### TENNESSEE BUREAU OF WORKERS' COMPENSATION IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT GRAY
JAMES HUGHES, Employee, 

### v. KENNAMETAL, INC., Employer, And 

### SENTRY INSURANCE COMPANY, Carrier. ) Docket No.: 2017-02-0604 ) ) 

### ) State File No.: 44387-2016 ) ) 

### ) Judge Lisa A. Lowe )



### COMPENSATION HEARING ORDER

This matter camebefore the Court for a CompensationHearing onJune 12, 2018. The parties stipulated thatMr. Hughes sustained awork-related lung injury onJune 13, 2016. The issue is permanent disability benefits and whether Mr. Hughes is limited to recovering his original award or is entitledto permanenttotal disability benefits. 1Forthereasons below, this Court finds that Mr. Hughes established by a preponderance ofthe evidence that he is only entitled to his original award. 

### History ofClaim
Kennametal employed Mr. Hughes as a coding operator. On June 13, 2016, while changing gases, gas containing hydrogen chloride escaped from the system and sprayed Mr. Hughes' face. Because he inhaled hydrogen chloride, he went to the emergency room, was admitted to the hospital, and remained in the intensive care unit for three days.
The authorized physician, Dr. JeffFarrow, placed Mr. Hughes at maximum medical

1The parties stipulated that Mr. Hughes' initial compensation period expired afterthe Compensation Hearing
on June 19, 2018. Since the compensation period had not expired at the time ofthe hearing and Kennametal would not stipulate that he would not be working for any employer on June 19, the Court is unable to address Mr. Hughes' entitlement to enhancement factors and/or extraordinary relief. The parties agreed he has until June 19, 2019, to pursue a claim for increased benefits and/or extraordinary relief. 1improvement (MMI) on September22, 2016, and he assigned apennanentimpainnentrating of20% percent and permanentrestrictions ofan environment free ofexcessive heat and/or chemicals. Initially, Dr. Farrow prepared a September 27, 2016 letter stating Mr. Hughes had significant limitations precluding him from seeking gainful employment in an exertional activityjob and that he should pursue a sedentaryjob in a clear air environment with no extreme temperatures. Mr. Hughes attempted to return to work but had some breathing difficulties. On November 7, Dr. Farrow wrote a letter clarifying that he recommended a working temperature ranging from 68-72 degrees. He also noted, "it's my understanding getting to and from his workstation is a problem, as he has to walkthrough areas ofpoor air quality. If accommodations could be made, this would be of great benefit to him." On November 17, Dr. Farrow wrote that it was his advice that Mr. Hughes choose a different profession rather than returning to work at Kennametal. During his deposition, Dr. Farrow explainedthe restrictions: "Wetalked about finding some other option for him, thathe could pursue gainful employment. Because ofhis exposure to that environment [Kennametal] was clearly keeping him sick, ifnot making him worse." Dr. Farrow also mentioned that Mr. Hughes might have problems around smoke, perfume, and colognes.
Mr. andMrs. Hughes' Testimony
Mr. Hughes testified that he has a special education diploma. He is unable to read or perform math because he has dyslexia. Mr. Hughes explained thathis activities are severely restricted because of his temperature limitations, and he has difficulty breathing when exposed to perfumes or colognes. He stated that when he attempted to return to work at Kennametal, walking through the plant to get to the office area caused him breathing difficulties. Mr. Hughes used his rescue inhaler several times and his nebulizerto administer
a breathing treatment during a break. He had to stay in bed the next day.
Mr. Hughes testified he is restricted to bed for two to three days due to breathing difficulties ifexposed to extreme temperatures, dust, orperfume/cologne. He further stated he has not looked for other work and could not maintain ajob, sincehis attendance wouldbe unreliable becausehe neverknows whenhis breathing condition will restricthis functioning or he will encounter someone wearing perfume/cologne. To determine ifhe could work in retail, Mr. Hughes tried to operate the cash register at the pharmacy where his wife works, but he was unsuccessful due to his dyslexia.
Mrs. Hughes testified herhusband wanted to return to work, buthe had to stay in bed after attempting to do so. She checks the air quality alerts daily to determine whether he can go outside. Mrs. Hughes verifiedMr. Hughes' difficulties with reading and writing, and that he was unsuccessful in his attemptto operate a cashregister. Mrs. Hughes also saidhis health has not improved since the accident, and he has more bad days than good.
2Vocational Experts' Testimony
Dr. Hankins performed a vocational evaluation. He interviewed and tested Mr. Hughes, reviewed medical reports, andperformed an occupational analysis. Dr. Hankins also wrote Dr. Farrow seeking clarification about lifting, sitting, and standing restrictions and relied onhis response in forming his opinion. Dr. Hankins testifiedthat ifheonly considered Dr. Farrow's restrictions, Mr. Hughes retains a 53%-63% vocational disability. However, couplingDr. Farrow'srestrictions with Mr. Hughes' self-assessment, Dr. Hankins surmised Mr. Hughes is permanently and totally disabled.
Dr. Gallowayperfonned avocational evaluation at Kennametal'srequest. He similarly performed an interview and testedMr. Hughes, reviewed medical reports, andperfonnedan occupational analysis. Dr. Galloway assessedhis vocational disability at 50%. However, ifhe consideredDr. Farrow'sresponse to Dr. Hankins about the additionalrestrictions, he agreed that Mr. Hughes retains a 53%-63% vocational disability. Findings ofFact and Conclusions ofLaw
At a CompensationHearing, Mr. Hughes must establish all elements ofhis claimby a preponderance ofthe evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2017).
Permanent Total DisabilityBenefits
Mr. Hughes seeks permanent total disability benefits. Tennessee Code Annotated section 50-6-207(4)(B) provides: "When an injury

