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             TENNESSEE BUREAU OF WORKERS' COMPENSATION
            IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT KNOXVILLE

JOSE ALVAREZ,                                  )   Docket No.: 2015-03-0337
         Employee,                             )
v.                                             )
SURFACE IGNITER, LLC,                          )   State File No.: 31161-2015
          Employer,                            )
And                                            )
NEW HAMPSHIRE INSURANCE                        )   Judge Lisa A. Lowe
CO./ LIBERTY MUTUAL,                           )
          Carrier.                             )



                         COMPENSATION HEARING ORDER


        This matter came before the undersigned Workers' Compensation Judge on April25,
2017, for a Compensation Hearing. The central legal issues are: (1) whether Mr. Alvarez's
left hand injuries arose primarily out of and in the course and scope of his employment, and
(2) whether Surface Igniter established by a preponderance of the evidence its affirmative
defense of willful violation of a safety rule.

        For the reasons set forth below, this Court holds Mr. Alvarez established by a
preponderance of the evidence that he sustained an injury primarily arising out of and in the
course and scope of his employment with Surface Igniter. This Court further holds that
Surface Igniter did not establish by a preponderance of the evidence that Mr. Alvarez
willfully violated a safety rule. Accordingly, the Court holds that Mr. Alvarez is entitled to
medical benefits and permanent partial disability benefits.

                                      History of Claim

       Mr. Alvarez has worked as a mechanic for Surface Igniter for twenty years. On April
2, 2015, he assisted co-worker Mariano Hernandez organizing boxes and bins from Surface
Igniter's move from Puerto Rico to Tennessee. Mr. Alvarez and Mr. Hernandez loaded a
large box onto a forklift to place it on a rack. Mr. Hernandez operated the forklift and lifted

                                               1
the box, but rather than going onto the rack, the box stuck. As a result, Mr. Hernandez
turned off the forklift, and Mr. Alvarez climbed on the fender of the forklift to push the box
onto the rack. As Mr. Alvarez moved his foot from the fender, Mr. Hernandez started the
forklift. Mr. Alvarez lost his balance and reached his gloved left hand out to balance himself.
His hand landed on the side of the forklift mast, and the chains on the mast pulled his hand
into them. After removing the glove, Mr. Alvarez discovered his middle, ring, and little
fingers bleeding. He went to supervisor Miguel Rodriquez's office to report the injury. Mr.
Rodriguez transported Mr. Alvarez to Blount Memorial Hospital for treatment. Mr. Alvarez
underwent surgery for partial amputations of his ring and little fingers. The incident
happened on a Wednesday; Mr. Alvarez returned to work the following Monday and has not
missed any additional time from work as a result of this injury.

       As for the safety rule violation claim, eight days post-accident, Mr. Alvarez received a
written warning notice from Mr. Rodriguez, who marked "Safety Violation" on the notice.
Under "Company policy violated," Mr. Rodriguez noted, "Fork Lift Operation safety," and
under "Specific behavior changes requested," Mr. Rodriguez noted, "To always observe and
comply with the company health and safety rules."

       Medical proof regarding the injury revealed the following. Mr. Alvarez obtained an
independent medical evaluation (IME) with Dr. Robert Chironna, who also provided
deposition testimony. 1 Dr. Chironna specializes in physical medicine and rehabilitation. He
does not perform surgery, and hand injuries make up approximately 1-2% ofhis practice. Dr.
Chironna testified within a reasonable degree of medical certainty that the work injury
contributed more than fifty percent in causing Mr. Alvarez's need for medical treatment,
considering all causes. He assigned Mr. .Alvarez a permanent impairment rating of 15% to
the body as a whole, which consisted of 5% for two finger amputations, 5% for
hypersensitivity, and 6% for loss of range of motion (ROM) in the middle finger. Dr.
Chironna stated the work injury contributed more than fifty percent to Mr. Alvarez's
disablement. With regard to the following, Dr. Chironna testified the work injury contributed
more than fifty percent to the need for treatment, the treatment was necessary, and the
treatment charges were reasonable according to community standards:




1
  On pages 8, 10, and 17 of Dr. Chironna's deposition transcript, defense counsel objected to plaintiffs counsel's
questions as leading. The Court sustains the objections as to the questions on pages 8 and I 0 and overrules the objection
as to the question on page 17. At the hearing, defense counsel also objected that on pages 11 and 12 Dr. Chironna read
from a medical record (marked as Exhibit 2) when he acknowledged (on page 31) that he did not rely on it to form his
IME opinion. Since defense counsel failed to make this objection during the proof deposition, the Court deems the
objection waived.

