King, Anna v. Al's Foodland

COURT OF WORKERS' COMPENSATION CLAIMS
DIVISION OF WORKERS' COMPENSATION
ANNA M. KING, Docket No.: 2014-06-0051
Employee,
v. State File No.: 78537-2014
AL'S FOODLAND, Date of Injury: September 15, 2014
Employer,
and Judge: Pamela B. Johnson
EMPLOYERS PREFERRED INS. CO.
Insurance Carrier.
EXPEDITED HEARING ORDER
THIS CAUSE came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed by the Employee, Anna M. King (Ms. King), on October 29,
2014, pursuant to Tennessee Code Annotated section 50-6-239. Upon review of Ms. King's
Request for Expedited Hearing, the evidence presented at the hearing, the arguments of counsel,
and in consideration of the applicable law, the Court finds Ms. King is entitled to the some ofthe
benefits requested.
Issues
Whether Ms. King is entitled to temporary disability benefits from September 22, 2014,
through March 9, 20li; and
Whether Ms. King is entitled to reimbursement of out-of-pocket medical expenses.
1
This Court notes that the parties did not certify the disputed issue of Ms. King's entitlement to past or future
temporary total disability (TTD) benefits and/or past or future temporary partial disability (TPD) benefits on the
Dispute Certification Notice (DCN) filed March 10, 2015. However, Ms. King clearly indicated on her Petition for
Benefit Determination (PBD) filed October 29, 2014 that the issue of entitlement to temporary disability benefits
was in dispute. Ms. King further indicated the disputed issue of entitlement to temporary disability benefits on the
face of her Request for Expedited Hearing filed March II, 2015. The parties further identified communication
difficulties over the course of the claim. The Court recognizes further that the Mediating Specialist, who presented
the original DCN to the parties for review, then took a leave of absence and a different Mediating Specialist issued
and filed the final DCN. More importantly, the parties agreed during the expedited hearing that the issue of Ms.
King's entitled to temporary disability benefits was an issue for the Court to determine. This Court acknowledges
the decision of the Workers' Compensation Appeals Board in LaToya Dorsey v. Amazon. com, Inc., No. 2015-01-
0017 ((Tenn. Work. Comp. App. Bd., May 14, 2015). However, in light of judicial economy and the necessary
efficient handling of workers' compensation claims, it would be unjust for this Court to refer the parties back to
Mediation Services for completion of a subsequent PBD and issuance of a new DCN.
1
Stipulations of the Parties
The parties, through counsel, announced to the Court the following stipulations:
• The date of injury is September 15, 2014.
• Ms. King provided proper notice of the September 15, 2014 injury to Al's
Foodland.
• Ms. King filed the Petition for Benefit Determination within the applicable statute
of limitations.
• Ms. King's average weekly wage is $361.60, resulting in a workers'
compensation rate of$241.08.
• Ms. King received temporary total disability benefits from October 2, 2014,
through October 22, 2014, and Al's Foodland recommenced temporary total
disability benefits on March 10, 2015.
Evidence Submitted
The Court designated the following as the Technical Record:
• Petition for Benefit Determination (PBD), filed October 29, 2014
• Dispute Certification Notice, filed March 10, 2015
• Request for Expedited Hearing, filed March 11, 2015
• Order of Transfer, filed April1, 2015
• Al's Foodland Pre-Hearing Statement, filed April21, 2015.
The Court did not consider attachments to the above filings unless admitted into evidence
during the Expedited Hearing. The Court considered factual statements in the above filings and
any attachments to them as allegations unless established by the evidence.
The Court admitted into evidence the following:
• EXHIBIT 1: Medical Records from Tennessee Orthopedic Alliance (9 pages)
• EXHIBIT 2: Medical Records from Livingston Chiropractic (50 pages) 2
• EXHIBIT 3: Medical Records from Zion Wellness and Medical Clinic (2 pages)
• EXHIBIT 4: Medical Expenses from Premier Radiology and Zion Wellness (2
pages)
• EXHIBIT 5: Al's Foodland Incident Report, September 15, 2014 (1 page)
• EXHIBIT 6: Panels ofPhysicians (3 panels)
• EXHIBIT 7: Wage Statement, Form C-41, and Calculations (2 pages)
• EXHIBIT 8: For Identification Only: Medical Records and Medical Expense from
Premier Radiology (3 pages) 3
2
The Court incorrectly identified Exhibit 2 as containing sixty (60) pages, but the actual page count is fifty (50)
pages.
