                                                                                  FILED
                                                                                 Jan 15, 2020
                                                                                11:12 AM(CT)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




           TENNESSEE BUREAU OF WORKERS’ COMPENSATION
          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                           AT NASHVILLE

DENNY WOODARD,                              ) Docket No. 2018-06-2162
        Employee,                           )
                                            )
v.                                          ) State File No. 69647-2018
                                            )
FREEMAN EXPOSITIONS, LLC,                   )
        Employer.                           ) Judge Joshua D. Baker


                          EXPEDITED HEARING ORDER


       The Court held an expedited hearing on December 19, 2019, to consider whether
Mr. Woodard would likely prevail at a final hearing against Freeman Expositions’s
affirmative defenses of willful misconduct and illegal drug use. For the reasons below,
the Court finds Mr. Woodard is likely to prevail and grants him medical and temporary
disability benefits. The Court reserves the request for an attorney’s fee.

                                     Claim History

        Mr. Woodard worked intermittently as a stagehand for Freeman through his union,
the International Alliance of Theatrical Stage Employees (the Union). At center stage in
this dispute is a top-heavy cart loaded with four-by-eight sheets of Masonite, Freeman’s
admonition to “push, don’t pull” the cart, and a failed drug test.

       On September 11, 2018, Mr. Woodard’s lead, Josh Tafoya, asked him to wheel a
cart loaded with roughly fifteen sheets of Masonite, which is a material used by stage
hands to protect flooring during set-up and dismantling. The cart had a rectangular
bottom, four wheels, and a rail on its right side. Masonite sheets dwarfed the cart in both
height and width, making the cart unstable.

        Video of the accident showed Mr. Tafoya following closely behind Mr. Woodard
as he pushed the cart. In the video, Mr. Woodard struggled against the cart’s leftward
trajectory while Mr. Tafoya walked away to take a phone call. While attempting to avoid
obstacles by steering the cart to the right, the Masonite fell over on his left ankle and right
arm.

        Mr. Woodard received some authorized treatment from Dr. Samuel Crosby,
including surgery. Dr. Crosby diagnosed and treated arm and leg fractures, taking Mr.
Woodard off work until October 23, 2018. At a follow-up visit on that date, Dr. Crosby
felt that Mr. Woodard was doing well and transferred him to a short cast. He
recommended follow-up in four weeks for likely transfer into a walking boot. However,
Mr. Woodard received no further care.

        Freeman denied Mr. Woodard’s claim in mid-October after a drug test taken at the
hospital the day of the accident was positive for oxycodone and marijuana. Mr. Woodard
denied smoking marijuana on the day of the accident but admitted he smoked it at a
Union picnic days before the test. Concerning oxycodone, Mr. Woodard said he received
Percocet at the hospital to treat his pain, resulting in the positive test result. He
acknowledged a history using pain pills for a prior work injury but stated that in recent
years, due to fears of addiction, he had moved instead to CBD oil for pain treatment. Mr.
Woodard denied being intoxicated on the date of the accident, and three witnesses,
including Mr. Tafoya, testified in depositions that Mr. Woodard did not seem to be under
the influence of drugs that day.

       The same witnesses also testified about the cart and about Freeman’s “push, don’t
pull” rule. Timothy Harris, shop steward for the Union, testified frankly after viewing
the video, “It was the wrong material on the wrong cart.” When asked if he would agree
that Mr. Woodard would not have been injured if he had followed the rule, he responded,
“No, I don’t think that made a difference. The cart was dangerous. It would have turned
over no matter what he did.” He also expressed “wonder” that Mr. Woodard “got as far
as he did with [the cart] before it turned over.”

        Although Mr. Tafoya thought the cart safe to use, he called it “squirrely” and said
it can only safely be pushed, not pulled. Mike Clark, operations manager for Freeman,
testified that Freeman’s “push, don’t pull” rule applies to “everything we have with
wheels.” However, he acknowledged the Masonite was larger than the cart so moving it
required gripping the Masonite and not the cart or a cart handle. He also said he
“normally” pushed carts of Masonite by himself.