... totally incapacitates the employee from working at an occupation that brings the employee an income, the employee shall be considered totally disabled[.]" The assessment ofpermanent total disability is based on numerous factors, including the employee's skills and training, education, age, local job opportunities, and the capacityto work at the kinds ofemployment available in the disabled condition. Roberson v. Loretto Casket Co., 722 S.W.2d 380, 384 (Tenn. 1986). Although a rating ofanatomical disability by a medical expert is also one ofthe relevant factors, "the vocational disability is notrestricted to theprecise estimate ofanatomical disabilitymade by a medical witness."Henson v. City of Lawrenceburg, 851S.W.2d809, 812 (Tenn. 1993). In addition, the employee's "ownassessment of[his] physical condition andresulting disability is competent testimony that should be considered[.]" Mcllvain v. Russell Stover Candies, Inc., 996 S.W.2d 179, 183 (Tenn. 1999). Here, the vocational experts disagreed about the extent ofMr. Hughes' vocational disability. Dr. Hankins statedthat he retains a 53%to 63%vocational disabilitywhentaking into account his physical capacity and other vocationally relevant factors. He further surmised that Mr. Hughes is totally disabled, considering the subjective factors as well. Dr.
3Galloway found thatMr. Hughes sustained 50%vocational disabilitybutdid notdisputeDr. Hankins' 53%-63% ratings when factoring in Dr. Farrow's response letter about lifting, sitting, and standing. However, he did not find Mr. Hughes totally disabled.

Mr. Hughesbelieves he is permanently and totally disabled becausehewould notbe a reliable and dependable employee, sinceheneverknows whenhis condition will confine him to bed rest. However, Dr. Farrow never stated that Mr. Hughes was unable to perform any work at all. While Mr. Hughes testified he attempted to operate a cash register, he acknowledged that he has not sought work since November 1, 2016. In fact, he applied for social security disability benefits. The issue is that Mr. Hughes did not attempt to work anywhere after leaving Kennametal.
TheAppeals Board addressed a similarsituation inDuignan v. Stower 'sMach. Corp., 2018 TN Wrk Comp. App. Bd. LEXIS 25 (May 29, 2018). InDuignan, the employeedid not seekemploymentbecausehe "listenedto his body" and feared re-injury. TheBoardheldthat
a finding ofpermanenttotal disability wouldrequire speculation, sincethen employee made
no effortto determine his options in the open labormarketconsistentwith hisrestrictions. 

### In further support ofits ruling, the Boardnoted neithermedical expert indicatedhe was unable to work. When considering only the permanent medical restrictions and not his selfassessment, the Appeals Board held the employee was 75% vocationally disabled. Similarly, althoughDr. Farrow did notrestricthimfrom working, Mr. Hugheshas not attemptedto find workwithinhis restrictions. Additionally, without consideringMr. Hughes' self-assessment, the vocational proof established jobs are available that fit within his restrictions. Therefore, the Court concludes that, while his employment options are significantly limited, they are not totally limited. The Court holds Mr. Hughes did not establish by a preponderance ofthe evidence that his lung injury totally incapacitated him from working at anyjobthatbrings an income. Thus, the Court denies Mr. Hughes' claim for permanent total disability benefits.
PermanentPartialDisability Benefits (PPD)
The parties stipulated that Mr. Hughes is entitled to permanent partial disability benefits. They agreed his original award equates to 

### $55,042.20 (450 weeks x 

### 20% = 

### 90 weeks x 

### $611.58). The parties further stipulated that Kennametal overpaidtemporary total disability (TTD) benefits for 6.5 weeks in the amount of$3,975.27, which should be credited against the PPD award, reducing it to $51,066.93.

After careful consideration ofthe record as a whole, this CourtconcludesMr. Hughes failed to establish by a preponderance ofthe evidence that he is permanently and totally disabled and is only entitled, at this time, to his original award of$51,066.93.