The Court marked the Premier Radiology CT report and invoice for identification purposes only due to an
objection raised by counsel for Al's Foodland to relevance and lack of timeliness. Upon marking Exhibit 8 for
2
• EXHIBIT 9: Ms. King's Responses to Interrogatories and Requests to Produce
Documents
• EXHIBIT 10: Itemization of Temporary Disability Benefits paid (1 page).
History of Claim
Ms. King worked as the frozen food manager for Al's Foodland. See PBD. On
September 15, 2014, she hurt her back while twisting to put away freight. Ms. King timely
reported the incident on September 19, 2014. See Exhibit 5. Al's Foodland provided Ms. King
with a panel of physicians from which she selected Livingston Chiropractic Clinic. See Exhibit
6, p. 1.
On September 22, 2014, Dr. Alexander Badru of Zion Wellness and Medical Clinic
issued a work excuse, indicating "Anna King has been seen in our office on 09/22/2014. She is
excused form work/ school from the dates of 09/22/2014 to ." The work excuse
further indicated "Pt is to be out of work until further notice." See Exhibit 3, 09/22/2014 Excuse
Note. The record does not contain an accompanying medical record detailing the reason for the
office visit. On the same date, Ms. King paid $150.00 to Zion Wellness. See Exhibit 4.
Dr. Steven Livingston examined Ms. King on October 2, 2014. Dr. Livingston noted Ms.
King's past surgical history was positive for a fractured T12 vertebra following a motor vehicle
accident. Ms. King underwent surgery for placement of Herrington rods. Dr. Livingston noted
that, after three years, the treating surgeon recommended surgery to remove the rods, but Ms.
King waited seven years before undergoing the hardware removal surgery. As a result, more
segmental fusion than desired occurred and the surgeon could not remove four hooks. After
reviewing x-rays of the spine, Dr. Livingston diagnosed thoracic subluxation, thoracic spinal
pain, degeneration of the thoracic disc, thoracic disc displacement without myelopathy, thoracic
sprain/strain, muscle spasms, myofascial pain syndrome, and ribs sprain and strain. Dr.
Livingston recommended treatment four to five times (4-5x) per week until the pain reduced and
range of motion and function increased. Based upon Dr. Livingston's report, Al's Foodland
initiated temporary total disability benefits beginning October 2, 2014. See Exhibit 2, 10/2/2014
visit.
Ms. King continued to treat with Dr. Livingston. See Exhibit 2. On October 10, 2014,
Dr. Livingston reduced treatments to three times (3x) per week. On October 16, 2014, he
reduced treatment to two times (2x) per week, "hoping one more week and she could be done."
On October 17,2014, Ms. King paid Premier Radiology $41.00 for films ofher bilateral
ribs. The medical receipt lists Dr. Livingston as the referring physician. The Premier Radiology
Report is contained in the records of Dr. Livingston and identifies no rib fractures.
identification purposes only, the Court advised Ms. King that she could attempt to introduce the records into
evidence during her testimony and, at that time, if an objection was made, the Court would determine whether the
records should be admitted into evidence. Ms. King made no further effort to introduce the records contained in
Exhibit 8 during her testimony. This Court therefore sustains the objection and excludes Exhibit 8 based on lack of
relevance.
3
On October 22, 2014, Dr. Livingston indicated, "I feel she should be able to return to
work in one week. Approximately 10-29-2014." On that date, Ms. King reported ninety percent
(90%) improvement of her symptoms. On October 29, 2014, Ms. King cancelled her
appointment with Dr. Livingston and rescheduled for November 3, 2014.
On October 31,2014, Dr. Badru issued another work excuse, indicating "Anna King has
been seen in our office on 10/3112014. She is excused from work/ school from the dates of
10/31/2014 to ." Dr. Badru further indicated "Pt is to be out of work until
further notice." See Exhibit 3, 10/31/2014 Excuse Note. The record does not contain an
accompanying medical record detailing the reason for the office visit.
