INTHE COURTOFWORKERS' COMPENSATIONCLAIMS ATNASHVILLE

MarioMace,Employee, 

### v. Express Services, Inc.

And Sedgwick, Employer,

InsuranceCarrier. ) DocketNo.: 2015-06-0059 ) ) StateFile Number: 88006-2014 ) ) ChiefJudgeKennethM. Switzer ) ) ) )

EXPEDITEDHEARING ORDERDENYINGTEMPORARYDISABILITY BENEFITS

This matter came before the undersigned workers' compensation judge on the Request for Expedited Hearing filed by the employee, Mario Mace, pursuant to Tennessee Code Annotated section 50-6-239 (2014). The present focus ofthis case is Mr. Mace's entitlement to temporary partial disability benefits. The central legal issues
are whether the employer, Express Services, Inc., accommodated Mr. Mace's light-duty restrictions andthepropriety ofhis discharge from employment. Forthe reasons setforth below, the Court finds that Express accommodated Mr. Mace's restrictions and that his discharge was reasonable. Therefore, the Court denies his request for temporary disability benefits atthistime.1
HistoryofClaim

Mr. Mace is a forty-five-year-old resident of Humphreys County, Tennessee. (T.R. 1at 1.) He sustainedinjuriestohis left shoulderonNovember4, 2014, whileunder Express' employ. Dr. Damon Petty, an authorized provider, placed Mr. Mace on restrictions of"nouse ofleftarm atwork" onNovember 10, 2014. (Ex 1 at 1.) The restriction remained in place until July 7, 2015, when Dr. Pettyperformed surgery. !d. at 3. He excusedMr. Mace from work from July 10-21, 2015. !d. Express paidtemporary total disability benefits for that time. On July 22, 2015, Dr. Petty returned Mr. Mace to

1Acomplete listing ofthe technical record and exhibits admitted atthe Expedited Hearing is attachedto this Order
as an appendix. 1the previous light-duty restrictions. Id. at 5. Mr. Macetestified the restrictions remain in place.

After Dr. Petty assigned the November 10, 2014 restrictions, Mr. Mace testified that Express required him, and anywhere from one to three other injured employees, to perform clerical tasks, mostly in the kitchen. The duties included paper-clipping documents, compiling employment packets and emptying trashcans. (Ex. 2 at 2.) Mr. Mace saidthesetasks requiredhim to use his left arm. Inparticular, whenassemblingthe packets and paper-clipping documents, he had to shuffle papers to line them up together. Compiling the packets and paper-clipping hurt sometimes, he said. He was unable to openthe replacementtrash bags ortie the bags without using bothhands. His supervisor, Pam Kuhns, testified that she assisted with tying the trash bags. Ms. Kuhns testified that Express' policy is to accommodate injured workers' restrictions, so that they can continue earning apaycheck.

Mr. Mace stated on cross-examinationthathe toldMs. Kuhns on one occasionthat the clerical tasks caused him pain, but he did not ask for different work "because ofthe reply I got." Mr. Mace did not say when or where this conversation took place, nor did he elaborate regarding Ms. Kuhns' response. Ms. Kuhns stated that Mr. Mace never complained about the clerical work, but rather complained he was in pain and Dr. Petty had not prescribed pain medication. Had Mr. Mace complained about clerical work, she would have looked for other work for him. According to Ms. Kuhns, she told Mr. Mace he should never use his left arm. Mr. Mace agreed he never asked Dr. Petty to revise his restrictions.

Mr. Mace testified that, in early February, Express required him to remove trash from the parking lot outside its premises and the entire Dickson Square Properties parking lot, using a bucket and trash pincher. He drew the perimeter ofthe area he cleaned on a Google Maps aerial photo. (Ex. 9.) He testified he cleanedtheparking area six or seven times, without assistance, until Express discharged him. To accomplish the task, he put the refuse either in a bucket, a receptacle in front ofa store, or a boxthat he moved with his feet. He left the boxes for someone else to pick up. Ms. Kuhns testified that she retrieved the boxes with her car. She denied that she asked him to clean the parking lot "to humiliate him," and maintained that she occasionally picks up trash from the parking lot. Ms. Kuhns stated Mr. Mace "said he was tired ofdoing paperwork, and he would- he liked to be outside because he would go out and smoke frequently. He said he liked to go outside. That is one ofthe reasons I let him do that." Mr. Mace acknowledged on cross-examination that he told Ms. Kuhns he was tired ofsitting in the kitchen for eighthours perday, and askedto do otherwork.