                                                            2
Deposition page          Deposition Exhibit        Provider               Amount
Page 21                  Exhibit 4                 Blount Memorial        $15,160.98
                                                   Hospital
Page 22                  Exhibit 5                 LeConte Radiology      $35.00
Page 23                  Exhibit 6                 Maryville              $1,800.00
                                                   Anesthesiologists
Page 24                  Exhibit 7                 Blount Memorial        $440.84
                                                   Hospital-PT
Page 25                  Exhibit 8                 Blount Memorial        $2,502.00
                                                   Hospital-PT
Page 26                  Exhibit 9                 Hesse Creek Emerg.     $902.00
                                                   Phys.
Page 28                  Exhibit 10                Blount Pathologists    $195.00
Page 29                  Exhibit 11                Blount Memorial        $99.00
                                                   Hospital-PT
Page 53                  Exhibit 13                Ortho TN               $4,290.00.

       Surface Igniter obtained an IME from Dr. Timothy Renfree, who also provided
deposition testimony. Dr. Renfree specializes in hand and upper extremity orthopedic
surgery, which constitutes approximately 80% of his practice. He assigned Mr. Alvarez a
permanent impairment of8% to the body as whole, based on ROM, function, and amputation
length. Dr. Renfree related Mr. Alvarez's impairment, including the loss of middle finger
ROM, to the work injury. He disagreed with all of Dr. Chironna's ratings and stated, "I think
[Chironna's] numbers were all over the place using the Fifth and Sixth [Edition of the AMA
Guides]. It really made no sense. His levels were wrong ... I don't understand Dr.
Chironna's IME ... he's not a hand surgeon."

        At the hearing, Mr. Alvarez and Surface Igniter's safety trainer, Richard Wilson,
watched a forklift safety training video. Although the video stated "Preview Only Not for
Training Purposes," Mr. Alvarez, Mr. Wilson, and Mr. Rodriguez testified it was the same
video content used for Surface Igniter's forklift training. Mr. Alvarez stated the training
video did not address handling items stuck on the forklift and did not address climbing on a
forklift. He testified that, at the time he got on the forklift fender, he did not think he would
be injured and did not consider it dangerous because he did not anticipate Mr. Hernandez
would turn on the forklift.

       Mr. Wilson testified the forklift training consists of watching the video, taking a
written exam including discussion of all incorrect answers, and a one-on-one evaluation with
each driver. When asked which safety rules Mr. Alvarez violated, Mr. Wilson stated Mr.
Alvarez was not wearing a seat belt, did not keep body parts in cabin, climbed on the forklift,

                                               3
and touched the mast, which was a moving part. However, he acknowledged the rules about
wearing a seat belt and remaining in the cabin are for forklift operators. He also
acknowledged the portion of the video that addressed moving parts related to performing
maintenance on the forklift. Mr. Wilson testified there have been no forklift violations this
year. If he had witnessed a violation, he would have given a verbal warning on first
occurrence, written warning on second occurrence, and reported any serious infractions to
Mr. Rodriguez. Mr. Wilson stated there is enough in the forklift training to understand that
one should not climb on the forklift but acknowledged the forklift training materials are
geared for operators and do not state rules for anyone other than the forklift operator. He
also stated that Mr. Alvarez could have used a ladder to remove the box instead of getting on
the forklift.

