McIntosh, Sarah Miles v. Randstad

FILED
February 22 , 2016
TN COURT OF
WORKIRS ' COMPINSATION
CLAIMS

TIM£ 10,50 AM

IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT MEMPHIS

Sarah Kaye Mcintosh, Docket No.: 2015-08-0106
Employee,
v. State File No.: 24706-2015

Randstad, Judge Jim Umsted
Employer,
And

ESIS,
Insurance Carrier.

EXPEDITED HEARING ORDER
DENYING TEMPORARY DISABILITY BENEFITS

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 her wrists.

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 a job enabling her to earn a wage equal to or better than that
earned at the time of injury." The central legal issue is whether Ms. Mcintosh is entitled
to receive temporary disability benefits for the time in question. This issue includes sub-
issues of whether 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 of light duty work. For the reasons set forth below, the Court finds Ms.
Mcintosh is not entitled to the requested benefits. 1

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A complete listing of the technical record and exhibits is attached to this Order as an appendix.

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History of Claim

Ms. Mcintosh claimed she injured her wrists on March 23, 2015, after filing
thousands of files over a period of a 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 of Dr. Moffatt on December 8, 2015. Prior to
the deposition of Dr. Moffatt, Randstad paid temporary total disability benefits to Ms.
Mcintosh as Dr. Moffatt had taken her completely off work. Ms. Mcintosh, who is self-
represented, did not attend the deposition.

In his deposition, Dr. Moffatt testified that Ms. Mcintosh would be able to
perform light duty work consisting of answering 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 her job assignment started December
21, 2015.

Ms. Mcintosh failed to accept the offer of light 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
reinstated payment of temporary total disability benefits.

Ms. Mcintosh testified that she never refused Randstad's offer of light duty work.
According to Ms. Mcintosh, she contacted Randstad's attorney upon receiving the offer
and asked for a copy of Dr. Moffatt's deposition transcript, because she was not aware of
the types of work Dr. Moffatt thought she could perform 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
of light duty work.

Findings of Fact and Conclusions of Law

General Legal Principles

This Court must interpret the Workers' Compensation Law 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 of her 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 of her claim by a preponderance of
the evidence in order to obtain relief at an expedited hearing. McCord v. Advantage

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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 must come forward with sufficient evidence from which the trial court can
determine she is likely to prevail on her claim at trial. !d.

Whether Ms. Mcintosh is entitled to temporary disability benefits from December 30,
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 of maximum 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]emporary partial 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-WC-
R3-CV, 2005 Tenn. LEXIS 1032, at *6 (Tenn. Workers' Comp. Panel Nov. 15, 2005).

Thus, in circumstances where the treating physician has 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 of hours and/or at a rate of pay equal to or greater than
the employee's average weekly wage on the date of injury, the injured
worker may be eligible for temporary partial disability.

Jones v. Crencor Leasing, No. 2015-06-0332, 2015 TN Wrk. 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. Moffatt placed Ms. 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
attempt to perform the light duty work offered by 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, her request for benefits is denied at this time.

IT IS, THEREFORE, ORDERED as follows:

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1. Ms. Mcintosh's claim against Randstad and its workers' compensation carrier for
the requested temporary partial disability benefits is denied at this time.

2. This matter is set for a Status Conference on February 29, 2016, at 1:30 p.m.
Central time.

ENTERED this the 22"d day of February, 2016.

Judge Jim Umsted
Court of Workers' Compensation Claims

Status Conference:

A Status Conference has been set with Judge Jim Umsted, Court of Workers'
Compensation Claims. You must call 615-532-9550 or toll-free at 866-943-0014 to
participate in the Status Conference.

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
your further participation.

Right to Appeal:

Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:

1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

2. File the completed form with the Court Clerk within seven business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.

3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. 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 appealing party may file an Affidavit

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of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency 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 of having 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 of Appeal. Alternatively, the parties may file a joint 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 submitted to the Clerk of the Appeals Board.

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

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APPENDIX

Exhibits:
1. Letter from Randstad to Ms. Mcintosh offering restricted duty work, dated
December 16, 2015;
2. Affidavit ofRandstad's attorney, Christie Hayes, 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 of light duty work, dated
December 17, 2015;
6. Email from Ms. Mcintosh to Ms. Hayes, dated December 17, 2015;
7. Deposition transcript of Dr. Wm. Lee Moffatt, dated December 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 of Dr. Moffatt's
test results; 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 Benefit Determination, filed April16, 2015;
2. Dispute Certification Notice, filed on May 28, 2015;
3. Expedited Hearing Order, entered July 13, 2015;
4. Expedited Hearing Order, entered September 24, 2015;
5. Request for Expedited Hearing, filed January 11, 2016; and
6. Randstad's Response to Ms. Mcintosh's Request for Expedited Hearing, with
attachments.

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy f the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 22nd day
ofFebruary, 2016.

Name Certified Via Via Service sent to:
Mail Fax Email
Sarah Mcintosh, X justkaye44@aol.com
Employee
Blair Evans, X bevans@bakerdonelson.com
Employer's Counsel

, Clerk of Court
Court of kers' Compensation Claims
WC.CourtClerk@tn.gov