Wright, Ezell v. Labor Ready

FILED
M ay 26, 2016
1N COUKf OF
W ORKIRS' CO!\IPINSATIO N
CLAIMS
Time: ll:H AAI
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT MEMPHIS
Ezell Wright, )
Employee, ) Docket No. 2015-08-0488
)
v. ) State File No. 83760-2014
)
Labor Ready, ) Judge Jim U msted
Employer, )
)
And )
)
New Hampshire Insurance Co., )
Insurer. )
EXPEDITED HEARING ORDER FOR MEDICAL AND TEMPORARY
DISABILITY BENEFITS
This case came before the undersigned Workers' Compensation Judge on May 18,
2016, upon the Request for Expedited Hearing filed by the employee, Ezell Wright,
pursuant to Tennessee Code Annotated section 50-6-239 (2015). The central legal issue
is whether the employer, Labor Ready Mid-Atlantic, Inc., must provide medical and
temporary disability benefits for the Employee's, Mr. Wright's, alleged work-related
back injury. For the reasons set forth below, the Court finds Mr. Wright is entitled to
continued medical treatment for his back as well as temporary disability benefits from
October 22, 2014, to September 21, 2015. 1
History of Claim
Mr. Wright is a fifty-four-year-old resident of Shelby County, Tennessee. He
worked for Labor Ready as a temporary employee. On October 22, 2014, he claimed he
injured his back at work while moving a copier. He immediately reported his injury to
his supervisor, Michael Cox, who sent him for authorized treatment at Concentra Medical
1
A complete listing of the technical record and exhibits is attached to this Order as an appendix.
1
Centers on the date of his injury.
Mr. Wright's medical provider at Concentra diagnosed him with a lumbar strain
and treated him conservatively with physical therapy and medication. The provider also
took Mr. Wright off work until October 27, 2014, and ordered a period of modified duty
beginning on October 27, 2014. On November 12, 2014, Mr. Wright's medical provider
ordered an MRI. Three weeks later, the provider referred Mr. Wright to an orthopedic
specialist.
Thereafter, Labor Ready stopped authorizing Mr. Wright's medical treatment, and
he sought medical care on his own at Regional One Medical Center and Methodist
Hospital. Based on his evaluations at these facilities, Mr. Wright received referrals to an
orthopedic spine specialist and a neurosurgeon. He remained on light-duty restrictions
while treating with these providers.
Labor Ready ultimately agreed to send Mr. Wright for authorized care with Dr.
Fereidoon Parsioon at Phoenix Neurosurgery. Mr. Wright presented to Dr. Parsioon on
September 21, 2015. Dr. Parsioon diagnosed Mr. Wright with back pain without
radiculopathy due to myofascial pain and ordered physical therapy. He also released Mr.
Wright to full-duty work and instructed him to return to the clinic after completing his
therapy.
Labor Ready failed to authorize the therapy ordered by Dr. Parsioon, and Mr.
Wright filed a Petition for Benefit Determination and a Request for Expedited Hearing.
At the Expedited Hearing, Mr. Wright testified Labor Ready finally approved the
physical therapy recommended by Dr. Parsioon last month but had not authorized a
return visit to Dr. Parsioon per his September 21, 2015 office note. Moreover, he
testified he never received temporary disability benefits while his medical providers had
him off work or on restricted duty. Mr. Wright calculated his compensation rate as
$271.55, based on a daily rate of pay, without considering days not worked. He asked for
ongoing temporary disability benefits beginning October 22, 2014, until Dr. Parsioon
placed him at maximum medical improvement or released him to full-duty work. He
stated he never received a letter from Labor Ready offering him a light-duty position
within his restrictions. According to Mr. Wright, he asked Mr. Cox for light-duty work
while he was undergoing physical therapy early in his treatment, but Mr. Cox rejected his
request. He also indicated he contacted Mr. Cox after Dr. Parsioon released him to full
duty. However, Mr. Cox never called him back with a job assignment.
Labor Ready did not call any witnesses at the hearing or provide any affidavits.
It did, however, stipulate Mr. Wright provided adequate notice of his injury, and for
purposes of the Expedited Hearing, it stipulated Mr. Wright's back injury was a
compensable work-related injury. Labor Ready calculated Mr. Wright's compensation
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rate as $223.72 and argued that no doctor placed Mr. Wright under restrictions after Dr.