Mr. Mace testified he began wearing sleeveless shirts in November 2014 because it hurt to put his left arm in sleeves. On February 5, 2015, Brett Hill, owner ofthe Express Franchise in Dickson where Mr. Mace worked, gave a verbal warning regarding

2a dress-code violation for the sleeveless shirts, but simultaneously approved Mr. Mace wearing the sleeveless shirts, as long as he covered his arms with ajacketin areas where clients and prospective employees frequent. Ms. Kuhns testified that Express has a written dress code for its office workers, but conceded that Express never provided Mr. Macewith a copy fthepolicy, nordid it apply to him. 2

On March 16, 2015, Mr. Mace cleaned the parking lot without wearing ajacket because it was a warm day. Afterward, he reentered Express's reception area without a jacket. Mrs. Kuhns wrote him up for violatingthe office dress code. (Ex. 6.) Afterward, according to Mr. Mace, he "muttered" as he walked out through the reception area, ''This is unf---ing believable." (Ex. 2 at 3.) Express offered the testimony and Affidavit (Ex. 3) of Denny Molsberry, a staffing consultant in the Dickson office. Ms. Molsberry testified that, while working in Express' reception area that day, she overheardMr. Mace say, "This is unf---ing believable" as he walked through the lobby. Ms. Molsberry said she believes two prospective Express employees in the roomheardthe statement as well.3 Mr. Mace denied the presence ofanyone other than either Ms. Molsberry or Ms. Kuhns in the areawhere he spokethe f-word.

Mr. Mace testified that, the next day, upon arrtvmg at work, he spoke to Ms. Kuhns briefly, requesting copies ofthe written warning and dress code, which she did not provide at thattime. After cleaningthe parking lot for approximately one and one-halfor two hours, Ms. Kuhns summoned Mr. Mace to her office. She proceeded to terminate him, saying that someone overheard him use inappropriate language the previous day. She gave him no documentation regarding the discharge. On cross-examination, Mr. Mace conceded using the f-word in his employer's reception area is unprofessional and the word he used is "obscene." Ms. Kuhns acknowledged she was not present when Mr. Mace said the word in question.4 She said Express has a "good reputation in the community." In her opinion, saying the f-word in the workplace is unprofessional, and she consideredhis use ofit insubordination. Ms. Kuhns stated, "Hewas dismissed for his misconduct for what he said in the lobby, withpeople out in the lobby there." Mr. Mace conceded in cross-examinationthat his use ofprofanity in the workplace was Ms. Kuhns'
reason for discharging him. Had Mr. Mace not been terminated, Ms. Kuhns said clerical workwithin his restrictions would still be available.

2 Both parties offered extensive testimony regarding Mr. Mace's post-injury work attire. However, in its briefand closing argument, Express stated that the use ofprofane language, rather than a dress-code violation, motivated the termination. Therefore, the Court places weight upon this testimony only to the extentthat it describes the incidents leading to Mr. Mace's frustration on March 16, 2015, when he used the f-word atthe workplace, and not as a reason for his discharge. 3 The Court notes that Ms. Molsberry's testimony and Affidavit differ substantially regarding her recollection ofMr. Mace using the f-word, particularly, where he was and whether he was walking or standing still when he uttered the words. While this casts doubt to some degree on her credibility, Mr. Mace does not dispute that he made the statement. 4 Neither counsel elicited the circumstances ortimeframe ofMs. Kuhns learning that Mr. Mace used the f-word in Ms. Molsberry's presence. 3Mr. Mace filed a Petition for Benefit Determination (T.R. 2) seeking temporary disability benefits from March 18, 2015, until July 9, 2015, andthenresuming onJuly 22, 2015, through the present.5 The parties did not resolve the disputed issues through mediation, and the Mediating Specialist filed a Dispute Certification Notice. (T.R. 3.) Mr. Mace**fil~d** a Request for ExpeditedHearing (T.R. 4), andthis Courtheard the matter
on October20, 2015.