On November 3, 2014, Ms. King cancelled her appointment and advised Dr. Livingston's
office that her primary care physician, Dr. Alexander Badru, instructed her not to return for any
chiropractic treatment and referred her to physical therapy instead. Following her cancellation
on November 3, 2014, Dr. Livingston wrote Ms. King, stating:
Based on our conversation today we will dismiss you from our
treatment. Today we discussed that you [sic] medical doctor,
Alexander Badru M.D. has advised that you no [sic] return to our
office for treatment, and that if you did return, to no let us adjust
you. Dr. Badru advises that you begin physical therapy instead.
Our records will show that on our last visit of 10-22-2014 that you
were approximately 90% back to full recovery. Our expected
return back to work was going to be one week from that date,
which would have been 10-29-14. At this point as you wish, we
will release you from our care.
See Exhibit 2, 11/3/2014 Letter.
On November 11, 2014, Dr. Livingston noted that Ms. King contacted his office
"yesterday" and made an appointment. Dr. Livingston further noted that he called Ms. King "to
discover what was going on." In his office note of November 11, 2014, Dr. Livingston outlined
the conversation:
Today she stated the following listed below.
1. After her last treatment here her pain increased for 3 days.
Then subsided again. I had felt she was 90% back to normal after
my last evaluation, she claims today that that last treatment flared
her up. I discussed today, that the propper thing to do would have
been to return here and discuss this flare and and [sic] likely we
could have treated her again and reduced her pain again. On that
final treatment we did do more range of motion testing to see how
close she was to being able to return to work. Quite possible that
this aggravated the area temporarily.
4
2. Anna King states that her MD. [sic] Dr. Alexander Badru
had told her to not return to our office for treatment, and that if she
did return that she should not let use adjust her spine. Dr. Badru
also wanted her to do physical therapy instead.
3. Anna King states that her Workers [sic] compensation
claims manager told her that she would not have chosen to come to
our office in the first place. That an orthopedist would have been a
far more better choice.
4. Based on all the reasons above is why she chose to not
return for treatment in our office. Now she says she basically feels
she has to return to our office to get released to go back to work.
My office had never officially taken her off work, her MD, Dr.
Badru had taken her off work before we ever seen [sic] her ....
At this point the patient had already been dismissed from treatment
on 11/3/20 14 after she called in and said that Dr. Badru MD told
her not to return to us. With all that seems to be transpiring or has
transpired we cannot accept back this patient .. .I told Anna that it
might be a good idea to have an evaluation with an orthopedic
doctor is [sic] she feels that she has not fully recovered.
See Exhibit 2, 11/11/2014 visit.
On November 12, 2014, Dr. Livingston issued a "To Whom It May Concern" letter
stating in part,
Anna King's last evaluation with me was on 10-22-2014. On that
visit she was in my opinion at 90% back to full recovery. On this
last visit on 10-22-2014, I had discussed with her that she should
be able to return to full duty in one week, which would have been
on 10-29-2014. But I had asked her to get the approval from her
medical doctor and to see if he agreed with this plan ...
Anna King's first visit was on 10-2-2014, and [she] had a total of9
treatments. She improved exactly as expected and reached 90%
recovery in my opinion. On her first visit, I felt she could have
performed light duty work, and if she could have worked as a
check out, I think she would have been ok. But, if any lifting over
10 pounds or any thoracic flexion past 25 degrees was going to be
required that she wouldn't be able to perform those duties. I told
her that she should discuss this with her MD and her employer and
see what the options were. The feedback that we got from Anna,
was that her MD was not comfortable with her working at all. This
was acceptable with me as well...
5
On 10-22-2014, I was expecting that Anna King would be able to
return to work on 10-29-2014. I would also recommend that she
avoid any heavy lifting, over 15 pound (sic] off the floor, be
avoided for an additional 2 weeks, which would took [sic] her to
about 11-12-14. I would have expected that on 10-29-14 that
being a check out or any other activity that didn't require heavy
lifting to [sic] be ok. She has severe degenerative arthritic changes
in her spine. Most of this is due to hardware that was left in her
spine from a past spinal surgical procedure many years ago, I
would not expect her spine to ever handle much heavy lifting.
