Thomas, Donald v. Salmon Brothers, LLC

FILED
Sep 04, 2019
02:16 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
DONALD THOMAS, ) Docket No.: 2018-08-0604
Employee, )
V. )
SALMON BROTHERS, LLC, ) State File No.: 22160-2018
Employer, )
And )
ACE AMERICAN INS. CO., ) Judge Deana Seymour
Carrier. )
EXPEDITED HEARING ORDER
The Court conducted an Expedited Hearing on August 15, 2019, to address Mr.
Thomas’s claim for additional temporary disability benefits.’ Salmon Brothers asserted
he was not entitled to the requested benefits because it was owed a credit against the
temporary disability for mistaken mileage payments.” The Court rejects Salmon
Brothers’s argument and holds Mr. Thomas established likelihood of success at a hearing
on the merits regarding his request for additional temporary disability benefits.
History of Claim
Mr. Thomas injured his back at Salmon Brothers. He received authorized
treatment from Drs. John Hayes and Thomas Giel.
From March 27 to April 3, Dr. Hayes restricted Mr. Thomas from driving due to
functional limitations. On April 3, Dr. Hayes released Mr. Thomas to full duty. A week
later Mr. Thomas returned to Dr. Hayes. During that visit, Dr. Hayes again restricted Mr.
Thomas from driving.
' The parties agreed to a compensation rate of $911.66.
* Salmon Brothers initially denied that any additional temporary disability benefits were owed. However,
at the hearing, it agreed it owed temporary disability benefits in the amount of $862.33.
1
Dr. Giel began treating Mr. Thomas on April 26 and restricted him to “[n]o lifting
over 40 Ibs.” On May 24, Dr. Giel released Mr. Thomas to full duty.
At the hearing, Mr. Thomas introduced work-status forms noting his restrictions
from March 27 to April 2 and from April 10 to May 24. He also introduced check stubs
showing temporary disability payments for those periods. The stubs indicated Mr.
Thomas received benefits from March 30 to April 2 and from April 20 to May 24.°
Mr. Thomas testified he started a light-duty position in April making $9.00 per
hour and that he worked in this light-duty capacity for 94.5 hours over a five-week
period. On cross-examination, he denied working for any company other than Salmon
Brothers.
For its part, Salmon Brothers agreed it owed Mr. Thomas $1,059.99 in unpaid
temporary disability benefits from April 10 through April 20. It also admitted a weekly
shortfall of $10.33 in temporary partial disability benefits paid between April 20 and May
24, which totaled $51.65 for the five-week period ($10.33 x 5 = $51.65). However,
Salmon Brothers contended it mistakenly paid Mr. Thomas $249.31 for mileage
reimbursement. Specifically, it argued Mr. Thomas’s mileage requests showed his
medical providers were within fifteen miles of his residence or workplace. Tenn. Code
Ann. § 50-6-204(a)(3)(D(6)(A) (2018). Further, Salmon Brothers argued Mr. Thomas
was concurrently employed by XPO Logistics where he earned an average weekly wage
of $254.51, which should be considered in calculating the amount of temporary disability
benefits it owed.*
In its calculations, Salmon Brothers considered its total underpayment of
$1,111.64 ($1,059.99 + $51.65) and its mistaken payment of $249.31 for mileage of
$249.31. Based on these calculations, Salmon Brothers contended it owed Mr. Thomas
$862.33 in additional temporary disability benefits ($1,111.64 - $249.31).
Findings of Fact and Conclusions of Law
At an Expedited Hearing, Mr. Thomas must provide sufficient evidence that he
would likely 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).
* The first payment totaled $520.95 for March 30 to April 2 and the second payment totaled $3,658.30 for
temporary benefits at a weekly rate of $731.66 from April 20 to May 24.
* Mr. Thomas testified that the XPO Logistics pay stubs introduced into evidence as Exhibit 3 were
connected to a subcontract Salmon Brothers had with XPO. He stated that he might have driven the routes
under the subcontract, but he did not receive the money documented in the stubs. Instead, that money
went to Salmon Brothers for running the route for XPO.
2
In considering Mr. Thomas’s request for additional temporary disability benefits,
the Court first notes his medical providers never totally restricted him from work.
Instead, they placed him on restricted duty. Thus, his recovery, if any, is in temporary
partial disability benefits (TPD). These benefits are payable during the time the
injured worker is able to resume some gainful employment but has not reached
maximum recovery. Barrett v. Lithko Contracting, Inc., 2016 TN Wrk. Comp. App.
Bd. LEXIS 70, at *8 (June 27, 2016). To prove entitlement to these benefits, Mr.
Thomas must show his treating physician released him to return to work with restrictions
before maximum medical improvement, and Salmon Brothers either (1) could not return
him to work within his restrictions or (2) could not provide restricted work for a
sufficient number of hours and/or at a rate of pay equal to or greater than his average
weekly wage on the date of his injury. See Jones v. Crencor Leasing and Sales, 2015 TN
Wrk. Comp. App. Bd. LEXIS 48, at *7-8 (Dec. 11, 2015).
Here, Mr. Thomas established his medical providers restricted his work activities
from March 27 to April 2 and from April 10 to May 24. He received temporary disability
benefits from March 30 to April 2 and from April 20 to May 24. However, Mr. Thomas
never received temporary disability benefits from April 10 to April 19. Salmon Brothers
agreed Mr. Thomas should have received temporary disability benefits during this period.
Therefore, the Court finds Mr. Thomas is likely to prevail in proving entitlement to these
benefits.
However, the Court declines to use information from the XPO pay stubs to
calculate Mr. Thomas’s temporary disability benefits as Salmon Brothers suggested. Mr.