At the Expedited Hearing, Mr. Mace asserted Express failed to accommodate his light-duty restrictions because it required him to perform tasks involving the use ofthe left ann. Express caused Mr. Mace's frustration with this failure and the unwarranted dress-code write-up. The termination was improper because Mr. Mace's conduct and words do not fall within the misconduct standard described in Ruffv. Neeley, No. W2006-01192-COA-R3-CV, 2006 Tenn. App. LEXIS 805 (Tenn. Ct. App. Dec. 20, 2006).
Express counteredthat all ofthe light-duty tasks it assigned fell within Dr. Petty's restrictions. Dr. Petty restricted Mr. Mace from using his left arm but not his left hand. Mr. Mace never complained that the assigned tasks caused him pain, nor did he seek different restrictions from Dr. Petty. Mr. Mace's use of the word "unf---ing" demonstrated "insubordination," "unprofessional conduct," and "lewd behavior" prohibited by its employee handbook. (Ex. 4 at 3.) Mr. Mace understood the rule and consequences for its violation, as evidenced by his signature on the "handbook receipt." (Ex. 5.) But for the discharge, Express could still be accommodating Mr. Mace's restrictions.
Findings ofFactand Conclusions ofLaw

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 ofproofon all essential elements ofa claim. Tindall
v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987);6 Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.

5 The parties stipulatedthat Mr. Mace's compensation rate is $220.34, or $31.48 perday. (Ex. 8.) Through the date ofthe Expedited Hearing, Mr. Mace missed 205 days, so that he requested $6,443.40 in past-due temporary partial disabilitybenefits. 6 The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation ofpreJuly 1, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, 

### *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). 4Workers' Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element ofhis or her claim by a preponderance ofthe 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 whichthe trial court can determine thatthe employee is likely to prevail at ahearing onthe merits. Id.

Tennessee law provides that an employer must pay temporary disability benefits until the employee reaches maximum medical improvement so long as the employee can prove an inability to work due to a compensable injury. Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978); see also Gray v. Cullom Machine Tool andDie, Inc., 152 S.W.3d 439 (Tenn. 2004); GluckBrothers, Inc. v. Coffey, 431 S.W.2d 756 (Tenn. 1968). An employee is entitled to receive temporary partial disability benefits, pursuant to Tennessee Code Annotated section 50-6-207(2) (2014), when "thetemporary disability is not total." Stem v. Thompson Servs., No. M2010-01566-WC-R3-WC, 2011 Tenn. LEXIS 742, at *27 (Tenn. Workers' Comp. Panel July 26, 2011); Jewell v. Cobble Construction andArcus Restoration, No. 2014-05-0003, 2015 TN Wrk. Comp. App. Bd. LEXIS 1, at *22 (Tenn. Workers' Comp. App. Bd. Jan. 12, 2015).
An injured employee is not entitled to temporary disability benefits if terminated for cause and the employer was reasonably capable of providing modified duty within the restrictions assigned. To be excused from this obligation, the employer must demonstrate that the termination ofemployment involved a breach ofthe reasonable expectations ofthe employer and appears reasonably appropriate. In such cases, the employer is deemed to have made reasonable efforts to accommodate the employee's work restrictions and the Employee's work injury is not the reason why he is not returned to his formerjob. See generally Carter v. First Source Furniture Group, 92 S.W.3d 367, 371-372 (Tenn. 2002) (holding that, "an employer should be permitted to enforce workplace rules without being penalized in a workers' compensation case." Id. at 368).