4IT IS, THEREFORE, ORDERED as follows:
1. Mr. Hughes is entitled to ongoing medical benefits with Dr. Farrow.
2. The amount ofpermanent disability benefit is$ $611.58 per week.
3. UnderTennessee CodeAnnotated section 50-6-207(3), Mr. Hughes is entitled to 450 weeks times his impairment rating, which equates to $$55,042.20, less the TTD overpaymentof$3,975.27, for an original award of$51,066.93 in permanentpartial disability benefits.
4. Mr. Hughes has until June 19, 2019, to pursue increased benefits and/or extraordinary relief.
5. Mr. Hughes' attorney is entitled to a fee oftwenty percent ofthe permanent partial disability award for a total of$11,008.44, plus reasonable expenses. He may file an application for approval ofthe proposed fee underTennessee Code Annotated section 50-5-226.
6. The filing fee for this cause is taxedto Kennametal underRule 0800-02-21-.07 ofthe Tennessee Compilation Rules and Regulations.
7. Kennametal shall file a Statistical Data form (SD-2) withinten business days ofentry ofthis Order.
8. Absent an appeal, this Order shall become final thirty calendar days after entry.
ENTERED July 10, 2018.

LISA A. LOWE, JUDGE 

### Court ofWorkers' Compensation Claims

5APPENDIX
Exhibits: 1) Independent Vocational Evaluation Report ofA. Bentley Hankins 2) Vocational Evaluation Report ofMichael Galloway 3) Deposition ofJames Hughes 4) Deposition Transcript ofMichael Murphy 5) Deposition Transcript ofEric Ragsdale 6) Deposition Transcript ofJeffrey R. Farrow, M.D. with attached Exhibits 7) Correspondence from Jeffrey R. Farrow, M.D., September 27, November 7, November 17, 2016 8) First Report ofWork Injury
Technical record: 1) Petition for Benefit Determination 2) Dispute Certification Notice 3) Request for Expedited Hearing 4) Employer's Motion to Strike Request for Expedited Hearing 5) Order Denying Employer's Motion to Strike Expedited Hearing 6) Pre-Expedited Hearing Statement ofEmployer 7) Pre-Expedited Hearing Statement ofEmployee 8) Employee's Notice of Intent to Use Standard Form Medical Report of Treating Physician, JeffR. Farrow, M.D., instead ofDeposition 9) Order 10) Scheduling Hearing Order, October 10, 20I7 11) Agreed Order Continuing Compensation Hearing 12) Scheduling Hearing Order, January 31, 2018 13) Joint Pre-Compensation Hearing Statement 14) Initial Joint Stipulation ofthe Parties 15) Employee's Witness and Exhibit List 16) Pre-Compensation Hearing Briefofthe Employer 17) Witness and Exhibit List ofthe Employer 18) Employer's Notice ofFiling Trial Exhibits 19) Employee's Compensation Hearing Brief 20) Employee's Notice ofFiling Trial Exhibits 21) Post-ADR Dispute Certification Notice Stipulated Findings ofFacts ofthe Parties: 1) The date ofMr. Hughes' injury is June 13, 2016. 2) Mr. Hughes gave notice ofthe injury to Kennametal on June 13, 2016. 3) Mr. Hughes sustained an injury by accident arising primarily out ofand in the course and scope ofemployment with Kennametal.
64) Mr. Hughes is fifty-one years ofage and a resident ofWashington County. 5) Mr. Hughes has completed the 

### Ii11 grade and has obtained a high school diploma. 6) Mr. Hughes received authorized medical treatment for the injury with Dr. Jeffrey Farrow. 7) All medical expenses were or will be paid by Kennametal or Sentry Insurance Company. 8) Mr. Hughes reached MMI on September 22, 2016. 9) Mr. Hughes received temporary disability benefits. 10) Temporary total disability benefits were paid from June 14, 2016, to November 6, 2016, in the amount of$12,23l.60. There is a 6.5 week TTD overpayment in light of the September 22, 2016 MMI Date. The overpayment is $3,975.27, which should be credited against the PPD award. 11) No temporary partial disability benefits were paid or owed. 12) Mr. Hughes has not returned to work for Kennametal, or any other employer, earning the same or greater wages as Mr. Hughes was earning prior to the injury. 13) Mr. Hughes' average weekly wage is $917.32, which entitles Mr. Hughes to a weekly compensation rate of$611.58. 14) The permanent anatomic impairment rating is 20% to the body as a whole. 15) Value oflnitial Compensation (OriginalAward) is $55,0042.20 (450 weeks x 20%)
x $611.58 = 90 weeks x $611.58 = $55,042.20. 16) Maximum value ofPermanent Total Disability would equal 884 weeks. 17) Mr. Hughes is entitledto future medical benefits with authorizedtreatingphysician, Jeffrey R. Farrow, M.D. 18) The initial compensation period expires on June 19, 2018. Stipulated onclusion 1) This claim is governedby the Workers' CompensationLaw for the state ofTennessee. 2) Anemploymentrelationship existed between Mr. Hughes and Kennametal, Inc. at all relevant times. 3) Mr. Hughes provided proper, statutory notice ofthe injury. 4) Mr. Hughes filed the Petition for BenefitDetermination withinthe applicable statute oflimitations.

7CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy ofthe Compensation Hearing Order was sent to the following recipients by the following methods ofservice on July 10, 2018.

Name Certified Via Via Service sent to : Mail Fax Email Jeffrey C. Taylor, 

## x jeff@taylorlawfirmtn.com Employee's Attorney
Michael 

### L. Haynie, 

## x MHaynie@manierherod.com Employer's Attorney

wc.courtclerk@tn.gov

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