left side, which was associated with increased
heart rate. However, Dr. Graham explained that these complaints had “no
neuropathological correlation” and were “not associated with any type of shock injury.”
He placed Mr. Yarbough at maximum medical improvement from a neurological
standpoint with no permanent neurological impairment. He did not recommend any
further evaluation or treatment but advised that Mr. Yarbough could follow up as needed.
Mr. Yarbough testified that TrueBlue failed to provide any real medical care. He
noted that Dr. Hayes did not stitch or dress his left hand until he ordered a splint three
weeks after the accident. He also claimed that Dr. Graham did not examine him during
his visit but simply asked him questions. Mr. Yarbough further testified that Concentra
advised that TrueBlue had discontinued his treatment when he attempted to return to Dr.
Hayes.
At the time of the hearing, Mr. Yarbough continued to have severe pain on the left
side of his body. He complained of heart and circulation issues and two cracked teeth that
he related to his electrocution. Mr. Yarbough’s daughter, Raquel Tate, and her mother,
Marcell Tate, testified about his physical condition after the accident and specifically
mentioned his heart issues and his left-sided body pain. However, Mr. Yarbough did not
provide medical or dental records related to these issues.
Regarding his claim for temporary disability benefits, Mr. Yarbough testified that
he did not receive any income for over a year after his work injury. He also stated that he
never turned down light-duty work. According to Mr. Yarbough, he went back to work
on May 24 and watched OSHA videos for a few days until he was offered a light duty job
on May 29. He advised that he signed the light-duty job offer and worked in that capacity
until June 5 when TrueBlue offered him another light-duty job. He signed that offer letter
as well and worked in that position until June 10, when TrueBlue’s business manager,
Troy Rodgers, allegedly told him he could stop coming in and he would get him on
disability.
3
Mr. Yarbough moved the Court to exclude Dr. Graham’s report and C-30A from evidence, as the doctor
gave his opinions without physically examining him. The Court took the motion under advisement. After
consideration, the Court overrules the objection, finding the records admissible as they were signed by Dr.
Graham.
2
TrueBlue disputed whether Mr. Yarbough’s current need for treatment related to
the work accident. It relied on Dr. Graham’s conclusions that Mr. Yarbough reached
maximum improvement on August 6, 2019, and needed no additional evaluation or
treatment for his work-related injury. It argued that the opinion of Dr. Graham was
presumed correct, as he was Mr. Yarbough’s authorized treating physician. Moreover,
Mr. Yarbough offered no medical proof to the contrary.
Mr. Rodgers testified that TrueBlue offered Mr. Yarbough two light-duty
positions. However, he stated that Mr. Yarbough did not sign the offer letters. Mr.
Rodgers advised that Mr. Yarbough worked light duty on May 29 and 30 and June 5, 7,
and 10. 4 According to Mr. Rodgers, TrueBlue paid Mr. Yarbough $935.11 for those five
days, but Mr. Yarbough did not report back to work after June 10. Mr. Rodgers did not
recall a conversation where he told Mr. Yarbough not to return to work, and he claimed
that he did not have authority to put injured workers on disability. He testified Mr.
Yarbough was never taken off the employee roster, and TrueBlue would have found Mr.
Yarbough work had he contacted someone. He noted that as a staffing agency with
thousands of employees, TrueBlue relies on its employees to advise when they can work.
Findings of Fact and Conclusions of Law
At an Expedited Hearing, Mr. Yarbough must provide sufficient evidence from
which the Court can determine he is likely to prevail at a hearing on the merits. McCord
v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015).
Initially, Mr. Yarbough asks for additional medical care for his work injury. He
claims his left-sided pain and heart issues persist. He also alleges he sustained two
cracked teeth during the accident.
TrueBlue relies on Dr. Graham’s August 6, 2019 note to support its contention
that it provided Mr. Yarbough all the benefits to which he is entitled. It further contends
that Dr. Graham’s causation and treatment opinions are presumed correct, since he is Mr.
Yarbough’s authorized treating physician.
While Dr. Graham was selected from a panel, he only addressed Mr. Yarbough’s
neurological impairment and placed him at maximum medical improvement from a
neurological perspective. His opinions do not speak to other injuries and do not mention
whether Mr. Yarbough has sustained impairment or reached maximum medical
improvement from the standpoint of other medical specialties.
Further, Dr. Graham’s maximum medical improvement determination does not
4
Claims Manager Laurie Corwin’s affidavit supported this testimony.
3
end Mr. Yarbough’s entitlement to ongoing medical treatment for conditions related to
the work accident. See Kennedy v. Lakeway Auto Sales, Inc., No. E2010-02422-WC-R3-
WC, 2011 Tenn. LEXIS 842, at *8-10 (Aug. 30, 2011) (quoting Casey v. Shoney’s, Inc.,
845 S.W.2d 740, 742-44 (Tenn. 1992) for the proposition that “[i]n the absence of
evidence directed specifically to the issue” of termination of treatment, “the employer
must provide [the employee with] future, free reasonably necessary medical . . .
treatment” even after the employee is discharged from his treating physician).