        Mr. Rodriguez testified that Surface Igniter cannot cover every potential incident with
a rule; rather, he expects people to use basic common sense. He stated there is no difference
between written rules and Surface Igniter's expectations. Mr. Rodriguez walks through the
plant ten to fifteen times a day but does not "micromanage" his employees. When discussing
how the accident occurred, he said, "in the heat of the moment sometimes people make bad
decisions," and Mr. Alvarez just "made a bad judgment that day." Mr. Rodriguez testified
Mr. Alvarez violated a safety rule when he used the forklift as a ladder. He agreed with Mr.
Wilson that ladders were available on the premises. He acknowledged Surface Igniter does
not have a rule against using the forklift as a ladder; it is just common sense. Mr. Rodriguez
also acknowledged that Mr. Alvarez did not intentionally grab the mast. Finally, Mr.
Rodriguez agreed that Surface Igniter did not present a written rule about not using a forklift
as a ladder or a written rule about not climbing on the forklift.

        Regarding the current condition of his left hand, Mr. Alvarez testified he is unable to
bend his middle finger all the way down, his amputated fingers feel numb, his ring finger
feels "confused" because of the flap, and the tip of his little finger is very sensitive. He also
said it is difficult for him to grip small objects.

                        Findings of Fact and Conclusions of Law

       Mr. Alvarez has the burden of proof on all essential elements of his claim. Scott v.
Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18,
20 15). At a compensation hearing, Mr. Alvarez must establish by a preponderance of the
evidence that he is entitled to the requested benefits. Willis v. All Staff, TN Wrk. Comp. App.
Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann.§ 50-6-239(c)(6) ("[T]he
employee shall bear the burden of proving each and every element of the claim by a
preponderance of the evidence.").




                                               4
                                          Causation

        To prove a compensable injury, Mr. Alvarez must show his alleged i!1iuries arose
primarily out of and in the course and scope ofhis employment. ld. at§ 50-6-102(14). To
do so, he must show an incident, or specific set of incidents, identifiable by time and place of
occurrence, caused his injury. ld. at § 50-6-102(14)(A). Further, he must show, "to a
reasonable degree of medical certainty that [the employment] contributed more than fifty
percent (50%) in causing the ... disablement or need for medical treatment, considering all
causes." ld. at§ 50-6-102(14)(C).

        Applying these principles to the facts of this case, the Court holds Mr. Alvarez
satisfied his burden of proving, by a preponderance of the evidence, that his left hand injuries
arose primarily out of and in the course and scope of his employment. Mr. Alvarez
established a specific incident that occurred while performing his work duties on Surface
Igniter's premises caused his injuries. Surface Igniter did not rebut Mr. Alvarez's testimony
about how the injury occurred. In addition, Dr. Chironna concluded within a reasonable
degree of medical certainty that Mr. Alvarez's work injury contributed more than fifty
percent in causing Mr. Alvarez's need for medical treatment, considering all causes.

                              Willful Violation of a Safety Rule

       Pertinent to this case, Tennessee Code Annotated section 50-6-11 0( a) excludes from
coverage certain injuries arising from an employee's conduct. Among such injuries are those
sustained as a result of an employee's "willful misconduct" and "willful failure or refusal to
use a safety device" or violation of a safety rule. Tenn. Code Ann. § 50-6-110(a)(l), (4).
When denying a claim on this basis, the burden of proof rests with the employer. Tenn. Code
Ann. § 50-6-110(b).

        The central legal issue in this case revolves around Mr. Alvarez's alleged willful
misconduct. Tennessee Code Annotated section 50-6-11 0( a) (20 16) provides in subsections
( 1) and (4) that no compensation shall be allowed for an injury or death due to the
employee's "willful misconduct" or "willful failure or refusal to use a safety device."
Gonzales v. ABC Prof'! Tree Servs., 2014 TN Wrk. Comp. App. Bd. LEXIS 2, at* 18 (Nov.
10, 2014 ). To meet its statutory burden of proof, an employer must prove the following four
elements: "(1) the employee's actual, as opposed to constructive, notice of the rule; (2) the
employee's understanding of the danger involved in violating the rule; (3) the employer's
bona fide enforcement of the rule; and (4) the employee's lack of a valid excuse for violating
the rule." ld. at *21.

       In this case, Surface Igniter provided documentation and testimony about specific
rules related to the operation of forklifts. There is no dispute that Mr. Hernandez was
operating the forklift at the time of the injury, not Mr. Alvarez. Surface Igniter failed to
                                               5
provide documentation about a specific rule prohibiting climbing on forklifts and/or using
forklifts as a ladder. In fact, both Mr. Wilson and Mr. Rodriguez acknowledged those were
not written rules. Instead, Mr. Rodriguez indicated that "it was just common sense."