       Mr. Tafoya admitted taking a cell phone call just before Mr. Woodard’s accident.1
He said that when he took the call he “had to be close to that timeframe that I, you know,
told him to push [the cart] up there for me.” He also said that when he answered the call,


1
    Mr. Harris said that taking a cell phone call while working would violate the Union’s “Local 46 Policy.”


                                                      2
Mr. Woodard said “he got it” in reference to pushing the cart.2 Mr. Woodard denies this.

       Concerning notice and enforcement of the rule, signs in the Freeman warehouse
read, “SAFETY FIRST, PUSH don’t pull hand trucks.” Mr. Tafoya testified he warned
others to be careful with the cart that injured Mr. Woodard, instructing them to “push
don’t pull.” Further, Mr. Harris said he emphasized the rule in his speeches and corrected
workers every time he saw them pulling rather than pushing a cart. He also testified that
two people should have been moving the cart that injured Mr. Woodard. Mr. Woodard
received no formal discipline for his alleged violation of the rule and testified he has still
not been formally disciplined.

        Regarding Mr. Woodard’s earnings at Freeman, the parties filed a wage
statement. The statement showed that he earned $4,932.12 over the fifty-two weeks just
before the accident. In that time, Mr. Woodard received pay from Freeman during
fifteen, nonconsecutive weeks. In those weeks, his wages varied widely from a
maximum of $656.00 per week to a minimum of $82.00. The wage statement listed his
average weekly wage as $94.85 per week.

       When asked about the sporadic nature of his work schedule and pay, Mr. Woodard
said he worked “every time [the Union] called me,” but he was not called to work every
week. On this issue, Mr. Harris characterized Union work as part-time employment. Mr.
Tafoya agreed that Union workers have no control over how often they can work for
Freeman.

                        Findings of Fact and Conclusions of Law

      To prevail at an expedited hearing, Mr. Woodard must provide sufficient evidence
to show that he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-
6-239(d)(1) (2019). The Court finds he carried that burden.

        Mr. Woodard got hurt when a cart carrying Masonite fell over on his left ankle and
right arm while working for Freeman. He broke his ankle in the fall. The Court holds his
injury arose primarily out of and in the course and scope of employment.

       Freeman, however, contended Mr. Woodard’s injury was not compensable
because it resulted from illegal drug use and willful misconduct, specifically violation of
a safety rule. Workers’ Compensation Law provides that “no compensation shall be
allowed for an injury … due to [an] employee’s willful misconduct [or] … illegal drug


2
  Freeman also had a safety rule requiring two people to work as a team when moving “heavy
equipment.” The rule, however, did not define heavy equipment.


                                              3
use.” Tenn. Code Ann. § 50-6-110(a)(1) and (a)(3). As these are affirmative defenses,
Freeman has the burden of proving its defenses.

       To show Mr. Woodard engaged in willful misconduct by violating a safety rule,
Freeman must prove: (1) that Mr. Woodard had actual, as opposed to constructive, notice
of the rule; (2) that he understood the danger involved in violating the rule; (3) that
Freeman practiced bona fide enforcement of the rule; and (4) that Mr. Woodard lacked a
valid excuse for violating the rule. Mitchell v. Fayetteville Pub. Utilities, 368 S.W.3d
442, 452-53 (Tenn. 2012).

       In the Court’s view, Mr. Woodard did not violate the push, don’t-pull rule. The
video shows, and his testimony corroborated, that he pushed the Masonite forward and to
the right using his hands. The video does not show him pulling on a handle or pulling the
Masonite toward himself. The Court agrees with Mr. Harris’s testimony that the accident
happened because the wrong material was on the wrong cart not because of Mr.
Woodard’s actions.

       Furthermore, evidence that Freeman enforced the push, don’t-pull rule was scant.
While Mr. Tafoya said he warned people to be careful with this cart and Mr. Harris said
he emphasized the rule in his safety speeches and corrected violations whenever he saw
them, there was no evidence that Freeman disciplined anyone for breaking the rule. This
included Mr. Woodard. The Court concludes Freeman is not likely to prevail on
establishing a willful misconduct defense.

        Concerning Freeman’s illegal drug-use defense, Freeman acknowledged it is not
entitled to the presumption under Tenn. Code Ann. § 50-6-110(c) that the proximate
cause of this injury was illegal drugs. Without that presumption, Freeman must prove
Mr. Woodard’s drug use was the proximate cause of his injury.

        Without expert testimony interpreting and explaining Mr. Woodard’s drug test
results and how those drugs could have caused this accident, the Court accepts Mr.
Woodard’s testimony and the testimony of the three other witnesses that he was not
impaired. Thus, the affirmative defense of intoxication fails. Because both defenses
failed, the Court holds Mr. Woodard would likely succeed at a hearing on the merits in
proving compensability of his injuries and orders Freeman to provide treatment with Dr.
Crosby.

