1 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.,

Carrier. ) ) ) Judge Deana Seymour

EXPEDITED HEARING ORDER

The Court conducted an Expedited Hearing on August 15, 2019, to address Mr.

Thomas’s claim for additional temporary disability benefits. 1 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. 2 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, D r. Hayes again restricted Mr. Thomas from driving.

1 The parties agreed to a compensation rate of $911.66.

2 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. 

### FILED Sep 04, 2019 02:16 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS2 Dr. Giel began treating Mr. Thomas on April 26 and restricted him to “[n]o lifting over 40 lbs.” On May 24, Dr. Giel released Mr. Thomas to full duty.

At the hearing, Mr. Thomas introduced work

- status f orms 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 Ap ril 20 to May 24. 3

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 b etween 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 showe d his medical providers were within fifteen miles of his residence or workplace. Tenn. Code Ann. § 50

- 6

- 204(a)(3)(I)(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. 4

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 mi leage 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 pro vide 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).

3 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.

4 Mr. Thomas testified that the XPO Logistics pay stubs introduced into evidenc e 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 run ning the route for XPO.3 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

p artial 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 hi s 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 like ly 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 int roduced 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 fa iled 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 e arned 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 $731.664 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 t hat 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 a ny 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)(I)(6)(A).

However, the Court holds that Salmon Brothers did not establish the amount of an alleged cr edit 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), a s 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 (tempo rary 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)(ii) allows a credit against the

p ermanent 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 compensatio n 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.5 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. T his 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.

ENTER ED September 4, 2019.

_____________________________________ JUDGE DEANA C. SEYMOUR Court of Workers’ Compensation Claims6 APPENDIX

Exhibits:

1. Work Activity Status Reports from Concentra Medical Centers, March 27, 2018, to April 26, 2018 (Collective)

2. Check stubs for temporary disability benefits and mileage payments paid between April 9, 2018, and May 25, 2018 (Collective)

3. XPO Logistics pay stubs, March 11, 2018, to April 14, 2018

4. Receipt for faxes sent by Mr. Thomas on June 29, 2018

5. Final Medical Report, dated July 11, 2019

6. Mileage requested by Mr. Thomas

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Order on Show Cause Hearing

4. Request for Expedited Hearing, with attached Affidavit of Donald Thomas

5. Order Setting Status Hearing

6. Order Resetting Expedited Hearing

7. 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

Mail Fax Regular

mail Email Sent to

Donald Thomas, Employee X X 1630 Portland Ave. Memphis, TN 38127 Tyler Waterfield, Employer’s Attorney X tswaterfield@mijs.com

_____________________________________ Penny Shrum, Court Clerk Court of Workers’ Compensation Claims WC.CourtClerk@tn.gov