        Thus, the Court holds that Surface Igniter failed to establish by a preponderance of the
evidence that it had a safety rule against climbing on a forklift and/or using a forklift as a
ladder. The Court agrees with Mr. Rodriguez that it would be virtually impossible for an
employer to create a specific safety rule to cover any and all instances. However, in order for
an employer to escape liability for an otherwise compensable claim, that employer must have
a specific rule in place and show that, despite an employee's knowledge of the rule, he or she
violated the rule. Thus, the Court holds Surface Igniter failed to establish the first element of
this defense.

        Even though Surface Igniter failed to establish the first Mitchell element, the Court
will briefly touch on the other elements. With regard to the danger involved, Mr. Alvarez
testified he did not think his actions were dangerous because he did not think that Mr.
Hernandez would start the forklift while he was still on it. Additionally, the Court finds it
significant that Mr. Alvarez's injuries occurred when his left hand touched the mast, but he
did not place his hand on the mast. He only reached for the mast to steady himself after
being knocked off balance after Mr. Hernandez started the forklift. If Mr. Hernandez had not
started the forklift, Mr. Alvarez would not have sustained his injuries. The Court holds
Surface Igniter failed to establish the second element of this defense.

        Mr. Wilson and Mr. Rodriguez testified there were no forklift safety violations prior
to Mr. Alvarez's accident. Therefore, the testimony regarding Surface Igniter's bona fide
enforcement of any forklift safety rules is equivocal. Finally, Mr. Alvarez testified that he
climbed on the forklift because the box was stuck and needed to be moved to the rack.
Although in hindsight he acknowledged that perhaps he could have used a ladder or stood on
a box, the fact that the stuck box had to be moved to the shelf constituted a valid excuse at
the time of the injury.

                                      Medical Benefits

       Having held Mr. Alvarez suffered an injury arising primarily out of and in the course
and scope of his employment, the Court must address his request for medical benefits. Under
the Workers' Compensation Law, "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[.]" Tenn. Code Ann. § 50-6-204(a)(l )(A). Employers are also required to offer
a panel of physicians "from which the injured employee shall select one ( 1) to be the treating
physician." Tenn. Code Ann. § 50-6-204(a)(3)(A)(i).

       Surface Igniter did not pay for any of Mr. Alvarez's medical treatment and did not

                                               6
provide him a panel of physicians. Dr. Chironna testified Mr. Alvarez's treatment was
reasonable and necessary as a result of the work injury. He further testified that the medical
bills totaling $25,424.82, attached as exhibits to his deposition, were reasonable according to
community standards. Accordingly, the Court holds Surface Igniter responsible for payment
of these medical bills and for providing Mr. Alvarez a panel of physicians for ongoing future
reasonable, necessary, and related medical care.

                                      Extent of disability

        For post-July 1, 2014 injuries, permanent partial disability is paid at sixty-six and two-
thirds percent of the injured employee's average weekly wage for the period of compensation
as determined by multiplying the employee's impairment rating by 450 weeks. Tenn. Code
Ann. § 506-207(3)(A) (2016).

        The experts in this matter disagree on Mr. Alvarez's impairment rating for purposes of
performing the calculation above for permanent partial disability benefits. "In evaluating
expert medical opinions, a trial judge may consider, among other things, the qualifications of
the experts, the circumstances of their evaluation, the information available to them, and the
evaluation of the importance of that information by other experts." Venable v. Superior
Essex, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 56, at *6 (Nov. 2, 2016). "A trial judge
has the discretion to conclude that the opinion of one expert should be accepted over that of
another expert." Sanker v. Nacarato Trucks, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 27,
at * 11-12 (internal citation omitted).

       Dr. Chironna assessed a fifteen percent permanent impairment to the body as a whole
under the AMA Guides. (Ex. 1.) Dr. Renfree, using the same reference, assessed an eight
percent permanent impairment. (Ex. 5.) Neither physician was an authorized treating
physician; both merely performed IMEs. Therefore, neither impairment rating is entitled the
statutory presumption of correctness.