In order to decide the issue, the Court must determine: "(1) that the actions allegedly precipitating the employee's dismissal qualified as misconduct under established or ordinary workplace rules and/or expectations; and (2) that those actions were, as a factual matter, the true motivation for the dismissal." Ingram v. Heads Up Cutting Ctr., No. M2012-00464-WC-R3-WC, 2013 Tenn. LEXIS 338, at *20 (Tenn. Workers' Comp. Panel Apr. 10, 2013); see also Durham v. Cracker Barrel Old Country Store, Inc., No. E2008-00708-WC-R3-WC, 2009 LEXIS 3, at *9 (Tenn. Workers' Comp. PanelJan. 5, 2009).

The Court first considers whetherExpress was reasonably capable ofproviding modified duty within the restrictions assigned and whether it complied with those

5restrictions. The Courtrejects Express' assertion that Dr. Petty restricted Mr. Mace from using his left arm but not his left hand. Common sense dictates that the hand is part of the arm, and the broader restriction of "no use of left arm" encompassed the more specific prohibition against using the left hand in any significant way. The Court further observes that moving the left handto a certainposition, e.g. placing it on atable, requires movement ofthe shoulder, as demonstratedby Mr. Mace during the hearing.

The uncontroverted testimony from Ms. Kuhns was that Express' policy was to provide light-duty within workers' restrictions whenever possible so that they could continue to earn a paycheck. Mr. Mace testified he performed the clerical tasks contemporaneously with other injured persons. He asserted that the clerical/cleaning tasks caused him pain, but also conceded that he only brought this to Ms. Kuhns' attention once. He offeredno specificsregardingthat conversation.

While it is certainly more difficult to perform the tasks Mr. Mace described onehanded, it is not impossible. Mr. Mace exercised a degree of choice to use his left arm/hand at work. Under the circumstances, Express acted reasonably when it offered Mr. Mace the clerical/cleaning work in an attempt to accommodate his restrictions. Express had no basis to believe the tasks fell outside ofhis restrictions, given that he performedthe tasks for several months, and given Ms. Kuhns' plausible explanation that Mr. Mace complained about pain from a lack of medication rather than the assigned tasks. Expressprovedthatthese same modifiedduties remain available.
Next, the Court considers whether the actions precipitating Mr. Mace's dismissal qualified as misconduct under established or ordinary workplace rules and/or expectations.7 Mr. Mace admitted using the f-word in Express' reception area, which he conceded is "obscene." The established rules, as outlined in the employee handbook, do not specifically prohibit the use of foul language. Nonetheless, this Court has no difficulty finding that ordinary workplace rules and/or expectations preclude the use of "obscene" language in the workplace and especially in an area opentothepublic.

Thus the final inquiry is whetherMr. Mace's actions were, as a factual matter, the true motivation for his dismissal. Mr. Mace argued in his briefthat Express required him to clean the parking lot "to humiliate and wear Mr. Mace down to the point where he would voluntarily quit hisjob." The evidence did not bear that out. Mr. Mace did not introduce evidence ofa motive other than his use ofprofanity. Specifically, he offered
no proofthat Express harbored ill will about his workplace injury, nor did he produce written documentation indicating any other reason for the termination. Ms. Kuhns testified that Mr. Mace's use ofprofanity prompted the termination. This Court cannot infer any othermotivationbased onthe evidencebefore it atthis time.

7 The Court declines to analyze Mr. Mace's conduct using the standard outlined in Ruffv. Neeley, supra, as his counsel suggested, as that case involved misconduct in the context of an unemployment insurance hearing and therefore bears little orno precedential value upon this Court.
6Therefore, as a matter of law, Mr. Mace has not come forward with sufficient evidence at this time from which this Court can conclude that he is likely to prevail at a hearing onthe merits regardinghis entitlementto temporarypartial disabilitybenefits.



### ITIS, THEREFORE, ORDEREDAS FOLLOWS:

1. Mr. Mace'srequest for temporary disability benefits is denied

. 2. This matter is set for an Initial (Scheduling) Hearing on January 6, 2016, at 10:15
a.m. Centraltime.



### ENTEREDthis the26thday ofOctober,2015.

lnitial(Scheduling) Hearing:
An Initial (Scheduling) Hearing has been set with 

### Chief Judge Kenneth M. Switzer, Court ofWorkers' Compensation Claims. You must call 615-532-9552 or toll-free at866-943-0025to participatein theInitialHearing.

