Tucker, William v. LU, Inc.

FILED Feb 29, 2024 02:17 PM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT NASHVILLE William Tucker, ) Docket No. 2023-06-01704 Employee, ) v. ) LU, Inc., ) State File No. 44728-2022 Employer, ) And ) Bridgefield Cas. Ins. Co., ) Judge Kenneth M. Switzer Carrier. )

ORDER AMENDING EXPEDITED HEARING ORDER

LU filed a motion to amend the February 16, 2024 Expedited Hearing Order regarding temporary total disability benefits. For the reasons below, the Court alters the order in part.

Motion and Response The Expedited Hearing Order required LU to pay past temporary total disability in a lump-sum totaling $13,698.12, from November 8 through February 6, 2024. In addition, the order stated that LU must pay weekly benefits in the amount of $1,065.41 until Mr. Tucker reaches maximum medical improvement or is able to return to work.

LU argues in its motion that on February 20, Mr. Tucker’s attorney informed its counsel that LU paid him his full wages from November 8 until February 16. Payment stopped on February 16.

LU asks in the motion that the Expedited Hearing Order be altered to relieve it of the obligation to pay the past temporary total disability award of $13,698.12 as well as the ongoing order to pay temporary total disability benefits to the extent that the past payments exceed the compensation rate. He did not request a credit against any award of permanent disability benefits.

Mr. Tucker agrees that no past temporary disability benefits until February 16 are owed, but he insists that the order for continuing weekly benefits should not be reduced by any “credit” of salary paid minus temporary total disability benefits due from November 8, 2023, to February 16, 2024.

LU filed a notice of appeal on February 26 of the expedited hearing order.

Law and Analysis A motion to alter or amend a judgment shall be filed and served within thirty (30) days after the entry of the judgment. Tenn. R. Civ. P. 59.04 (2023). The Court of Workers’ Compensation Claims retains jurisdiction to resolve a timely filed motion to alter or amend the court’s decision, and a notice of appeal filed before the trial court’s disposition of the motion will be considered filed on the day the trial court files its order resolving the motion.

Watson v. LaborSmart, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 13, at *13 (Feb. 3, 2017).

Back To top Tennessee Code Annotated section 50-6-207(1)(B)(i) says that an employer may “choose to continue to compensate an injured employee at the employee’s regular wages or salary” during the employee’s period of temporary total disability. Further, subdivision 207(1)(B)(ii) provides that when an employee receives payments under subdivision (1)(B)(i) and the claim is determined by a court to be compensable, the employer shall be given credit for the payments. However, “The credit shall be no more than the employee would have been otherwise paid under subdivision (1)(A)[.]” (Emphasis added).

Here, LU chose to pay Mr. Tucker his full wages, as the statute permits. But by the statute’s plain language, the credit shall be no more than Mr. Tucker would have been otherwise paid, i.e. his compensation rate. LU’s credit ended on February 16 when they stopped paying his full salary.

By agreement, the order to pay past temporary disability benefits is vacated. LU or the carrier must pay the weekly benefit, starting February 17 and ongoing, of $1,065.41 until Mr. Tucker reaches maximum medical improvement or is able to return to work.

The Court reminds that a status hearing is set for April 29, 2024, at 9:15 a.m.

Central Time. You must call 615-532-9552 or 866-943-0025 to participate.

IT IS ORDERED.

ENTERED February 28, 2024.

________________________________________ JUDGE KENNETH M. SWITZER Court of Workers’ Compensation Claims CERTIFICATE OF SERVICE I certify that a copy of this Order was sent as indicated on February 28, 2024.

Name Certified Regular Email Sent to Mail mail Julie Reasonover, X [email protected] employee’s attorney [email protected] Greg Fuller, X [email protected] Houston Gunn, [email protected] employer’s attorneys [email protected]

_______________________________________ Penny Shrum Clerk, Court of Workers’ Compensation Claims [email protected]

NOTICE OF APPEAL Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries-at-work/ [email protected] | 1-800-332-2667 Docket No.: ________________________ State File No.: ______________________ Date of Injury: _____________________

___________________________________________________________________________ Employee v. ___________________________________________________________________________ Employer Notice is given that ____________________________________________________________________ [List name(s) of all appealing party(ies). Use separate sheet if necessary.] appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file- stamped on the first page of the order(s) being appealed): □ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________ □ Compensation Order filed on__________________ □ Other Order filed on_____________________ issued by Judge _________________________________________________________________________.

Statement of the Issues on Appeal Provide a short and plain statement of the issues on appeal or basis for relief on appeal: ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ Parties Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee Address: ________________________________________________________ Phone: ___________________ Email: __________________________________________________________ Attorney’s Name: ______________________________________________ BPR#: _______________________ Attorney’s Email: ______________________________________________ Phone: _______________________ Attorney’s Address: _________________________________________________________________________ * Attach an additional sheet for each additional Appellant * LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________

Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee Appellee’s Address: ______________________________________________ Phone: ____________________ Email: _________________________________________________________ Attorney’s Name: _____________________________________________ BPR#: ________________________ Attorney’s Email: _____________________________________________ Phone: _______________________ Attorney’s Address: _________________________________________________________________________ * Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE I, _____________________________________________________________, certify that I have forwarded a true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this case on this the __________ day of ___________________________________, 20 ____.

______________________________________________ [Signature of appellant or attorney for appellant]

LB-1099 rev. 01/20 Page 2 of 2 RDA 11082