This is the area that was damaged concerning this case, if she goes
back to the same activity, I would expect a high likelihood that she
will get hurt again. But any other job that doesn't require heavy
lifting off the floor of over 15 pounds, I feel she should be fine.
See Exhibit 2, 11/12/2014letter.
On December 10, 2014, defense counsel for Al's Foodland wrote Dr. Livingston to
request an opinion on causation. Dr. Livingston marked "No" when asked, "[I]s it your opinion
within a reasonable degree of medical certainty that the current symptoms and need for
treatment, if any, did not primarily arise out of or occur in the course of King's employment on
September 15, 2014." Dr. Livingston further commented, "[d]uring this time there was some
profession [sic] misconduct that has interfered with the doctor/patient relationship that I can no
longer treat her or give any opinions to her current status." See Exhibit 2, 12/10/2014 Letter.
Al's Foodland provided Ms. King a panel of orthopedic physicians from which she
selected Dr. Gray C. Stahlman of Tennessee Orthopedic Alliance on January 27, 2015. See
Exhibit 6, pp. 2-3. Ms. King's first saw Dr. Stahlman on February 12, 2015. See Exhibit 1,
02/12/2015 visit. Dr. Stahlman obtained x-rays of the pelvis and lumbar spine and ordered an
MRI of the thoracic spine. Dr. Stahlman diagnosed pain in the thoracic spine and carpal tunnel
syndrome. !d. Dr. Stahlman completed a WorkLink Physician's Report, noting the diagnosis of
thoracic pain was work-related. Dr. Stahlman further noted that Ms. King could not work. See
Exhibit 1, 02/12/2015 WorkLink report.
Ms. King returned to Dr. Stahlman on March 10, 2015, for review of the MRI. See
Exhibit 1, 03/10/2015 visit. Dr. Stahlman referred Ms. King for physical therapy and released
her to return to limited duty with no lifting over twenty pounds (20 lbs.) maximum and no
occasional stooping, bending, or twisting. See Exhibit 1, 03/10/2015 WorkLink report. On this
date, Al's Foodland recommended temporary total disability payments to Ms. King.
On April 10, 2015, Dr. Stahlman re-evaluated Ms. King for a thoracic strain. Dr.
Stahlman noted, "She still is dealing with significant trigger point and tightness in her left
periscapular region and trapezius region versus the right. She has found a new job working
security at Bridgestone Distribution." Dr. Stahlman referred Ms. King to a physiatrist, Dr.
Christopher Ashley. See Exhibit 1, 04/10/2015 visit.
6
Ms. King filed a Petition for Benefit Determination on October 29, 2014. The parties did
not resolve the disputed issues through mediation and the Mediating Specialist filed the Dispute
Certification Notice on March 10, 2015. On March 11, 2015, Ms. King filed a Request for
Expedited Hearing. This Court conducted an in-person evidentiary hearing on April 27, 2015.
Ms. King testified on her own behalf. John Carmen testified for Al's Foodland.
Ms. King's Contentions
Ms. King alleges that on Monday, September 15, 2014, she was putting up freight in the
freezer. As she stacked freight in the corner, she twisted around and "sprung" her back. She
finished putting away freight, and then continued to the cash register to work. After finishing her
shift, Ms. King went home. She testified that her pain was horrible that night, but she returned to
work on Tuesday, Wednesday, and Friday. Over those three days, Ms. King unpacked freight
from two more trucks. She testified further that, by Friday night (September 19, 2014), she
could not turn. She reported the incident to John Carmen and went to the emergency room. She
testified that, over the weekend, she could not turn over in bed, experienced difficulty walking,
and suffered "horrific pain." The emergency room instructed her to see her primary care
physician on Monday if unable to work. She saw her primary care physician on Monday
(September 22, 2014).
After she saw her primary care physician, Ms. King testified she rested the remainder of
the week, and then received a panel of physicians from John Carmen, the Foodland office
manager. She began chiropractic treatment with Dr. Livingston. His therapy seemed to help, but
it only provided temporary relief. She testified that Dr. Livingston became angry with her
because she told him that his treatment hurt her. She also argued that he recanted on his return to
work statement.
