1

TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MURFREESBORO

CASEY HOPKINS

, ) Docket No. 2 019

- 05

- 0198

Employee, )

v. ) )

EMPLOYBRIDGE HOLDING CO.

, ) State File No. 95177

- 2016

Employer, )

A nd ) ) XL INS. AMERICA, INC.

, ) Judge Dale Tipps

Carrier. )

EXPEDITED HEARING ORDER GRANTING BENEFITS

This case came before the Court on December 12 , 2019

, for an Expedited Hearing

on whether M s . Hopkins is entitled to additional temporary disability benefits

. For the

reason s below, the Court holds she is entitled to the requested benefits

.

History of Claim

Ms. Hopkins suffered a significant work injury to her scalp on December 9, 2016

. Employbridge

, a temporary work agency, accepted the injury as compensable and provided medical treatment with Dr. Blair Summitt

. Ms. Hopkins has undergone multiple reconstructive operations

, and more are scheduled. She also continues to treat

for accident

- related PTSD with her authorized psychiatrist, Dr. Greg Kyser.

Dr. Kyser assigned Ms. Hopkins light

- duty restrictions on March 20, 2017. According to the affidavit of Employbridge employee Cody Sankowski, those restrictions

were no “factory work or work arou nd machinery.” Ms. Hopkins testified that she also

had restrictions from Dr. Summitt for a while , although she did not provide details.

Employbridge accommodated Ms. Hopkins’s restrictions with light duty from the date of her injury until September 20, 2018, when her job assignment ended. It then paid temporary disability benefits until November 27, 2018. According to Mr. Sankowski, 

### FILED Dec 19, 2019 01:51 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS2

Ms. Hopkins no longer had physical work restrictions after that date but only the limitations on factory wo rk and machinery. Employbridge also paid temporary disability

benefits from January 9 to 22, 2019, a fter o ne of Ms. Hopkins’s surgeries.

After her last assignment, Employbridge sent Ms. Hopkins for an interview with

one of its clients, but she did not get the job. She also described a phone call with an Employbridge employee to discuss the possibility of a night

- shift job. Ms. Hopkins expressed her preference not to work nights due to childcare concerns, but she said she would be willing if that w ere the only option. No job offer ever came from that

conversation

, and even though she asked several times, Employbridge never sent her for

other interviews or made any work offers

.

Ms. Hopkins testified that she had two jobs since her temporary benefits ended

. She worked for Victoria’s Secret for about a month in November and December 2018.

She also worked for two weeks in December for a company called Premium. Regarding other jobs, Ms. Hopki ns applied unsuccessfully with many other employers. 1

At the hearing, Ms. Hopkins requested temporary partial disability benefits from November 28, 2018, to the present, minus the six weeks she worked during that period.

Employbridge contended that Dr. Kyser’s medical restrictions are somewhat

vague because they do not specify wh ich type of machinery or factory work Ms. Hopkins should avoid. Also, it claimed the medical record is unclear as to wh ich time period

those restrictions cover. Final ly, Employbridge argued that Ms. Hopkins has no physical restrictions but only has environmental restrictions that do not merit disability benefits. For these reasons, it asked the Court to deny her request.

Findings of F act and Conclusions of Law

Ms. Hopkins must provide sufficient evidence from which this Court might determine she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50

- 6

- 239(d)(1) (201 9 ); McCord v. Advantage Human Resourcing , 2015 TN Wrk. Comp. App.

Bd. LEXIS 6 , at *7

- 8, 9 (Mar. 27, 2015). She seeks t emporary partial disability (TPD)

, which are available when the temporary disability is not total. Specifically, TPD “refers to the time, if any, during which the injured employee is able to resume some gainful

em ployment but has not reached maximum recovery.” An employee may receive TPD benefits when the treating physician has h er return to work with restrictions but the employer either (1) cannot return the employee to work within those restrictions or (2)

canno t provide restricted work that pays the employee’s average weekly wage on the date of injury. Heard v. Carrier Corp.

, 2018 TN Wrk. Comp. App. Bd. LEXIS 16, at *5

- 6 ( April 20, 2018 )

.

1 She was recently hired by a ca rpentry company but has not yet begun work

.3

Applying these criteria, Mr. Sanko wski confirmed that Ms. Hopkins had medical

restrictions

. Employbridge suggested some uncertainty exists about the duration of those

restrictions but presented no evidence to rebut Ms. Hopkins’s testimony that they are still in place. Further, although Employbridge discussed other job assignments with Ms. Hopkins, it made n o offers to return her to work

. Therefore, she is likely to prove at a hearing on the merits that Employbridge could not return her to work within her

restrictions.

Employbridge conten ded that Dr. Kyser’s restrictions are vague

. The Court disagrees. The evidence was that Ms. Hopkins was to do no “factory work or work around machinery.” These are admittedly very broad restrictions, but that does not make them vague. T o the contrary, a straightforward reading indicates exactly wh ich kind of work Ms. Hopkins may not do. Further, Employbridge has had over a year to ask Dr. Kyser, their own panel doctor

, for clarification if they were concerned about the scope of Ms. Hopkins’s limitations.

Regarding Employbridge’s argument that the restrictions are only environmental

, it produced no authority to suggest that environmental limitations are somehow differen t from physical restrictions in the TPD analysis. Further, psychiatric restrictions such as those assigned to Ms. Hopkins will generally be environmental rather than physical, and mental injuries are compensable under Tennessee Code Annotated section 50

- 6

- 102(14).

Ms. Hopkins established that, except for six weeks with other employers, she has not worked since September 20, 2018. Therefore, the Court holds s he is likely to prevail at a hearing on the merits that s he is entitled to TPD benefits for fifty

- eight weeks, 2 as well as continuing TPD benefits under Tennessee Code Annotated section 50

- 6

- 207(2).

The Court is unable to calculate the sum owed due to Employbridge’s failure to file a wage statement, the parties’ failure to stipulate a compensation rate at the hearing, and the lack of any testimony from Ms. Hopkins as to her wages. Once Employbridge files a wage statement, the Court will order immediate payment.

IT IS, THEREFORE, ORDERED as follows:

1. Employbridge shall file a wage st atement within ten calendar days of entry of this order so the Court may calculate the correct average weekly wage and compensation rate and issue an order for temporary disability benefits.

2. This matter is set for a Status Hearing on March 4, 2020 , at 9:0 0 a.m. You must

call toll

- free at 855

- 874

- 0473 to participate. Failure to call m ight result in a

2 September 21, 2018, to December 12, 2019, minus six weeks

.4

determination of the issues without your further participation. All conferences are set using Central Time

.

ENTERED December 19, 2019.

_____________________________________ Judge Dale Tipps

Court of Workers’ Compensation Claims

APPENDIX

Exhibits : 1. Rule 72 Declaration of Casey Hopkins

2. Rule 72 Declaration of Michele Simmons

3. Rule 72 Declaration of Cody Sankowski

4. Indexed Medical Records

5. Email from Dr. Greg Kyser

Technical record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

4. Employer’s Pre-Hearing Statement

5. Employer’s Witness and Exhibit List

CERTIFICATE OF SERVICE

I certify that a copy of the Expedited Hearing Order was sent as indicated on

December 19 , 2019.

Name Certified

Mail Email Service sent to:

David Goodman, Employee Attorney X dgoodman@forthepeople.com

Tiffany B. Sherrill, Employer Attorney X tbsherrill@mijs.com5 _____________________________________ Penny Shrum, Clerk of Court Court of Workers’ Compensation Claims WC.CourtClerk@tn.gov