Based on the evidence presented, Mr. Yarbough is likely to prevail in establishing
that the electric shock at work resulted in injury. While he has not yet proven the
compensability of his injuries by a preponderance of the evidence, he is entitled to be
seen by a physician for his complaints. Therefore, Mr. Yarbough is entitled to a panel of
Occupational Medicine or Physical Medicine and Rehabilitation physicians in his current
community near Seattle, Washington.
Mr. Yarbough also requests temporary disability benefits because he went without
income for a year after his accident. To prove entitlement to temporary disability
benefits, he must show (1) 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. Shepherd v. Haren Constr. Co., Inc., 2016 TN Wrk. Comp.
App. Bd. LEXIS 15, at *13 (Mar. 30, 2016).
Dr. Hayes placed Mr. Yarbough on light-duty restrictions on May 23, 2019, that
remained in place until August 6, when he saw Dr. Graham. However, Mr. Yarbough has
not been taken off work or placed on restrictions since his visit with Dr. Graham. Thus,
the duration of disability is May 23 through August 6, 2019.
During that period, Mr. Yarbough claimed he worked in a light-duty capacity from
May 24 to June 10. According to Mr. Rodgers, TrueBlue documented that he was paid
$935.11 for five days worked. However, without check stubs or other documentation
showing exactly when Mr. Yarbough worked and how much he earned, the Court cannot
determine if he is entitled to temporary disability while he was working light duty.
Further, the parties dispute the reasoning behind Mr. Yarbough’s failure to return
to work after June 10. TrueBlue argued that Mr. Yarbough failed to report back, which it
considered a rejection of its light-duty offer. Mr. Yarbough claimed Mr. Rodgers told him
he could stop coming in, which Mr. Rodgers denied. In cases such as this, the Court must
assess “the reasonableness of the employer in attempting to return the employee to work
and the reasonableness of the employee in failing to return to work.” Hackney v. Integrity
Staffing Solutions, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 29, at *12-13 (July 22,
2016). The Court finds Mr. Yarbough’s failure to return to work unreasonable.
4
Both parties agreed that TrueBlue offered Mr. Yarbough light duty on May 29 and
again on June 5, and that he worked light duty until June 10. However, due to what
appears to be a miscommunication, Mr. Yarbough did not return to work after June 10.
Moreover, after leaving work on June 10, he never contacted TrueBlue to ask about his
work status.
Mr. Rodgers did not remember telling Mr. Yarbough not to return to work, and he
emphatically denied that he had authority to place Mr. Yarbough on disability. According
to Mr. Rodgers, Mr. Yarbough was never taken off the employee roster, and TrueBlue
would have found him work had he contacted someone. He also noted that, as a staffing
agency with thousands of employees, TrueBlue relies on its employees to advise when
they can work. Based upon the foregoing, the Court holds that Mr. Yarbough is unlikely
to prevail at a hearing on his claim for temporary disability benefits at this time.
IT IS, THEREFORE, ORDERED as follows:
1. TrueBlue shall provide Mr. Yarbough with a panel of Occupational Medicine or
Physical Medicine and Rehabilitation physicians from which he may select his
authorized treating physician under Tennessee Code Annotated Section 50-6-204
(2020).
2. Mr. Yarbough’s request for temporary disability benefits is denied at this time.
3. This case is set for a Scheduling Hearing on October 4, 2021, at 9:30 a.m. Central
Time. The parties must call toll-free at 866-943-0014 to participate in the Hearing.
Failure to call might result in a determination of the issues without the party’s
participation.
ENTERED August 20, 2021.
____________________________________
Judge Deana C. Seymour
Court of Workers’ Compensation Claims
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Order on Show Cause Hearing
4. Request for Expedited Hearing
5. Rule 72 Declaration of Jerry Yarbough
5
6. Employer’s Pre-Hearing Statement
7. Employer’s Witness and Exhibit List
8. Employer’s Amended Witness and Exhibit List
9. Addendum to Employer’s Expedited Hearing Brief
10. Employer’s Notice of Filing Exhibits
11. Order on Pre-Hearing Conference
12. Employee’s Motion for Dismissal
13. Employer’s Response to Employee’s Motion to Dismiss
Exhibits
1. Dr. Graham’s 8/16/19 report
2. Final Medical Report
3. Wage Statement
4. Employee’s Choice of Physician form
5. Light Duty Work offers (Collective)
6. Affidavit of Laurie Corwin
7. Affidavit of Troy Rodgers
8. Rule 72 Declaration of Charlie Lanier
9. Dr. Hayes’s medical records for dates of service from 5/23/19 to 6/7/19
(Collective)
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on August 20, 2021.
Name Certified Via Via Service sent to:
Mail USPS Email
Jerry Yarbough, X jerryyarbough@gmail.com
Self-Represented
Employee
David Goudie, X dgoudie@morganakins.com
Employer’s Attorney
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
6
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