Booher, Jerry v. Microporous, LLC

FILED
December 18, 2015
IN COURT OF
WORKERS’ COMPENSATION
CLAIMS
Time: 11:08 AM
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KINGSPORT
Jerry Booher ) Docket No.: 2015-02-0298
Employee, )
v. ) State File Number: 31904/2015
Microporous, LLC )
Employer, ) Judge Brian K. Addington
And )
Liberty Mutual Insurance Co. )
Insurance Carrier. )
)
EXPEDITED HEARING ORDER DENYING REQUESTED
TEMPORARY DISABILITY BENEFITS
This cause came on to be heard on December 7, 2015, for an Expedited Hearing.
The present focus of this case concerns the employee’s positive urine drug screen (UDS),
which was performed on the date of injury after he slipped in oil and injured his low
back. The central legal issue is whether the employee is entitled to additional temporary
disability benefits from the date of injury to the date he reached maximum medical
improvement, considering his termination, which resulted from the UDS failure.’ For the
reasons set forth below, the Court denies the requested relief at this time.
History of Claim
Jerry Booher is a twenty-nine-year-old resident of Sullivan County, Tennessee.
(T.R. 1 at 1.) He worked for Microporous, LLC as a calendar and Flexsil operator. (Ex. 3
at 5.) The parties stipulated that Mr. Booher’s average weekly wage is $686.32. Mr.
Booher testified that his shift started at 4:00 p.m., and his job consisted of making rubber
separators that fit between the cells of golf cart batteries.
On April 23, 2015, as Mr. Booher stepped toward an extruder machine to begin
his work, he slipped in oil that had spilled onto the floor after the maintenance
department replaced a screw on the extruder. (Ex. 1.) Mr. Booher fell onto a sharp corner
' Additional information regarding the certified issues, technical record and exhibits admitted at the Expedited
Hearing is attached to this Order as an Appendix.
of the machine, hitting his lower back. Jd. He also struck his left knee on the corner of the
concrete floor. Jd. The plant manager, Travis Cunningham, was five feet away from Mr.
Booher when the accident occurred. Jd.
Mr. Booher testified that he felt a sharp pain in his left leg, as well as numbness
and tingling in his lower back after the fall. He attempted to work for another two hours,
but his discomfort continued. He completed an incident report and requested medical
treatment. (Ex. 3 at 5.) Microporous presented Mr. Booher with its standard physician
panel, and, given the hour, Mr. Booher elected to treat at the Franklin Woods Hospital
emergency room. (Ex. 3 at 6.) Another supervisor named “Curtis” drove Mr. Booher to
the emergency room, where he met the Environmental Health and Safety Manager, Steve
Powell.
At Franklin Woods, Mr. Booher underwent a CT scan of lumbar spine. The
treating physician diagnosed him with back and left knee pain. A UDS was administered.
Mr. Booher previously signed a Consent for Drug Testing form for Microporous when he
became a full-time employee on January 22, 2015. (Ex. 3 at 1.) The Franklin Woods
providers recorded in two separate notes that Mr. Booher asked a CT technician named
“Brad” to provide a urine sample and substitute it for his sample. Ivy Adkisson, the nurse
taking care of Mr. Booher, recorded:
Brad from CT returned patient to ED 14. Brad states that patient offered
him one hundred dollars cash to “pee” for him for his medworks UDS.
Brad, of course, declined and reported it to myself. I confronted patient and
gave him the option to continue with drug screen or decline. Patient wishes
to continue with UDS.
(Ex. 3 at 3.)
The physician attending to Mr. Booher prepared a handwritten notation stating,
“Patient was reported to have asked CT tech to pee in a cup for him.” (Ex. 3 at 2.) The
remainder of the note is illegible. Mr. Booher was prescribed pain medication and was
discharged home. The UDS later returned positive for Oxaazepam, Alprazolam, and
marijuana. (Ex. 3 at 8.)
The provider discharged Mr. Booher with medication and allowed him to return to
work the next Monday, April 27, 2015, with no restrictions. (Ex. 3 at 17.)