       Dr. Chironna's specialty is physical medicine and rehabilitation, and hand injuries
only constitute approximately 1-2% of his practice. He based his ROM measurements on
passive rather than active motion. Dr. Chironna acknowledged that Table 15-31 of the Sixth
Edition of the Guides calculates impairment for finger ROM. However, he used the Fifth
Edition of the Guides rather than the Sixth because he thinks the Fifth is more
straightforward. Dr. Chironna also stated that the Sixth refers one back to the Fifth when
measuring ROM but acknowledged that the reference to the Fifth is for measuring not
calculating impairment. Dr. Chironna rated Mr. Alvarez's amputations at the PIP level but
acknowledged Mr. Alvarez has at least part of the DIP level on his little finger.

      In contrast, Dr. Renfree is an orthopedic surgeon specializing in hand and upper
extremity injuries. He testified hand injuries constitute eighty percent of his practice. Dr.

                                                7
Renfree explained that Dr. Chironna's amputation site ratings were incorrect because he used
the wrong joint level. Dr. Renfree stated that Dr. Chironna's numbers "were all over the
place using the Fifth and Sixth. It really made no sense." Dr. Renfree based his impairment
rating on active ROM and testified the Guides use active ROM. Dr. Renfree testified "you
cannot go back to the Fifth Edition for ratings unless the injury occurred before the Sixth
Edition came out," which is not the case here. Finally, Dr. Renfree's report thoroughly
detailed the basis for his impairment rating.

       The evidence preponderates in favor of Dr. Renfree. As such, the Court gives greater
weight to Dr. Renfree's impairment opinion and sets the impairment rating at 8% to the body
as a whole. It follows that Mr. Alvarez's permanent partial disability is 450 weeks multiplied
by 8%, a period of thirty-six weeks. At his stipulated compensation rate of $463.3 7, Mr.
Alvarez is entitled to permanent partial disability benefits totaling $16,681.32.

       After careful consideration of the evidence as a whole, this Court concludes that Mr.
Alvarez established, by a preponderance of the evidence, that his injury arose primarily out of
and in the course or scope of his employment with Surface Igniter, LLC.

 IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Alvarez shall recover from Surface Igniter permanent partial disability benefits in
      the amount of$16,681.32 representing an 8% permanent partial disability to the body,
      or 36 weeks of compensation at the stipulated compensation rate of $463.3 7. These
      benefits, having accrued, are payable in a lump sum.

   2. Surface Igniter shall pay for Mr. Alvarez's past medical expenses in the amount of
      $25,424.82. In addition, Mr. Alvarez shall receive lifetime future reasonable,
      necessary, and related medical benefits pursuant to statute. Surface Igniter shall
      provide Mr. Alvarez a panel of physicians for future medical treatment.

   3. Costs of this cause of$150.00 are assessed against Surface Igniter, pursuant to Tenn.
      Comp. R. and Reg. 0800-02-21-.07 (2016), to be paid within five days of this order
      becoming final.

   4. Surface Igniter shall prepare and file a statistical data form within ten business days of
      the date of this Order, pursuant to Tennessee Code Annotated section 50-6-244.

   5. After a Compensation Hearing Order entered by a Workers' Compensation Judge
      becomes final in accordance with Tennessee Code Annotated section 50-6-23 9( c)(7),
      compliance with this Order must occur in accordance with Tennessee Code Annotated
      section 50-6-239(c)(9). The Insurer or Self-Insured Employer must submit
      confirmation of compliance with this Order to the Bureau by email to
                                              8
W om pli ance.Pr gram@tn.gov no later than the fifth business day after this Order
becomes final or all appeals are exhausted. Failure to submit the necessary
confirmation within the period of compliance may result in a penalty assessment for
non-compliance.

ENTERED this the 15th day of May 2017.