Please Note: You must call in on the scheduled date/time to participate. Failure to call in may result in a determination ofthe issues without yourfurtherparticipation.

Right toAppeal:

TennesseeLaw allows any party who disagrees with this ExpeditedHearing Order to appeal the decisionto the Workers' CompensationAppeals Board. To file aNotice of Appeal, youmust:

1. Completethe enclosed form entitled: '"ExpeditedHearingNotice ofAppeal."

2. File the completed form with the Court Clerk within seven business days ofthe datethe Workers' CompensationJudge enteredthe ExpeditedHearing Order.

3. Serve a copy ofthe Expedited HearingNotice ofAppeal uponthe opposingparty.

74. The appealing party is responsible for payment ofa filing fee in the amount of $75.00. Within ten calendar days after the filing ofa notice ofappeal, payment mustbe receivedby check, money order, orcredit cardpayment. Payments canbe made in person at any Bureau office or by United States mail, hand-delivery, or other delivery service. In the alternative, the appealingparty may file an Affidavit ofIndigency, on a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit ofIndigency may be filed contemporaneously with the Notice ofAppeal ormustbe filed withinten calendar days thereafter. The Appeals Board will consider the Affidavit ofIndigency 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 ofensuring a complete record on appeal, may request, from the Court Clerk, the audio recording of the hearing for the purpose ofhaving 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 ofAppeal. Alternatively, the parties may file ajoint statement of the evidence within ten calendar days of the filing of the Expedited Hearing Notice ofAppeal. The statement ofthe 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 submittedto the Clerkofthe Appeals Board.

6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file suchposition statement with the Court Clerkwithin three business days ofthe expiration ofthe 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, withthe Court Clerkwithinthreebusiness days ofthe filing ofthe appellant's position statement. All position statements pertaining to an appeal of an interlocutory order should include: (1) a statement summarizing the facts ofthe
case from the evidence admitted during the expedited hearing; (2) a statement summarizing the disposition ofthe case as a result ofthe expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an argument, citing appropriate statutes, case law, orother authority.

8APPENDIX

Exhibits:

Ex. 1: Medical Records ofMarioMace-Restrictions Ex. 2: AffidavitofMarioMace Ex. 3: AffidavitofDenny Molsberry Ex. 4: Express EmployeeHandbook (photocopy) Ex. 5: Employee Handbook signedreceipt Ex. 6: Express Employee WarningReport Ex. 7: Deposition ofAshley Warcewicz Ex. 8: FormC-41, Wage Statement Ex. 9: Google Maps aerial view ofExpress Services and adjacent businesses in Dickson, Tennessee Ex. 10: Employeeposition statement, July 14, 2015 Ex. 11: TOA "WorkLinkPhysician's Report,"January 12, 2015 Ex. 12: TOA "WorkLinkPhysician'sReport,"July 22, 2015 Ex. 13: Express Employee Handbook (original)

Technical record:i

1. Employeeposition statement, August 5, 2015 2. Petition forBenefitDetermination, August 18, 2015 3. Dispute CertificationNotice, September 14, 2015 4. Request for ExpeditedHearing, September 15, 2015 5. EmployeeMario Mace'sMemorandumin SupportofTTD, September 15,2015 6

. Employer's Brief in Opposition to Employee's Petition for Temporary Total DisabilityBenefits, September22, 2015

i 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 establishedbythe evidence.

9CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Expedited Hearing Order DenyingTemporaryPartial DisabilityBenefits was sentto the following recipients bythe following methods ofservice onthis the 26th day ofOctober, 2015.

Name Certified Mail WilliamHicky,**EmElo ee's**  Counsel GregoryFuller, Empjoyer's Counsel Via Via Service sentto: Fax Email X will@hickylaw

.l:om

X ghfutler@mijs.com

Penny Shr, m, ClerkofCourt CourtofWorkers' Compensation Claims WC.CourtClerk@tn.gov

10