Parsioon released him to full duty on September 21, 2015.
Findings of Fact and Conclusions of Law
General Legal Principles
At an Expedited Hearing, Mr. Wright need not prove every element of his claim
by a preponderance of the evidence in order to recover temporary disability and/or
medical benefits. 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,
20 15). Instead, he must come forward with sufficient evidence from which this Court
might determine he is likely to prevail at a hearing on the merits. !d.; Tenn. Code Ann. §
50-6-239(d)(l) (2015). This lesser evidentiary standard "does not relieve an employee of
the burden of producing evidence of an injury by accident that arose primarily out of and
in the course and scope of employment at an expedited hearing, but allows some relief to
be granted if that evidence does not rise to the level of a 'preponderance of the
evidence."' Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp.
App. Bd. LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015).
Medical Benefits
For purposes of this hearing, the parties stipulated Mr. Wright sustained a
compensable work-related back injury on October 22, 2014, and he provided adequate
notice of his injury to Labor Ready. On October 22, 2014, Mr. Wright began authorized
treatment at Concentra. Treatment included physical therapy and medication.
Eventually, Labor Ready approved a referral to a neurosurgeon, Dr. Parsioon, who the
parties agree is now the authorized treating physician. Dr. Parsioon treated Mr. Wright
on September 21, 2015, and noted,
[s]ince his physical therapy was done in the beginning of his treatment and
was only done for a short period of time, I am going to request physical
therapy for three weeks at three times a week. I will see him back after this
is complete and at that time I will make him [at] MMI and release him from
my care. He can work without restrictions.
Pursuant to Tennessee Code Annotated section 50-6-204(a)(1)(A) (2015), "the
employer or the employer's agent shall furnish, free of charge to the employee, such
medical and surgical treatment ... made reasonably necessary by accident as defined in
this chapter." After a delay in approving the physical therapy ordered by Dr. Parsioon,
Labor Ready authorized the therapy at Con centra. On April 22, 20 16, Con centra reported
Mr. Wright completed all nine of the physical therapy visits ordered. Mr. Wright now
requests approval to return to Dr. Parsioon as he ordered on the September 21, 2015 visit.
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The Court finds Mr. Wright is entitled to reasonably necessary medical treatment as
recommended by his authorized treating physician, and as required by Tennessee Code
Annotated section 50-6-204 (2015). Therefore, the Court finds Labor Ready shall
authorize Mr. Wright's return visit to Dr. Parsioon for such treatment made reasonably
necessary by the work accident.
Entitlement to Temporary Disability Benefits
An injured worker is eligible for temporary disability benefits if: (1) the worker
became disabled from working due to a compensable injury; (2) there is a causal
connection between the injury and the inability to work; and (3) the worker established
the duration of the period of disability. Simpson v. Satterfield, 564 S.W.2d 953, 955
(Tenn. 1978). Temporary disability benefits are terminated either by the ability to return
to work or attainment of maximum recovery. !d. According to Concentra's records, Mr.
Wright was taken completely off work from October 22, 2014, to October 27, 2014.
Thereafter, Concentra imposed significant restrictions on Mr. Wright's work activities.
These medical restrictions continued until September 21, 20 15, when Dr. Parsioon
reported Mr. Wright could return to work without restrictions. Mr. Wright testified he
wanted to return to work and went to Labor Ready on multiple occasions while treating at
Concentra and prior to seeing Dr. Parsioon. However, no work was provided. He also
testified he asked Labor Ready to put him back to work after he saw Dr. Parsioon on
September 21, 20 15. Again, no work was provided.
Labor Ready, through its attorney, submitted a document purportedly mailed to
Mr. Wright offering light-duty work. Mr. Wright testified he never received the
document. Mr. Wright appeared nervous during his testimony, but the Court finds his
testimony honest, reliable, and credible. Labor Ready presented no testimony, live or by
affidavit, supporting its contention it mailed the document to Mr. Wright or that it offered
light-duty work to Mr. Wright. The Court determines Mr. Wright was unable to work
full duty and could obtain no light-duty work due to his injury during the period from
October 22, 2014, to September 21, 2015. Mr. Wright's request for temporary disability
benefits after September 21, 2015, is without merit.
