IN THE COURT OFWORKERS' COMPENSATION CLAIMS ATMEMPHIS Sarah Kaye Mcintosh, Employee, DocketNo.: 2015-08-0106



### v. Randstad, And ESIS, State File No.: 24706-2015 JudgeJim Umsted Employer,

Insurance Carrier.

EXPEDITED HEARING ORDER DENYING TEMPORARYDISABILITYBENEFITS FILED
February 22,2016

TNCOURTOF WORKIRS' COMPINSATION CLAIMS TI

M£ 10,50 AM



### THIS CAUSE came before the undersigned Workers' Compensation Judge on January 27, 2016, upon the Request for Expedited Hearing filed by the employee, Sarah Kaye Mcintosh, pursuant to Tennessee Code Annotated section 50-6-239 (2015). Ms. Mcintosh seeks temporary disability benefits from December 30, 2015, to January 18, 2016, for injuries to herwrists. On September 24, 2015, the Court ordered Randstad to pay temporary disability benefits to Ms. Mcintosh "until she is either placed at maximum medical improvement (MMI) or able to work at ajob enabling her to earn a wage equal to or better than that earned at the time ofinjury." The central legal issue is whether Ms. Mcintosh is entitled to receive temporary disability benefits for the time in question. This issue includes subissues ofwhether Randstad offered Ms. Mcintosh light duty work within her medical restrictions for the time in question and whether Ms. Mcintosh unreasonably refused to accept the offer oflight duty work. For the reasons set forth below, the Court finds Ms. Mcintosh is not entitledto therequestedbenefits. 1

1A complete listing ofthe technical record and exhibits is attachedto this Order as an appendix. 1History ofClaim Ms. Mcintosh claimed she injured her wrists on March 23, 2015, after filing thousands offiles over a period ofa few days. The Court previously found her claim compensable, and she is currently receiving medical treatment with her authorized physician, Dr. Wm. Lee Moffatt. On November 24, 2015, Randstad sent notice to Ms. Mcintosh that it would take the deposition ofDr. Moffatt on December 8, 2015. Priorto the deposition ofDr. Moffatt, Randstad paid temporary total disability benefits to Ms. Mcintosh as Dr. Moffatt had taken her completely offwork. Ms. Mcintosh, who is selfrepresented, did not attendthe deposition. In his deposition, Dr. Moffatt testified that Ms. Mcintosh would be able to perform light duty work consisting ofanswering a telephone with a hands-free headset and writing down an occasional note. After the deposition, Randstad offered Ms. Mcintosh light duty work, which involved limited writing and lifting. Randstad also offered to work with her and her physician to modify the job duties to meet any limitations. Randstad advised Ms. Mcintosh that herjob assignment started December 21, 2015. Ms. Mcintosh failed to accept the offer oflight duty work, and on December 30, 2015, Randstad terminated payment of temporary disability benefits. However, on January 18, 2016, Dr. Moffatt performed surgery on Ms. Mcintosh, and Randstad reinstatedpayment oftemporarytotal disability benefits. Ms. Mcintosh testified that she never refused Randstad's offer oflight duty work. According to Ms. Mcintosh, she contacted Randstad's attorney upon receiving the offer and asked for a copy ofDr. Moffatt's deposition transcript, because she was not aware of the types ofwork Dr. Moffatt thought she couldperform and because she did not believe that Randstad's offer would comply with the work restrictions imposed by Dr. Moffatt. She admitted, however, that she never contacted anyone at Randstad regarding the offer oflight duty work. Findings ofFact and Conclusions ofLaw 

### GeneralLegalPrinciples This Court must interpretthe Workers' CompensationLaw fairly, impartially, and without favor for either the employee or employer. Tenn. Code Ann. § 50-6-116 (2015). The employee in a workers' compensation claim must prove all essential elements ofher claim. 

### Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015). However, an employee need not prove every element ofher claim by a preponderance of the evidence in order to obtain relief at an expedited hearing. 

### McCord v. Advantage 2Human 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 must come forward with sufficient evidence from which the trial court can determine she is likely to prevail onher claim attrial. !d. WhetherMs. Mcintosh is entitledto temporary disability benefitsfrom December30, 2015, to January 18, 2016 An injured worker is eligible for temporary disability benefits if: (1) the worker became disabled from working due to a compensable injury; (2) there is a causal connection between the injury and the inability to work; and (3) the worker established the duration of the period of disability. Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978). Temporary total disability benefits are terminated by either the ability to return to work or attainment ofmaximum recovery. !d. Temporary partial disability benefits are available when the temporary disability is not total. 

### See Tenn. Code Ann. § 50-6-207(1)-(2) (2015). Specifically, "[t]emporarypartial disability refers to the time, if any, during which the injured employee is able to resume some gainful employment but has not reached maximum recovery." Williams v. Saturn Corp., No. M2004-01215-WCR3-CV, 2005 Tenn. LEXIS 1032, at *6 (Tenn. Workers' Comp. PanelNov. 15, 2005). Thus, in circumstances where the treatingphysicianhas released the injured worker to return to work with restrictions prior to maximum medical improvement, and the employer either (1) cannot return the employee to work within the restrictions or (2) cannot provide restricted work for a sufficient number ofhours and/or at a rate ofpay equal to or greater than the employee's average weekly wage on the date of injury, the injured workermay be eligible for temporarypartial disability. Jones v. CrencorLeasing, No. 2015-06-0332, 2015 TNWrk. Comp. App. Bd. LEXIS 48, at *8 (Tenn. Workers' Comp. App. Bd. Dec. 11, 2015). The issue in the present case involves entitlement to temporary partial disability. The evidence supports a finding that Dr. MoffattplacedMs. Mcintosh on light duty work restrictions from December 30, 2015, to January 18, 2016. Randstad presented evidence that it offered to accommodate these restrictions. The Court finds Ms. Mcintosh failed to attemptto performthe light duty work offeredby Randstad. Based on the evidence presented in this case, Ms. Mcintosh has not come forward with sufficient evidence from which this Court can conclude she is likely to prevail at a hearing on the merits regarding entitlement to temporary disability benefits for the time in question. Therefore, herrequest for benefits is denied atthis time. IT IS, THEREFORE, ORDERED as follows: 31. 

### Ms. Mcintosh's claim against Randstad and its workers' compensation carrier for the requestedtemporary partial disability benefits is denied atthis time. 2. This matter is set for a Status Conference on February 29, 2016, at 1:30 p.m. Centraltime. ENTEREDthis the 22"d 

### day ofFebruary, 2016.



### JudgeJimUmsted CourtofWorkers' Compensation Claims Status Conference: A Status Conference has been set with Judge Jim Umsted, Court ofWorkers' Compensation Claims. You must call 615-532-9550 

### or toll-free at 866-943-0014 

### to participatein the StatusConference. Please Note: You must call in on the scheduled date/time to participate. Failure to call in may result in a determination of the issues without yourfurther participation.
Rightto Appeal: Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal the decision to the Workers' CompensationAppeals Board. To file aNotice of Appeal, you must: 1. 

### Completethe enclosed form entitled: "ExpeditedHearingNotice ofAppeal." 2. File the completed form with the Court Clerk within seven business days ofthe date the Workers' CompensationJudge enteredthe ExpeditedHearing Order. 3. Serve a copy oftheExpeditedHearingNotice ofAppeal uponthe opposingparty. 4. 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, or credit cardpayment. 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 appealingparty may file an Affidavit 4

### 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 of ensuring 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 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 submittedto the Clerk ofthe Appeals Board. 6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file suchposition statementwiththe Court Clerk within five 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, with the Court Clerk within five business 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, or other authority.

5APPENDIX 

### Exhibits: 1. 

### Letter from Randstad to Ms. Mcintosh offering restricted duty work, dated December 16, 2015; 2. Affidavit ofRandstad's attorney, ChristieHayes, dated January 19, 2016; 3. Email to Ms. Mcintosh with notice to take deposition of Dr. Moffatt, dated November 24, 2015; 4. Email from Ms. Mcintosh to Lorrie Hughes, legal secretary for Ms. Hayes, dated November 24, 2015; 5. Email from Ms. Hayes to Ms. Mcintosh regarding offer oflight duty work, dated December 17, 2015; 6. Email from Ms. Mcintoshto Ms. Hayes, datedDecember 17, 2015; 7. Depositiontranscript ofDr. Wm. LeeMoffatt, datedDecember 8, 2015; 8. (Marked for Identification Only): Fax cover sheet regarding utilization review request, dated December 17, 2015; 9. (Marked for Identification Only): Email from Ms. Hayes to Ms. Mcintosh regarding surgery request sent to utilization review and receipt ofDr. Moffatt's testresults; and 10.(Marked for Identification Only): Email from Ms. Hayes to Ms. Mcintosh regarding failure to accept light duty work. Technical record: 1. 

### Petition for BenefitDetermination, filed April16, 2015; 2. DisputeCertificationNotice, filed on May 28, 2015; 3. ExpeditedHearing Order, enteredJuly 13, 2015; 4

. ExpeditedHearing Order, entered September24, 2015; 5

. Request for ExpeditedHearing, filed January 11, 2016; and 6. Randstad's Response to Ms. Mcintosh's Request for Expedited Hearing, with attachments.

6CERTIFICATE OFSERVICE I hereby certify that a true and correct copy f the Expedited Hearing Order was sent to the following recipients by the following met hods ofservice on this the 22n dday ofFebruary, 2016.

Name Certified Via Via Service sentto: Mail Fax Email SarahMcintosh, X justkaye44@aol.com Employee BlairEvans, X bevans@bakerdonelson.com Employer's Counsel

, ClerkofCourt Courtof kers' Compensation Claims WC.CourtClerk@tn.gov

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