                                     HON. LISA A. LOWE
                                  Workers' Compensation Judge




                                    9
                                     APPENDIX

Exhibits:
   1) Dr. Chironna's Deposition Transcript with Exhibits
   2) Web address for safety video (marked for identification purposes only)
   3) Employer's forklift safety training materials (Collective)
   4) Employee Warning Notice
   5) Dr. Renfree's Deposition Transcript with Exhibits

Technical record:
   1) Petition for Benefit Determination
   2) Dispute Certification Notice
   3) Request for Initial Hearing
   4) Initial Hearing Order
   5) Notice Regarding Expert Witnesses
   6) Employee's Proposed Expert Witness List
   7) Notice of Deposition
   8) Notice of Expert Witness Deposition
   9) Employee's Tenn. R. Civ. P. 56.01 Motion for Summary Judgment
   10) Employee's Brief in Support ofMotion for Summary Judgment
   11) Employee's Statement of Undisputed Material Facts
   12) Order Granting Motion to Compel
   13) Employer's Response to Motion for Summary Judgment
   14) Employer's Statement of Additional Undisputed Material Facts
   15) Employer's Response to Statement of Undisputed Material Facts
   16) Employee's Response to Employer's Statement of Undisputed Material Facts
   17) Employer's Motion to Exclude Dr. Chironna's impairment ratings·
   18) Employee's Response to Motion to Exclude
   19) Order Denying Employer's Motion to Exclude
   20) Notice of Filing Deposition of Dr. Timothy Renfree
   21) Order Denying Employee's Motion for Summary Judgment
   22) Employee's Motion in Limine to Exclude Deposition Testimony & Reports of Dr.
      Timothy Renfree
  23) Employer's Response to Motion in Limine to Exclude Deposition Testimony &
      Reports of Dr. Timothy Renfree
  24) Order Denying Employee's Motion in Limine to Exclude Deposition Testimony &
      Reports of Dr. Timothy Renfree
  25) Employee's Motion in Limine to Exclude New Safety Rule Violations
  26) Employer's Response to Motion in Limine to Exclude New Safety Rule Violations
  27) Employer's Reply to Employee's Response to Employer's Motions in Limine to
      Exclude


                                          10
 28) Order Denying Employee's Motion in Limine to Exclude New Safety Rule
    Violations
 29) Employer's Motion to Exclude Evidence Regarding Sympathy
 30) Employee's Response to Motion to Exclude Sympathy Evidence
 31) Order Granting Motion to Exclude Evidence Regarding Sympathy
 32) Employer's Motion to Exclude Evidence Regarding Mediation
 33) Employee's Response to Motion to Exclude Mediation
34) Order Granting Motion to Exclude Mediation
35) Employer's Motion for Clarification
36) Employee's Response to Motion for Clarification
37) Order Denying Motion for Clarification
38) Employer's Motion to Exclude the Middle Finger
39) Employee's Response to Motion to Exclude Middle Finger
40) Employer's Reply to Employee's Response to Employer's Motion to Exclude the
    Middle Finger
41) Order Denying Motion to Exclude Middle Finger
42) Employer's Renewed Motion to Exclude Dr. Chironna's Impairment Rating and
    Alternative Motion to compel Second IME and to Continue Trail
43) Employee's Response to Renewed Motion to Exclude Dr. Chironna's Impairment
    rating
44) Order Denying Renewed Motion to Exclude Dr. Chironna's Impairment rating
45) Employer's Motion to Quash Subpoena of Miguel Rodriguez
46) Employee's Response to Motion to Quash Subpoena of Miguel Rodriguez
47) Employer's Reply to Employee's Response to Employer's Motion for Clarification
    and Employer's Motion to Quash
48) Order Denying Motion to Quash Subpoena of Miguel Rodriguez
49) Employee's Motion for Rule 11 Sanctions
50) Employer's Response to Motion for Rule 11 Sanctions
51) Employee's Proposed Witness List
52) Employee's Proposed Exhibit List
53) Employee's Pre-Compensation Hearing Statement
54) Employer's Compensation Hearing Brief
55) Employer's Witness and Exhibit List
56) Petition for Benefits
57) Dispute Certification Notice




                                      11
                            CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the Compensation Hearing Order
was sent to the following recipients by the following methods of service on this the 15th
day ofMay, 2017.

Name                       Certified    Via        Via      Service sent to:
                            Mail        Fax      Email
Timothy Roberto,                                 X         troberto@brownandroberto.com
Employee's Counsel
Chris W. Sherman,                                X          cwshennan<mmijs.com
Employer's Attorney



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