Amount of Temporary Disability Benefits
Pursuant to Tennessee Code Annotated section 50-6-207(1)(A) (2015), "[for
injuries] producing temporary total disability, [an injured employee is entitled to] sixty-
six and two-thirds percent (66 2/3%) of the average weekly wages" during the period of
disability. Also, according to Tennessee Code Annotated section 50-6-207(2)(B) (2015),
"[i]n all cases of temporary partial disability ... 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." The Court determines Mr. Wright is entitled to temporary
4
disability benefits from October 22, 2014, until September 21, 2015, when Dr. Parsioon
deemed him able to work without restrictions. This is equivalent to forty-seven weeks
and five days. Mr. Wright received no earnings during that period of time, and
accordingly, is entitled to sixty-six and two-thirds percent of his average weekly wage for
this period.
Mr. Wright's average weekly wage (AWW) and weekly compensation rate (CR)
must be calculated. A Form C-41 Wage Statement shows Mr. Wright worked and earned
$8,725.06 during the fifty-two-week period preceding his injury. However, he only
worked periodically during that period, missing twenty-six weeks totally and working
some weeks partially. A typed note on the form indicates Labor Ready is "a temporary
day-labor employer that requires its workers to sign up each day to be considered for
available job assignments. Breaks in active employment are due to the worker's decision
to not make themselves [sic] available for work." Neither party submitted evidence
explaining the breaks in employment shown on the Form C-41. Mr. Wright contended
his CR should be $271.55 (equivalent to an AWW of $407.32). Labor Ready contended
the CR should be $223.72 (equivalent to an A WW of$355.58). Mr. Wright's calculation
was based on a daily rate of pay ($80.79) to calculate a weekly rate. Labor Ready's
calculation excludes all weeks where no work was performed and includes weeks where
there was partial work. Based on the evidence submitted, the Court finds Labor Ready's
method of calculation leads to a result that is fair to both parties. Therefore, the Court
finds Mr. Wright's AWW is $355.58 and his weekly CR is $223.72. Because Mr. Wright
had no earnings during the period of disability, temporary total disability benefits and
temporary partial disability benefits are equivalent.
Based on the above calculations, Mr. Wright is entitled to a combination of
temporary total disability benefits and temporary partial disability benefits of $223.72 per
week for a period of forty-seven weeks and five days. This totals $10,674.64.
Attorney's Fee
During the Expedited Hearing, Mr. Wright's attorney advised the Court he was
requesting a reasonable attorney's fee from any award to his client. Pursuant to
Tennessee Code Annotated section 50-6-226(a)(l) (2015), an attorney's fee shall be
deemed reasonable if it does not exceed twenty percent of the award to the injured
worker. Further, the Court finds a fee of twenty percent of the temporary disability
award is reasonable. Accordingly, Mr. Wright's attorney is awarded an attorney's fee
of twenty percent of$10,674.64, or $2,134.93, to be paid from Mr. Wright's award.
IT IS, THEREFORE, ORDERED as follows:
1. Labor Ready or its workers' compensation carrier shall provide Mr.
Wright reasonably necessary medical treatment as recommended by his
5
authorized treating physician, Dr. Parsioon, and as required by Tennessee Code
Annotated section 50-6-204 (2015). This includes a return visit to Dr. Parsioon
for examination and, if necessary, treatment.
2. Labor Ready or its workers' compensation carrier shall provide Mr. Wright
past temporary disability benefits from October 22, 2014, to September 21, 2015,
(forty-seven weeks and five days) in the weekly amount of $223.72, which shall
be paid in a lump sum of$10,674.64.
3. Mr. Wright's attorney is awarded an attorney's fee of twenty percent of
$10,674.64, or $2,134.93, to be paid from Mr. Wright's award.
4. This matter is set for a Status Hearing on June 27, 2016, at 9:15a.m. Central time.
5. 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)
(2015). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Bureau by email to
WCCompl iance.Ptogram@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 may result in a penalty assessment for non-compliance.
6. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
253-1471.
ENTERED this the 26th day of May, 2016.