Mr. Booher requested additional medical treatment and chose WellWorks
Occupational Health Services from the provided panel. (Ex. 3 at 6.) Dr. E.C. Goulding
examined Mr. Booher on April 27, 2015. (Ex. 3 at 18.) He diagnosed Mr. Booher with a
lumbar strain and left sciatica and restricted Mr. Booher’s work to “no lifting, pushing, or
pulling over 20 pounds,” and “no repetitive or prolonged forward bending, twisting . . .
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kneeling, squatting, or climbing.” Jd.
Mr. Booher returned to WellWorks the next day. (Ex. 2 at 1.) Dr. Goulding
adjusted Mr. Booher’s restrictions to a five-pound lifting, pushing, or pulling restriction,
and no repetitive or prolonged forward bending or twisting. Jd. Mr. Booher was limited to
working four hours per day and was required to perform a “sitting job only. Chair with
back support.” Jd.
Dr. Goulding referred Mr. Booher to a back surgeon for evaluation, and
Microporous responded by providing a panel from which Mr. Booher selected Dr.
Richard Duncan. (Ex. 3 at 7.) Dr. Duncan examined Mr. Booher on April 30, 2015. (Ex.
2 at 2.) Mr. Booher reported pain in his low back with numbness down his left leg. Jd. Dr.
Duncan noted Mr. Booher’s previous lumbar surgery in 2007 to correct “lumbar disc
problems, but [he] was back doing his regular duty in an unrestricted fashion when he
had this recent injury.” (Ex. 2 at 4.) Lumbar x-rays showed “slight decreased height at the
L4-L5 and LS-S1 disc, which can be normal variant at his stated age of 28.” Dr. Duncan
diagnosed Mr. Booher with displacement of the lumbar intervertebral disc without
myelopathy. Jd. He ordered physical therapy and restricted Mr. Booher to no more than
four hours of work per day, no lifting over five pounds, and no bending at the waist. Jd.
On May 1, 2015, the results of Mr. Booher’s April 23, 2015 UDS became
available. (Ex. 3 at 8.) Mr. Booher testified that he received a phone call confirming the
results that same day. He contested the positive UDS and procured another UDS at his
expense that afternoon. On May 8, 2015, the results of the second UDS returned negative.
(Ex. 2 at 10.) Microporous received notice of the earlier positive UDS and suspended Mr.
Booher on May 4, 2015.
Microporous’ Director of Human Resources, Robert Miller, testified at the
hearing. He asserted that the company abided by all work restrictions given to Mr.
Booher and that it would have continued to accommodate his restrictions, if not for Mr.
Booher’s suspension and ultimate termination.
Before Mr. Booher received the results of the second UDS, Microporous
terminated his employment via correspondence dated May 6, 2015, after it received
written confirmation of the positive UDS. (Ex. 3 at 15.) In support of the termination,
Microporous cited its policy subjecting employees to termination for “possession of
intoxicants or controlled drugs on company property or reporting to work under the
influence of alcohol or with a measurable quantity of a narcotic in the employee’s
system.” Id.
The Court also notes Microporous’ Drug Policy, which states, “It is a violation of
company policy for any employee to report to work under the influence of or while
possessing in his/her body, blood, or urine, illegal drugs in any detectable amount...
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Violations of this policy are subject to disciplinary action up to and including
termination.” (Ex. 3 at 10, 11.) A Separation Notice accompanied the letter and indicated
discharge for a failed drug test. (Ex. 3 at 16.)
Upon his return visit to Dr. Duncan on May 12, 2015, Mr. Booher reported no
improvement in his condition. (Ex. 2 at 6.) Dr. Duncan concluded that Mr. Booher was
not a surgical candidate. (Ex. 2 at 8.) He ordered an MRI of the lumbar spine in light of
Mr. Booher’s left leg pain. Jd.
