TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

JAMES DUKE, )

 Employee, ) Docket No. 2016-06-0340

)

v. )

)

WEISS PAINTING, ) State File No. 89416-2015

 Employer,

And

NATIONWIDE INSURANCE 

COMPANY, 

 Carrier.

)

)

)

)

)

)

)

Judge Joshua Davis Baker

EXPEDITED HEARING ORDER DENYING

TEMPORARY DISABILITY BENEFITS

This claim came before the Court on December 14, 2016, on the Request for 

Expedited Hearing filed by James Duke pursuant to Tennessee Code Annotated section 

50-6-239 (2016). The only disputed issue at this time is Mr. Duke’s entitlement to 

temporary disability benefits. For the reasons provided below, the Court finds Mr. Duke 

is unlikely to prevail at a hearing on the merits in proving his entitlement to temporary 

disability benefits and, therefore, denies his request at this time.

1

Claim History

On November 21, 2015, Mr. Duke, a house painter, fell and injured his left foot 

and ankle while working for Weiss Painting. Weiss accepted the claim and began paying 

him temporary disability. On May 9, 2016, Weiss discontinued temporary disability 

benefit payments upon receiving information that Mr. Duke had performed painting work 

 

1 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order 

as an appendix.
2

for pay. Mr. Duke filed a Request for Expedited Hearing seeking reinstatement of those 

benefits. That is the only matter at issue in this proceeding.

At the hearing, Richard Hjerbe, the owner of Richard’s Painting and Handyman 

Services, testified he had known Mr. Duke since grade school but had not seen him in 

several years before they met by chance at a restaurant in Dickson, Tennessee, just before 

Christmas in 2015.2 At the restaurant, Mr. Hjerbe noticed Mr. Duke had a cast on his 

foot. Mr. Duke told him he had an accident at work and broke his ankle. Mr. Hjerbe 

took Mr. Duke’s phone number during the conversation. 

In April, the doctor removed Mr. Duke’s cast, reduced his restrictions and 

suggested he resume some physical activity. Around that time, Mr. Hjerbe contacted Mr. 

Duke. The testimony provided differing accounts of the conversations between the men. 

According to Mr. Duke, Mr. Hjerbe contacted him for social reasons only. Mr. Hjerbe 

testified he contacted Mr. Duke to offer him work. According to Mr. Hjerbe, he met Mr. 

Duke on the morning of April 26, so the two could work together. He testified:

I met him at McDonald’s on Donelson Road. He got out in plain clothes, 

and I was like well I thought you come [sic] to work? And he said “well I 

brought my clothes with me because I didn’t want my wife to know I’m 

working, I’m not supposed to be working. I was like, why? And he said 

“because I broke my ankle and I’m drawing workman’s comp. I’m getting 

four hundred a week.”

Mr. Hjerbe testified Mr. Duke worked for him at the home from April 26-28, and 

received pay of fifteen dollars per hour. With the exception of Thursday, Mr. Hjerbe 

testified that Mr. Duke worked for eight hours each day. During those days, Mr. Duke 

removed wallpaper border, cut-in walls and ceilings, and painted doorframes and trim. 

He climbed ladders to do the work. Mr. Hjerbe testified that Mr. Duke took no regular 

breaks other than smoke breaks, and he did not complain that the work hurt him.

Mr. Hjerbe said his wife paid Mr. Duke in cash. When asked why he paid Mr. 

Duke in cash, Mr. Hjerbe stated Mr. Duke told him he could not receive a check because 

he was “drawing workman’s comp.” Mr. Hjerbe called Mr. Weiss and told him that Mr. 

Duke had worked for him. 

Mr. Duke denied that he worked for Mr. Hjerbe and denied that Mr. Hjerbe paid 

him for work. Instead, he maintained he paid social visits to Mr. Hjerbe from April 26-

28, and that they visited the jobsite secondarily. Mr. Duke admitted he helped Mr. 