Ms. King additionally testified that, whenever she went back to doing light duty tasks,
swelling and pain returned to her back. She testified that she asked "Glenn" for a light duty job
but he stated she had to work frozen foods. She admitted that she did not pursue anything else.
She testified that she was unable to pursue anything else, because she continued to have
difficulties walking and numbness in her hand. She later accepted a light duty job that did not
require lifting. She testified that, although she worked, she worked in pain.
Ms. King contends that Al's Foodland owes her disability benefits for the time she was
off and unable to work. She claims she suffered during this time, but went without medical
attention and without income as well. She argued that she accepted a light duty job and hoped to
continue working, but she works with pain.
Al's Foodland's Contentions
Al's Foodland contends that it paid temporary disability benefits based upon the
restrictions assigned by the authorized treating physicians. There is no competent medical
evidence to support a claim for temporary disability benefits for the period in question.
Additionally, Ms. King was non-compliant with treatment and failed to communicate withAl's
7
Foodland as to her medical status and ability to return to work.
Mr. Carmen testified that Ms. King sent him a Zion Wellness work slip, and asked him to
fax it to "Fran," the workers' compensation insurance adjuster. During this telephone
conversation in October, 2014, Mr. Carmen advised Ms. King that he was having trouble making
the work schedule. He testified that he asked her to let him know on Fridays, when the schedule
is typically prepared, whether she intended to work the following week. On October 29, she
called to request an email address and fax number and she notified him that she was filing a
"grievance" to get things paid. Mr. Carmen testified that October 29, 2014, was the last time he
talked to her for several months.
Al's Foodland obtained through cross-examination testimony that Ms. King began
working as a security guard for Covenant Security on March 21, 2015. She earns $9.75 per hour
and hired to work 24 hours per week, or 3 - 8 hour shifts. She currently works 30 hours per
week from 11 p.m. to 7 a.m. on Monday, Tuesday, and Wednesday nights and, because her
employer is short-staffed, her employer asked her to pick up a Friday.
Al's Foodland provided several arguments opposing Ms. King's request for additional
temporary disability benefits. For the period from October 22, 2014, the date of the last
temporary total disability payment, until February 12, 2015, Al's Foodland argues that there is
no proof of an authorized treating physician restricting Ms. King from working. Any restrictions
during the period in question were assigned by her primary care physician, who treated her for
multiple health problems. Furthermore, She was non-compliant in her treatment with Dr
Livingston over this period. Her cancellation of several appointments interrupted Dr.
Livingston's anticipated full release to work. She did not communicate withAl's Foodland and
then she secured alternative employment.
Al's Foodland recommenced temporary total disability benefits on March 10, 2015, and
continues to pay temporary total disability benefits. For the period from February 12, 2015,
through March 9, 2015, Al's Foodland acknowledged an obligation to pay temporary total
disability benefits based upon Dr. Stahlman's opinion.
For the period beginning March 10, 2015, and ongoing, Al's Foodland argues that any
benefits paid should be paid based upon a temporary partial disability calculation. Al's Foodland
avers that Ms. King's average weekly wage is $292.50 for her current job at Covenant security,
which is $70 less per week than what she earned at Al's Foodland. Thus, it argues that it is
entitled to a credit for the overpayment of benefits beginning March 10, 2015.
Al's Foodland contends Ms. King is not entitled to reimbursement of medical expenses
for unauthorized care. As to $191 sought, there is no testimony establishing a causal relationship
between the medical expenses and the work injury. Al's Foodland argues that Dr. Stahlman is
the authorized treating physician, the workers' compensation carrier authorized his treatment,
and his recent referral "is being taken care of." For these reasons, Al's Foodland asks this Court
to deny Ms. King's request for medical expenses and additional temporary disability benefits.
8
Findings of Fact and Conclusions of Law
Standard Applied
The Workers' Compensation Law shall not be remedially or liberally construed in favor
of either party but shall be construed fairly, impartially, and in accordance with basic principles
of statutory construction favoring neither the employee nor employer. Tenn. Code Ann. 50-6-
116 (2014). Tennessee Code Annotated section 50-6-239(c)(6) provides that "[u]nless the
statute provides for a different standard of proof, at a hearing, the employee shall bear the burden
of proving each and every element of the claim by a preponderance of the evidence." Tenn.
Code Ann. section 50-6-239(c) (2014). A different standard of proof exists for the issuance of
interlocutory orders at Expedited Hearings than the standard of proof required at compensation
hearings. See McCord v. Advantage Human Resourcing, No. 2014-06-0063 (Tenn. Work.
Comp. App. Bd., March 27, 2015). 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. Tenn. Code Ann. 50-6-239(d)(1) (2014); cf McCall v.
Nat'! Health Care Corp., 100 S.W.3d 209, 214 (Tenn. 2003).
Factual Findings
The Court finds that Ms. King sustained an injury to her thoracic spine on September 15,
2014, while working for Al's Foodland. Ms. King reported the work incident to Al's Foodland
on September 19, 2014. Al's Foodland provided Ms. King a panel of physicians and she
selected Dr. Livingston as her authorized treating physician.
Ms. King received authorized medical treatment with Dr. Livingston from October 2,
through October 22, 2014. Dr. Livingston dismissed Ms. King from his care on November 3,
2014, due to several cancelled appointments and professional interference negatively affecting
the doctor/patient relationship. Dr. Livingston anticipated releasing Ms. King to return to work
on October 29, 2014, with restrictions of no lifting over fifteen (15) pounds from the floor for
two (2) weeks. Dr. Livingston further indicated that he did not expect Ms. King's spine to
perform much heavy lifting, and that she risked re-injury if she returned to the "same activity."
Dr. Livingston additionally recommended an evaluation with an orthopedic physician if Ms.
King felt that she had not fully recovered.
Al's Foodland provided Ms. King a panel of orthopedic physicians and she selected Dr.
Stahlman. Ms. King received authorized medical treatment with Dr. Stahlman, beginning
February 12, 2015. Dr. Stahlman placed Ms. King off work from February 12, 2015, until
completion of an MRI. On March 10, 2015, Dr. Stahlman released Ms. King to return to limited
duty with no lifting over twenty pounds (20 lbs.) maximum and no occasional stooping, bending,
or twisting.
Ms. King last worked for Al's Foodland on September 19, 2014. Al's Foodland did not
offer light duty work to Ms. King. Ms. King accepted a light duty position as a security guard
for Covenant Security on March 21, 2015, working thirty (30) hours per week at $9.75 per hour.
9
Ms. King has an average weekly wage of $361.60, resulting in a workers' compensation
rate of $241.08 per week. Al' s Foodland paid Ms. King temporary total disability benefits from
October 2, through October 22, 2014, for a total of $723.24. Al's Foodland recommenced
temporary total disability benefits on March 10, 2015. As of the date of the hearing on April27,
2015, Al's Foodland paid temporary total disability benefits from March 10, 2015 through May
4, 2015, for a total of$1,928.64.
Application of Law to Facts
Whether Ms. King is entitled to temporary disability benefits from September 22, 2014,
through March 9, 2015.
Ms. King seeks temporary disability benefits from September 22, 2014, through March 9,
2015. Tennessee workers' compensation law establishes four distinct categories of compensable
disabilities entitling an injured employee compensation. The four categories include: (1)
temporary total disability, (2) temporary partial disability, (3) permanent partial disability, and
(4) permanent total disability. Tennessee Code Annotated section 50-6-207 (2014) provides in
part:
(1) Temporary Total Disability.
(A) For injury producing temporary total disability, [the
compensation shall be] sixty-six and two thirds percent (66 2/3%)
of the average weekly wages ...
(2) Temporary Partial Disability.
(B) In all cases of temporary partial disability for claims
with a date of injury on or after July 1, 2014, the compensation
shall be sixty-six and two thirds percent (66 2/3%) of the
difference between the average weekly wage of the worker at the
time of the injury and the wage the worker is able to earn in the
worker's partially disabled condition.
Tenn. Code Ann. § 50-6-207 (1) and (2) (2014).