Dr. Duncan reviewed the MRI results and noted “degenerative changes at L4-L5
and L5-S1 with decreased disc space and disc bulges were seen at L4-L5.” (Ex. 3 at 4.)
He confirmed that Mr. Booher was not a surgical candidate, but ordered a nerve root
injection at LS. Id.
Mr. Booher testified that he was anxious about the steroid injection procedure and
was confused about the appointments made in August 2015. He understood that the
appointments were optional, if he wished to proceed with the injections. Since he was not
convinced he wanted the injections, he did not attend.
Mr. Booher returned to Dr. Duncan on October 16, 2015. (Ex. 4 at 1.) Dr. Duncan
placed him at maximum medial improvement (MMI) and issued a three percent
impairment rating to the body as a whole, noting “I have nothing further I can offer him
for an orthopedic spinal surgery perspective.” (Ex. 4 at 2.)
Mr. Booher testified that he received “one month” of temporary disability benefits
until Dr. Duncan put him on restrictions during his second visit. He also denied smoking
marijuana and maintained that he had never heard of the medications for which he
allegedly tested positive in the original UDS. He asserted that he took no prescription
medication on the date of injury. In addition, Mr. Booher testified that he began working
for a different employer, Johnson City Toyota, as a car salesman approximately three
weeks before the expedited hearing. He will receive training pay for his first two months
at the rate of $750 per week before moving to a full commission-based pay. He has not
yet received his first paycheck.
Mr. Booher also asserted that he did not receive a mileage reimbursement check
owed by Microporous. Microporous acknowledged that the mileage payment is owed and
will ensure payment.
Mr. Booher filed a Petition for Benefit Determination seeking additional medical
and temporary disability benefits on August 26, 2015. (T.R. 1 at 1.) The parties did not
resolve the disputed issues through mediation, and the Mediating Specialist filed a
Dispute Certification Notice on September 25, 2015. (T.R. 2.) Mr. Booher filed a Request
for Expedited Hearing pursuant to Tennessee Code Annotated section 50-6-239 (2014).
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(T.R. 3.) At the Expedited hearing, Mr. Booher contended that he is entitled to temporary
disability benefits from the date of injury to the MMI date. Mr. Booher does not request
medical treatment. Microporous asserts that it owes no further temporary disability
benefits, and that it appropriately terminated Mr. Booher appropriately and for cause.
Findings of Facts and Conclusions of Law
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). The employee in a workers’
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass’n, 725 S.W.2d 935, 937 (Tenn. 1987); Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers’ Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element
of his or her claim by a preponderance of the evidence in order to obtain relief at an
expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers’ Comp. App. Bd. Mar. 27,
2015). At an expedited hearing, an employee has the burden to come forward with
sufficient evidence from which the trial court can determine that the employee is likely to
prevail at a hearing on the merits. Jd.
The Court finds that Microporous provided sufficient information to establish its
policy prohibiting an employee from reporting to work “possessing in his/her body,
blood, or urine, illegal drugs in any detectable amount.” Employees who do are subject to
discipline, including termination. Mr. Booher does not contest the policy.
The facts established that on the date of injury, Mr. Booher’s UDS showed
positive for an illegal drug, marijuana, among other substances. While Mr. Booher
contests the positive UDS result, the fact remains that, when presented with a positive
UDS, Microporous followed the plain language of its Drug Policy and first suspended
and later terminated Mr. Booher’s employment.
Moreover, the Court cannot ignore the CT technician’s report, recorded twice in
the submitted medical records, that Mr. Booher offered him money to substitute his urine
for Mr. Booher’s. The Court finds that the documented proof of the offer outweighs Mr.
Booher’s denial that he made such an offer. The fact that Mr. Booher asked the CT
technician to fraudulently submit his urine supports the veracity of the positive UDS
result. Moreover, even if the subsequent negative UDS result is correct, it has no impact
on whether Mr. Booher had the noted drugs in his system on the date of injury. The Court
finds that Microporous terminated Mr. Booher’s employment for cause, specifically, for
violation of its Drug Policy.