 

2 Mr. Duke testified he had known Mr. Hjerbe since grade school, but had not heard from him in twenty years. 

However, he also testified that he helped Mr. Hjerbe repair his truck before suffering his workplace injury. 
3

Hjerbe with some tasks at the home: He admitted to carrying paint, climbing a ladder to 

“cut-in” a ceiling and removing wallpaper.3 He claimed he spent approximately one to

two hours assisting Mr. Hjerbe with these tasks on the first day. He denied any of the 

tasks were outside his restrictions.

Nicky Weiss, the owner of Weiss Painting, testified that he attempted to contact 

Mr. Duke on several occasions after his injury but could not reach him. After Mr. Duke’s 

restrictions were relaxed, Mr. Weiss told his insurance company he could find work 

within Mr. Duke’s restrictions. Mr. Weiss, however, never had a conversation with Mr. 

Duke concerning the availability of work. At the hearing, Mr. Duke testified the treating 

physician has not released him to return to work without restrictions and recently 

diagnosed him with complex regional pain syndrome. 

Mr. Duke denied Mr. Weiss attempted to return him to work. He answered “no 

sir” when asked whether Mr. Weiss or the insurance company notified him that Mr. 

Weiss had work available. Mr. Duke further stated he could not have worked as a painter 

under his restrictions even if work were available. He further testified he spoke with Mr. 

Weiss on April 27, and Mr. Weiss told him he “wanted him off his workman’s comp” 

and “did not need him anymore.” Mr. Weiss denied telling this to Mr. Duke and further 

denied he terminated Mr. Duke from Weiss Painting.

Law and Argument

The sole issue for consideration is whether Weiss Painting must resume paying 

temporary disability benefits. Under the Workers’ Compensation law, Mr. Duke bears 

the burden of proving every element of his claim, including entitlement to additional 

temporary disability benefits. See Tenn. Code Ann. § 50-6-239(c)(6) (2016); see also 

Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. 

LEXIS 39, at *5 (Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015). In the context of an 

expedited hearing, however, Mr. Duke need only prove a “likelihood of success at a 

hearing on the merits” concerning his entitlement to temporary disability benefits. See 

Tenn. Code Ann. § 50-6-239(d)(1) (2016); 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). As explained below, the Court finds Mr. Duke failed to 

carry that burden.

An employee is entitled to receive temporary partial disability benefits, pursuant to 

Tennessee Code Annotated section 50-6-207(2) (2016), when an employee is temporarily 

unable to work but “the temporary disability is not total.” Stem v. Thompson Servs., No. 

M2010-01566-WC-R3-WC, 2011 Tenn. LEXIS 742, at *27 (Tenn. Workers’ Comp. 

 

3 To “cut-in” is to paint the corners and edges of a ceiling or wall prior to painting the rest of the ceiling or wall. 
4

Panel July 26, 2011); Jewell v. Cobble Construction and Arcus Restoration, No. 2014-05-

0003, 2015 TN Wrk. Comp. App. Bd. LEXIS 1, at *22 (Tenn. Workers’ Comp. App. Bd. 

Jan. 12, 2015). “Temporary restrictions assigned by physicians during an injured 

worker’s medical treatment do not establish an entitlement to temporary disability 

benefits if the employee is able to work without loss of income.” Young v. Young 

Electric Co., et al., No. 2016-06-0860, 2016 TN Wrk. Comp. App. Bd. LEXIS 41, at *12 

(Tenn. Workers’ Comp. App. Bd. Sept. 14, 2016) (citing Long v. Mid-Tenn. Ford Truck 

Sales, 160 S.W.3d 504, 511 (Tenn. 2005); Vinson v. Firestone Tire and Rubber Co., 655 

S.W.2d 931, 933 (Tenn. 1983)).

The outcome of this expedited hearing turns almost entirely on the credibility of 

the witnesses’ testimony. In that regard, the Court finds Mr. Hjerbe presented the most 

credible testimony. Mr. Hjerbe, the most disinterested witness, testified he paid Mr. 