In other words, the injured employee shall receive compensation "for the period of time
during which [the employee] suffers temporary total disability on account of the injury," and
thus the purpose served by such benefits is to allow for "the healing period during which the
employee is totally prevented from working." Gluck Bros., Inc. v. Coffey, 431 S.W.2d 756, 759
(Tenn. 1968). To be entitled to temporary total disability benefits, an employee must prove that
(1) the employee was totally disabled to work by a compensable injury; (2) that there was a
causal connection between the injury and the inability to work; and (3) the duration of that period
of disability. See Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770 (Tenn. 2000). Temporary
partial disability arises when "the temporary disability is not total." 20 Reynolds§ 14:4, at 213.
In the present case, the evidence introduced at the hearing established that the authorized
treating physician, Dr. Livingston, restricted Ms. King from working from October 2, through
October 22, 2014, during which time Al's Foodland paid temporary total disability benefits.
However, Ms. King failed to demonstrate that any physician, authorized or otherwise, restricted
10
her from working because of her work injury prior to October 2, 2014. Accordingly, this Court
finds Ms. King is not entitled to temporary disability benefits from September 22, 2014, through
October 1, 2014.
After Ms. King's last appointment with Dr. Livingston on October 22, 2014, for the
reasons outlined in the History of the Claim and this Court's Findings of Fact, Dr. Livingston
dismissed Ms. King from his care. In a letter dated November 12, 2014, Dr. Livingston
addressed Ms. King's return to work status and stated in part:
On 10-22-2014, I was expecting that Anna King would be able to
return to work on 10-29-2014. I would also recommend that she
avoid any heavy lifting, over 15 pound [sic] off the floor, be
avoided for an additional 2 weeks, which would took {sic] her to
about 11-12-14. I would have expected that on 10-29-14 that
being a check out or any other activity that didn't require heavy
lifting to {sic] be ok. She has severe degenerative arthritic changes
in her spine. Most of this is due to hardware that was left in her
spine from a past spinal surgical procedure many years ago, I
would not expect her spine to ever handle much heavy lifting.
This is the area that was damaged concerning this case, if she
goes back to the same activity, I would expect a high likelihood
that she will get hurt again. But any other job that doesn't
require heavy lifting off the floor of over 15 pounds, I feel she
should be fine.
See Exhibit 2, 11/12/2014letter (emphasis added).
For the period beginning October 23, 2014, Ms. King testified that she asked "Glenn" at
Al's Foodland if she could return to work light duty, but she was told she had to work frozen
foods, a job she knew to be heavy duty. While Al's Foodland introduced testimony through John
Carmen that Ms. King did not call-in on Fridays as requested to advise of her anticipated return
to work date, Al's Foodland offered no evidence of any attempt to return Ms. King to work
within the restrictions recommended by Dr. Livingston in his letter ofNovember 12, 2014. This
Court therefore finds that Ms. King is entitled to temporary partial disability benefits, beginning
October 23, 2014, through February 11, 2015, the date Dr. Stahlman placed her off work until
completion of an MRI. Because Ms. King testified that she could not work during this period,
she is entitled to temporary partial disability benefits at $241.08 per week, which equates to
$3,822.84.
For the period beginning February 12, 2015, the evidence in this case demonstrates that
Dr. Stahlman placed Ms. King off work from February 12, 2015, through March 9, 2015. As
acknowledged by Al's Foodland during the expedited hearing, this Court finds Ms. King is
entitled to temporary total disability benefits during that period at $241.08 per week, which
equates to $895.44.
For the period beginning March 10, 2015, Dr. Stahlman's records indicate that he
11
released Ms. King to return to limited duty with no lifting over twenty pounds (20 lbs.)
maximum and no occasional stooping, bending, or twisting. Ms. King testified that she started
working as a security office for Covenant Security on March 21, 2014. This Court finds that Ms.
King is entitled to temporary partial disability benefits at $241.08 per week for the period of
March 10,2015, through March 20,2015, for a total of$378.84.
From March 21, 2015, through the date ofthis order, Ms. King earned an average weekly
wage of $292.50 as a security officer. Applying Tennessee Code Annotated section 50-6-
207(2)(B), the difference between Ms. King's average weekly wage at the time of the injury
($361.60) and the average weekly wage earned by Ms. King in her partially disabled condition
($292.50) is $69.10. Sixty-six and two thirds percent (66 2/3%) of the difference equates to
$46.07 per week. Therefore, this Court finds that Ms. King is entitled to temporary partial
disability benefits at $46.07 per week beginning March 21, 2015, through the date of this order,
which equates to eleven weeks, or $506.77.