Thomas explained that the pay stubs introduced into evidence were connected to a
subcontract Salmon Brothers had with XPO. He testified that these stubs did not
document any compensation he received that would indicate the wages he might have
earned in his disabled condition. Salmon Brothers failed to show otherwise.
Thus, the Court relies on Mr. Thomas’s testimony in calculating his TPD from
April 10 to April 19. According to Mr. Thomas, he earned $9.00 per hour for 94.5 hours
total over a five-week period encompassing these dates. Thus, he earned approximately
$170.10 per week in this role.
Considering these average weekly earnings, the Court turns to Tennessee Code
Annotated section 50-6-207(2)(B), which states that TPD is two-thirds 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. Applying that formula,
Mr. Thomas is entitled to $798.66 per week in TPD benefits ($1,367.49 - $170.10 =
$1,197.39 x .667 = $798.66), and for the ten-day period between April 10 and April 19,
he is entitled to $1,140.94 ($798.66 + 7 = $114.09 x 10 = $1,140.94).
Further, since Salmon Brothers only paid Mr. Thomas at a weekly rate of $731.66
3
for April 20 through May 24, the Court finds he is likely to prevail in proving a shortfall
of $67.00 per week ($798.66 - $731.66 = $67.00), which totals $335.00 for that five-
week period. Adding $1,140.94 for April 10 to April 19 and $335.00 for underpayment
between April 20 and May 24, the Court holds that Mr. Thomas is entitled to $1,475.94
in TPD.
Turning to Salmon Brothers’s request for a credit due to mistaken mileage
payments, the Court finds Mr. Thomas was not entitled to mileage payments.
Specifically, the evidence presented failed to show that any of his medical providers were
located outside a radius of fifteen miles from Mr. Thomas’s residence or workplace. See
Tenn. Code Ann. § 50-6-204(a)(3)(1)(6)(A).
However, the Court holds that Salmon Brothers did not establish the amount of an
alleged credit for its mistaken mileage payments. The only documentation presented
related to mileage payments was a check stub indicating that Mr. Thomas received
$67.21 in travel expenses. Salmon Brothers claimed that it paid an additional $249.31 in
mileage to Mr. Thomas, but it provided no evidence of this payment.
Salmon Brothers also failed to establish that it is entitled to a credit against Mr.
Thomas’s temporary disability benefits. It cited McCall v. Nat’l Health Corp., 100
S.W.3d 209, 213 (Tenn. 2003), as authority for the Court to order an employee to
reimburse an employer for any improperly paid benefits. Acknowledging that McCall
does not directly address erroneously paid mileage, Salmon Brothers contended that the
overpaid benefits in that case (temporary disability benefits) were analogous. The Court
does not necessarily disagree.
Instead, the Court observes that credits for improperly paid benefits are calculated
against permanent, not temporary benefits. Tennessee Code Annotated section 50-6-
207(2)(C) allows a credit against permanent disability if an employer pays temporary
disability benefits after the date the employee reached maximum medical improvement.
Tennessee Code Annotated section 50-6-207(1)(B)@i) allows a credit against the
permanent award when an employer continues paying the employee’s regular wage
during a period of temporary disability. Courts have also ordered credits against
permanent disability where an employer initially miscalculated the injured employee’s
compensation rate. See Jones v. Crenshaw, 645 S.W.2d 238, 241 (Tenn. 1983). Salmon
Brothers points to no authority allowing a credit against temporary disability for mistaken
mileage payments. Therefore, the Court denies its request for a credit for mileage
payments against the award of temporary disability benefits at this interlocutory stage.
IT IS, THEREFORE, ORDERED as follows:
1. Salmon Brothers’s request for a credit is denied, and Mr. Thomas is entitled
additional temporary disability benefits of $1,475.94.
2. This case is set for a Scheduling Hearing on October 28, 2019, at 8:30 a.m.
central time. You 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 your
participation.
ENTERED September 4, 2019.
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JUDGE DEANA C. SEYMOUR
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1.
NS
ANB w
Work Activity Status Reports from Concentra Medical Centers, March 27, 2018,
to April 26, 2018 (Collective)
Check stubs for temporary disability benefits and mileage payments paid between
April 9, 2018, and May 25, 2018 (Collective)
XPO Logistics pay stubs, March 11, 2018, to April 14, 2018
Receipt for faxes sent by Mr. Thomas on June 29, 2018
Final Medical Report, dated July 11, 2019
Mileage requested by Mr. Thomas
Technical Record:
NAW RYN
Petition for Benefit Determination
Dispute Certification Notice
Order on Show Cause Hearing
Request for Expedited Hearing, with attached Affidavit of Donald Thomas
Order Setting Status Hearing
Order Resetting Expedited Hearing
Employer’s Pre-Hearing Brief
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on September 4, 2019.
Name Certified | Fax | Regular | Email | Sent to
Mail mail
Donald Thomas, 4 X 1630 Portland Ave.
Employee Memphis, TN 38127
Tyler Waterfield, x tswaterfield @ mijs.com
Employer’s Attorney
i ‘ine dhe ——
Penny Shri dra, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk @ tn.gov
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: “Expedited Hearing 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.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals
Board. [List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
L] Temporary disability benefits
L] Medical benefits for current injury
LC Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
Address:
Party’s Phone: Email:
Attorney's Name: BPR#:
Attorney’s Address: Phone:
Attorney's City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: L]JEmployer LJEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I,
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of , 20
, certify that | have forwarded a true and exact copy of this
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of Ail Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam employed by:
My employer’s address is:
My employer’s phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
ssl $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe: )
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ __ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082