Duke fifteen dollars per hour to paint a home. He stated that Mr. Duke climbed ladders, 

cut-in ceilings and walls, carried paint, and removed wallpaper border. He further 

testified Mr. Duke did all these activities over the three-day period from April 26-28, and 

asked for cash payment, ostensibly to avoid losing his workers’ compensation benefit 

payments. The Court finds his testimony credible, and finds that Mr. Duke worked as 

Mr. Hjerbe’s employee, performing regular duties as a painter. 

Conversely, the Court did not find Mr. Duke’s testimony credible for several 

reasons. First, the events as described by Mr. Duke make little logical sense to the 

undersigned. The Court finds it implausible that Mr. Duke, who testified he had not seen 

Mr. Hjerbe in almost twenty years, would meet Mr. Hjerbe at 8:00 a.m. at a McDonald’s 

to have social outings on three consecutive days. Second, Mr. Duke testified 

inconsistently about his relationship with Mr. Hjerbe. As stated previously, Mr. Duke 

testified he had not seen Mr. Hjerbe in twenty years. Later, however, he testified he had 

helped Mr. Hjerbe fix his truck before Mr. Duke suffered his workplace injury. For these 

reasons, the Court finds Mr. Duke did not provide credible testimony.

The Court finds Mr. Duke performed work as a painter for Mr. Hjerbe over the 

period from April 26-28, and Mr. Hjerbe paid him for that work. The Court finds he 

performed this work without difficulty. The Court further finds Mr. Duke willfully 

attempted to conceal both his ability to work and his receipt of income from Weiss

Painting so that he could continue to receive temporary disability benefits. The Court, 

therefore, holds Mr. Duke had the ability to work and earn a wage, despite the restrictions 

on activity recommended by his physician, rendering him ineligible for temporary

disability benefits. Young, 2016 TN Wrk. Comp. App. Bd. LEXIS 41 at *12.

Mr. Duke argued that, even if he worked for Mr. Hjerbe, his work does not 

disqualify him from receiving temporary partial disability benefits because his doctor has 

not released him to work at full-duty, and Weiss never offered him work within his 

restrictions. The Court respectfully disagrees. While the Court agrees that in general an 
5

employee who is able to work under restrictions but was not offered accommodating 

work by his employer would be entitled to temporary partial disability benefits, the 

entitlement dissolves when an employee willfully attempts to conceal income earned 

from work in an effort to receive a double recovery. The Court finds that Mr. Duke did 

exactly that. Accordingly, the Court holds Mr. Duke is not entitled to any additional 

temporary partial disability benefits. 

IT IS, THEREFORE, ORDERED:

1. Mr. Duke’s claim for reinstatement of temporary partial disability benefits is 

denied. 

2. This claim is set for a scheduling hearing on February 6, 2017, at 8:30 a.m. 

(CST). You must call 615-741-2113 or toll free at 855-874-0474 to participate in 

the Initial Hearing.

ENTERED ON THIS THE 21st DAY OF DECEMBER, 2016.

____________________________________

Judge Joshua Davis Baker

Court of Workers’ Compensation Claims
6

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 

$75.000. 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 
7

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.
8

APPENDIX 

Exhibits:

1. Medical Records

2. Affidavit of James Duke

3. Affidavit of Richard Hjerbe

4. Wage Statement

Technical record:

4

1. Petition for Benefit Determination filed August 9, 2016

2. Dispute Certification Notice filed September 26, 2016

3. Request for Expedited Hearing filed October 21, 2016

 

4

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.
9

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was sent to the 

following recipients by the following methods of service on this the 21st day of 

December, 2016.

Name Certified 

Mail

Via

Fax

Via 

Email

Service sent to:

Michael Fisher X mfisher@ddzlaw.com

Lynn Lawyer X lawyel2@nationwide.com

_____________________________________

Penny Shrum, Clerk of Court

Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov