Jones, Davont v. Platinum Trucking , 2019 TN WC 170 ( 2019 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
DAVONT JONES ) Docket No. 2016-08-0437
Employee )
v. )
) State File No. 29405-2016
PLATINUM TRUCKING, )
Uninsured Employer. )
) Judge Deana Seymour
COMPENSATION HEARING ORDER
The Court convened a Compensation Hearing on October 23, 2019. The Court
previously partially granted Mr. Jones’s Motion for Default Judgment and deemed his
injury compensable. The remaining issues include Mr. Jones’s entitlement to medical,
temporary disability, and permanent disability benefits. For the reasons below, the Court
holds Mr. Jones is entitled to medical and temporary disability benefits but not permanent
disability benefits.
History of Claim
While working as an over-the-road driver for Platinum Trucking, Mr. Jones
injured both feet on July 19, 2015, after falling from his truck. 1 He sought emergency
treatment, and his medical providers diagnosed him with bilateral heel fractures. Shortly
afterward, he was transferred to another hospital.
After the hospital discharged him, Mr. Jones treated with Dr. Allison Whittle. Dr.
Whittle restricted him for three months from any weight-bearing. Mr. Jones progressed
from casts to 3D boots, and ASO braces to double upright braces. However, Mr. Jones
used a motorized wheelchair due to significant pain.
1
Platinum Trucking did not have workers’ compensation insurance coverage at the time of Mr. Jones’s
injury. However, since Mr. Jones did not reside in Tennessee on the date of his injury, he does not qualify
for benefits under Tennessee Code Annotated section 50-6-801(d).
1
On November 3, 2016, Dr. Whittle found Mr. Jones’s fractures stable, urged him
to wean completely from his wheelchair, ordered additional physical therapy, and
assigned no restrictions. In March 2018, Dr. Whittle released Mr. Jones from care and
referred him to his primary care provider for a permanent disability assessment.
According to Dr. Whittle, Mr. Jones continued to use his motorized wheelchair and
complained of intense pain.
Dr. Whittle testified by deposition that Mr. Jones’s injury carries some
impairment, but she did not calculate a rating. She also testified that Mr. Jones probably
would not have been capable of working as a truck driver after he received weight-
bearing clearance in October 2015. 2
Mr. Jones testified regarding his wages and inability to work after his injury. He
stated Platinum Trucking paid him $1,200.00 to $1,400.00 weekly. He reported his injury
to Platinum Trucking, which advised him to apply for disability benefits. According to
Mr. Jones, he has not worked since his injury. He has a tenth-grade education and worked
as an over-the-road driver for twenty years. He testified he can no longer drive because
he cannot climb up into his truck or properly operate the pedals.
Findings of Fact and Conclusions of Law
At a Compensation Hearing, Mr. Jones must establish entitlement to the requested
benefits by a preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2019).
Temporary Disability Benefits
To receive temporary total disability benefits, Mr. Jones must show (1) total
disability from working as the result of a compensable injury; (2) a causal connection
between the injury and the inability to work; and (3) the duration of the period of
disability. Shepherd v. Haren Constr. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS
15, at *13 (Mar. 30, 2016). Since Mr. Jones submitted no medical proof that his providers
took him off work, he is not entitled to these benefits.
However, Mr. Jones is eligible for temporary partial disability benefits if he earned
less than his average weekly wage due to work restrictions. See Tenn. Code Ann. § 50-6-
207(2)(A). The Court must consider the reasonableness of Platinum Trucking in
attempting to return him to work and the reasonableness of Mr. Jones in failing to return
to work. Lasser v. Waste Mgmt., Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 20, at *14
(May 24, 2018).
2
Dr. Whittle also testified that the Regional One medical charges were reasonable and causally related to
Mr. Jones’s fall from his truck. However, she noted the Regional One bill charged for three walker boots
instead of two, which Dr. Whittle thought might be incorrect.
2
The unrebutted evidence shows that Platinum Trucking did not accommodate Mr.
Jones’s restrictions. According to Mr. Jones, Platinum Trucking told him to apply for
disability benefits, indicating its unwillingness to accommodate his restrictions. Mr.
Jones’s medical records reflect he remained on restricted duty from July 19, 2015, until
November 3, 2016, which entitles him to temporary partial disability benefits.
Since Platinum Trucking never filed a wage statement, the Court must rely on Mr.
Jones’s testimony regarding his average weekly wage. 3 Mr. Jones earned between
$1,200.00 and $1,400.00 per week when he worked for Platinum Trucking. The Court
finds Mr. Jones’s average weekly wage is $1,300.00, resulting in a weekly compensation
rate of $867.10. Therefore, Mr. Jones is entitled to temporary partial disability benefits
totaling $58,591.19 for the period between July 19, 2015, and November 3, 2016.
Permanent Disability Benefits
Turning to Mr. Jones’s request for permanent partial disability benefits, the Court
holds he failed to prove entitlement to these benefits. Mr. Jones failed to prove the extent
of his permanent impairment. Dr. Whittle never calculated a rating. As the Appeals Board
explained, “the method of calculating permanent partial disability as set forth in
Tennessee Code Annotated section 50-6-207 is dependent on the existence of a rating.
Thus, absent a permanent medical impairment rating, there is no statutory mechanism by
which a trial court can award permanent partial disability benefits.” Baumgardner v.
United Parcel Serv., 2017 TN Wrk. Comp. App. Bd. LEXIS 63, at *10-11 (Oct. 18,
2017). Without proof of an impairment rating, the Court denies Mr. Jones’s request for
PPD benefits.
Regarding permanent total disability benefits, Tennessee law provides that,
“[w]hen an injury not otherwise specifically provided for in this chapter totally
incapacitates the employee from working at an occupation that brings the employee an
income, the employee shall be considered totally disabled[.]” Tenn. Code Ann. § 50-6-
207(4)(B). The assessment of PTD is based on numerous factors, including the
employee’s skills and training, education, age, local job opportunities, and the capacity to
work at the kinds of employment available in the disabled condition. Roberson v. Loretto
Casket Co., 722 S.W.2d 380, 384 (Tenn. 1986). Although a rating of anatomical
disability by a medical expert is one of the relevant factors, “the vocational disability is
not restricted to the precise estimate of anatomical disability made by a medical witness.”
Henson v. City of Lawrenceburg, 851 S.W.2d 809, 812 (Tenn. 1993). In addition, the
3
Mr. Jones asked the Court to award the maximum rate since Platinum Trucking failed to file a wage
statement. However, in 2013, the legislature deleted subpart (c) of Tennessee Code Annotated section 50-
6-201, which allowed the maximum compensation rate to be used if the employer or insurer failed to file
a wage statement.
3
employee’s “own assessment of [his] physical condition and resulting disability is
competent testimony that should be considered[.]” McIlvain v. Russell Stover Candies,
Inc., 996 S.W.2d 179, 183 (Tenn. 1999).
The Court holds Mr. Jones failed to establish entitlement to PTD benefits. Dr.
Whittle neither assigned permanent restrictions nor indicated that Mr. Jones was unable
to work after she released him. Additionally, Mr. Jones did not submit an opinion from a
vocational expert regarding his ability to work. For these reasons, the Court denies his
request.
Medical Benefits
Moving to medical benefits, the Court holds Mr. Jones is entitled to the requested
benefits. Tennessee Code Annotated section 50-6-204(a)(1)(A) states, “the employer or
the employer’s agent shall furnish, free of charge to the employee, such medical and
surgical treatment . . . made reasonably necessary by accident as defined in this chapter.”
An employer may risk being required to pay for unauthorized treatment if it does not
provide the treatment made reasonably necessary by the work injury. See Young v. Young
Elec. Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 24, at *16 (May 25, 2016).
Here, since Platinum Trucking did not provide Mr. Jones with a panel of
physicians or any authorized treatment, it is responsible not only for treatment incurred at
Regional One Health but also for ongoing reasonable, necessary and related treatment
with Dr. Whittle.
IT IS, THEREFORE, ORDERED as follows:
1. Platinum Trucking shall pay past-due temporary partial disability benefits at the
weekly compensation rate of $867.10 in the lump-sum of $58,591.19 for the
period of July 19, 2015, through November 3, 2016.
2. Platinum Trucking shall pay all medical expenses incurred by Mr. Jones at the
direction of Regional One Health from his July 19, 2015 work injury.
3. Platinum Trucking shall provide Mr. Jones medical treatment under Tennessee
Code Annotated section 50-6-204(a)(1)(A). Dr. Whittle shall be the authorized
physician.
4. The Court refers this matter to the Compliance Program for consideration of
penalties under Tennessee Code Annotated section 50-6-118(a).
5 Platinum Trucking shall pay court costs of $150.00 to the Court Clerk within five
business days of this order becoming final.
4
6 Platinum Trucking, with the assistance of Mr. Jones and his attorney, shall prepare
and submit a Statistical Data Form within ten business days of the date of this
order becoming final.
7 Absent an appeal, this order shall become final thirty calendar days after entry.
ENTERED November 21, 2019.
____________________________________
JUDGE DEANA C. SEYMOUR
Court of Workers’ Compensation Claims
APPENDIX
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Initial Hearing
4. Order of Continuance
5. Order Resetting Scheduling Hearing
6. Scheduling Order
7. Motion for Default Judgment
8. Notice of Hearing
9. Order of Continuance
10. Order Granting Default Judgment and Resetting Status Hearing
11. Order on Status Hearing
12. Order on Scheduling Hearing
13. Notice of Filing Deposition Transcript of Dr. Allison P. Whittle, M.D.
14. Order Setting Compensation Hearing
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Exhibits:
1. Deposition transcript of Dr. Allison Paige Whittle, M.D., including exhibits
2. Petition for Benefits Determination
3. Dispute Certification Notice
4. Order Granting Default Judgment and Resetting Status Hearing
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on November 21, 2019.
Name Certified Email Service sent to:
Mail
Christopher Taylor, X ctaylor@taylortoon.com
Employee’s Attorney
Platinum Trucking, X X 1045 Bourbon Pl.
Employer Memphis, TN 38106
platinumtruckinginc@gmail.com
Compliance Program X WCCompliance.Program@tn.gov
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers'
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers'
Compensation Appeals Board, you must:
1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal," and file
the form with the Clerk of the Court of Workers' Compensation Claims within thirty
calendar days of the date the compensation hearing order was filed. When filing the
Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau's
website or any Bureau office) seeking a waiver ofthe filing fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of lndigency will
result in dismissal of your appeal.
3~ You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar days of the filing of the
Notice of Appeal. The statement of the evidence must convey a complete and accurate
account of the hearing. The Workers' Compensation Judge must approve the statement
of the evidence before -the record is submitted to the Appeals Board. If the Appeals
Board is called upon to review testimony or other proof concerning factual matters, the
absence of a transcript or statement of the evidence can be a significant obstacle to
meaningful appellate review.
4. After the Workers' Compensation Judge approves the record and the court clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
party has fifteen calendar days after the date of that notice to submit a brief to the
Appeals Board. See the Practices and Procedures of the Workers' Compensation
Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court's
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann.§ 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
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Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ __ _ _ _ _ __ 2. Address: - - - - - - - -- - - --
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - -- - - -- -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -
- - - - - - - - - - - - - -- -- Relationship: - - - - - -- - - -- - -
- - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -
6. I am employed by: - - - - - - - - - - -- - - -- - - - - - -- - - -- - -
My employer's address is: - - - - -- - - - -- - - - - - -- - -- - - - -
My employer's phone number is: - - - -- - - - -- - - - - - -- - - -- - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ __
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ! ~ li
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'
Rent/House Payment $ per month Med icai/Dental $ _ _ ___ per month
Groceries $ per month Telephone $ _ __ _ _ per month
Electricity $ per month School Supplies $ _ _ _ _ _ per month
Water $ per month Clothing $ _ _ _ _ _ per month
Gas $ per month Child Care $ _ _ _ _ _ per month
Transportation $ per month Child Support $ _ _ _ _ _ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ _ __
(FMV) - - - - - - - - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ __
(FMV) - - - - - - - - - -
Other $ _ _ _ __ Describe:_ _ _ _ __ _ __ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
____ dayof _____________________ , 20_ __
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ _ __
LB-1108 (REV 11/15) RDA 11082