Ms. King is further entitled to ongoing temporary partial disability benefits until she is
released to return to full-duty work by an authorized treating physician or placed at maximum
medical improvement. Ms. King shall provide Al's Foodland or its workers' compensation
carrier with copies of her paychecks in order to calculate the appropriate amount of ongoing
temporary partial disability benefits to be paid.
Based upon the foregoing, Ms. King is entitled to a payment of $5,603.89 in temporary
total and temporary partial disability benefits for the periods outlined above. This Court notes
that Al's Foodland paid temporary disability benefits totaling $1,928.64 for the period of March
10, 2015 through May 4, 2015. The Court finds that Al's Foodland is entitled to a credit for the
benefits paid during this time, leaving a total amount due in the amount of $3,675.25.
Whether Ms. King is entitled to reimbursement of out-of-pocket medical expenses.
Ms. King seeks payment of out-of-pocket expenses of $191.00. Al's Foodland argued
that the evidence presented in this case failed to establish a causal connection between the
medical expenses and the September 15, 2014 work injury. This Court agrees. Therefore, Ms.
King's claim for reimbursement of medical expenses of$191.00 is denied at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. King is not entitled to temporary disability benefits from September 22, 2014,
through October 1, 2014.
2. Ms. King is entitled to temporary partial disability benefits, beginning October 23, 2014
through February 11,2015, at the rate of$241.08 per week, which equates to $3,822.84.
3. Ms. King is entitled to temporary total disability benefits from February 12, 2015,
through March 9, 2015, at the rate of$241.08 per week, which equates to $895.44.
12
4. Ms. King is entitled to temporary partial disability benefits at the rate of $241.08 per
week for the period of March 10, 2015, through March 20, 2015, for a total of$378.84.
5. Ms. King is entitled to temporary partial disability benefits at $46.07 per week beginning
March 21, 2015, through the date of this order, which equates to eleven weeks, or
$506.77.
6. Al's Foodland is entitled to a credit for the benefits paid from March 10, 2015, through
May 4, 2015, in the amount of$1,928.64, leaving a total amount due of$3,675.25.
7. Al's Foodland or its workers' compensation insurance carrier shall continue to pay to Ms.
King temporary partial disability benefits in regular intervals until Ms. King is no longer
eligible for those benefits by reaching maximum medical improvement or by release
without restrictions by the authorized treating physician. Ms. King shall timely provide
Al's Foodland or its workers' compensation carrier with a copy of her paychecks to allow
proper calculation of her ongoing temporary partial disability benefits.
8. This matter is set for Initial Hearing on Tuesday, July 14, 2015, at 9:00 a.m. central,
10:00 a.m. eastern.
9. Unless interlocutory appeal of the 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). 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.
10. 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 5th day of Jun~~l~rv--J
HON. PAMELA B. JOHNSON
Workers' Compensation Judge
13
Initja l Hearing:
An Initial Hearing has been set on July 14,2015, at 9:00a.m. central, 10:00 a.m. eastern
time with Judge Pamela B. Johnson for the Court of Workers' Compensation Claims. You must
call (855) 543-5041 or toll free at 865-594-0091 to participate in the Initial Hearing.
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.
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 Expedited Hearing Order was entered by the Workers' Compensation Judge.
3. Serve a copy of the Expedited Hearing Notice of 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 (10)
calendar days of the filing of the Expedited Hearing Notice of Appeal. The statement of
the evidence must be approved by the Judge before the record is submitted 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
appellee elects to file a response in opposition to the interlocutory appeal, appellee shall
do so within three (3) business days of the filing ofthe appellant's position statement.
14
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 5th day of June, 2015.
Name Certified Via Via Service sent to:
Mail Fax Email
Anna M. King, pro se X X 2217 Double Log Cabin Road
Lebanon, Tennessee 37087
kinf!roofinf!cora2f!mail.com
Frederick W. Hodge, Esq. X fhodge@howell-fisher .com
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
15