The question then becomes whether Mr. Booher is entitled to temporary partial
disability benefits. The facts established that Mr. Booher returned to. work for
Microporous after the injury, initially without restrictions, and later with restrictions.
According to Mr. Booher’s testimony, he received some unspecified amount of
temporary disability benefits for approximately one month. Nothing in the provided
information suggests that Mr. Booher was entitled to any additional temporary disability
benefits prior to his suspension on May 4, 2015.
Mr. Booher claims that he is entitled to temporary partial disability benefits up to
his uncontested MMI date. However, the Tennessee Supreme Court has held that “an
employer should be permitted to enforce workplace rules without being penalized in a
workers’ compensation case.” Carter v. First Source Furniture Group, 92 S.W.3d 367,
371 (Tenn. 1992); Jones v. Crencor Leasing and Sales, 2015 Tn Wrk. Comp. App. Bd.
LEXIS 48, at *8 (Tenn. Workers’ Comp. App. Bd. Dec. 11, 2015
As noted above, Microporous acted within the terms of its Drug Policy when it
suspended, and later terminated Mr. Booher’s employment. In so doing, it enforced its
workplace rules. In addition, the Court finds that Microporous had work available within
Mr. Booher’s restrictions both before and after his suspension and later termination. But-
for Mr. Booher’s termination for violation of company policy, he would have continued
working. Mr. Booher was not disabled from working as a result of the injury, but as the
result of his violation of company policy. His for-cause termination led to his inability to
work for Microporous. In any event, Mr. Booher’s entitlement to temporary partial
disability benefits ended upon his placement by Dr. Duncan at MMI.
The Court finds that Mr. Booher has not come forward with sufficient evidence
from which this Court could conclude that he is likely to prevail at a hearing on the
merits. His request for additional temporary disability benefits is denied at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Booher’s claim against Microporous and its workers’ compensation carrier for
the additional temporary disability benefits is denied.
2. Microporous shall pay to Mr. Booher the mileage reimbursement it agreed is
owed.
3. This matter is set for an Initial Status Hearing on January 21, 2016, at 2:00 p.m.
Eastern Time.
ENTERED this the 18th day of December, 2015.
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— (C AOI
Judge Brian K. Addington :
Court of Workers’ Compensation Claims
Initial (Status) Hearing:
A Status Hearing has been set with Judge Brian K. Addington, Court of
Workers’ Compensation Claims. You must call at 855-543-5044 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. All conferences are set using Eastern Time (ET).
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 business days of the
date the Workers’ Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure_to timely pay the filing fee or file the Affidavit of
Indigency in accordance with this section shall result_in dismissal of the
appeal.
5. 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 calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers’ Compensation
Claims and must be approved by the workers’ compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within five business days of the filing of the appellant’s
position statement. All position statements pertaining to an appeal of an
interlocutory order 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.
APPENDIX
Exhibits:
1. Affidavit of Jerry Booher, September 3, 2015
2. Collective Exhibit, including medical records from WellWorks and Dr. Duncan,
and the May 1, 2015 UDS
3. Collective Exhibit, including emergency room records, additional WellWorks
records and Dr. Duncan’s records, the April 23-24, 2015 UDS, and personnel
records
4, Dr. Duncan’s October 16, 2015 record
Technical record: 4
1. Petition for Benefit Determination, August 26, 2015
2. Dispute Certification Notice, September 25, 2015
3. Request for Expedited Hearing, October 14, 2015
The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing, The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Additional Temporary Disability Benefits was sent to the following recipients
by the following methods of service on this the 18th day of December, 2015.
Name Certified | First Via | Fax Via Email Address
Mail Class Fax | Number | Email
I ; | Mail _ _ ee
Dan Bieger, — | x dan@biegerlaw.com
_Employee’s Counsel_ _ I ee
Eric Shen, x eric shea@libertymutualeom
Ein ployer/Carrier’s
Counsel | — ee
Pong Mpc
Penny Shrum, Clérk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.goy
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