       Mr. Woodard also seeks temporary total disability benefits from his injury date to
October 23, 2018, a period of six weeks. To establish entitlement to temporary disability
benefits, Mr. Woodard must show a compensable injury disabled him from working, a
causal connection exists between his injury and inability to work, and the duration of his
disability. Jones v. Crencor, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11,
2015). Mr. Woodard met this burden as he will likely prevail at a hearing on the merits,

                                            4
and Dr. Crosby took him off work for six weeks because of the injury. The Court,
therefore, holds Freeman must pay him temporary total disability benefits for six weeks.

        Because temporary total disability benefits are owed, the Court must determine
Mr. Woodard’s compensation rate. Freeman argued that his recovery is limited to the
minimum compensation rate as he earned an average wage of $94.85 per week over the
fifty-two weeks before his injury. Mr. Woodard argued he should receive benefits at the
rate of $219.21 per week as he worked for Freeman only fifteen weeks over those fifty-
two weeks. The Court agrees with Mr. Woodard.

       The wage statement showed that Mr. Woodard worked an irregular schedule for
Freeman in the year before his accident. During that time, he worked only fifteen weeks
earning a total of $4,932.12. He had no control over when Freeman offered him work
and testified without contradiction that he worked whenever they called him. Based on
his testimony and the wage statement, the Court finds Mr. Woodard worked as a part-
time or intermittent employee for Freeman. The average weekly wage of a part-time
employee “should be determined by dividing the total actual wages of the 52-week period
by the number of weeks in which the employee received wages.” Russell v. Genesco,
651 S.W.2d 206, 208 (Tenn. 1983) (citing McKinney v. Feldspar Corp., 612 S.W.2d 157
(Tenn. 1981); Gaw v. Raymer, 553 S.W.2d 576 (Tenn. 1977)). This calculation results
in an average weekly wage of $328.81 and a compensation rate of $219.21. At this rate
for fifteen weeks, the Court holds Freeman must pay Mr. Woodard $3,288.15 in
temporary total disability benefits.

                                     Attorney’s Fees

       Mr. Woodard also requested attorney’s fees. Attorneys’ fees at an expedited
hearing should only be awarded in “extremely limited circumstances.” Thompson
v.Comcast Corporation (2018 TN Wrk. Comp. App. Bd. LEXIS 1), at *27. The best
practice is to award fees after litigation is concluded when the parties and the Court “no
longer face uncertainties over future developments.” Id. While Mr. Woodard is claiming
a wrongful denial, the Court’s view of whether that denial was wrongful could
conceivably change if Freeman produced expert testimony concerning the proximate
cause of this injury. The Court, therefore, reserves the request for an attorney’s fees.

   It is ORDERED as follows:

   1. Freeman shall provide Mr. Woodard reasonable, necessary, and related medical
      treatment with Dr. Crosby.

   2. Freeman shall pay Mr. Woodard $3,288.15 in temporary total disability benefits.



                                            5
  3. Mr. Woodard’s request for attorney’s fees is held in abeyance pending a
     Compensation Hearing.


  4. Absent an appeal to the Appeal’s Board, Freeman shall comply with this order
     within seven business days.

  5. This matter is set for a status conference on Monday, March 30, 2020, at 9:00
     a.m. (CDT). You must call 615-741-2113 to participate in the Hearing.
     Failure to call may result in a determination of issues without your further
     participation

ENTERED JANUARY 15, 2020.

                                     _____________________________________
                                     Joshua Davis Baker, Judge
                                     Court of Workers’ Compensation Claims




                                       6
                                      APPENDIX

Exhibits:

   1. Medical Records
   2. Mr. Woodard’s Affidavit
   3. First Report of Injury
   4. Wage Statement
   5. Mr. Harris’s Deposition Transcript
   6. Mr. Tafoya’s Deposition Transcript
   7. Mr. Clark’s Deposition Transcript
   8. Video No. 1
   9. Video No. 2
   10. Defense Counsel Letter—October 10, 2018
   11. Defense Counsel Letter—October 18, 2018
   12. Settlement Agreement from 2008 Injury
   13. Photographs
   14. Union Labor Agreement
   15. Mr. Woodard’s Interrogatory Responses
   16. Freeman’s Interrogatory Responses
   17. Drug Test Results
   18. Excerpts from Mr. Woodard’s Deposition

Technical Record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Request for Expedited Hearing
   4.   Request for Admissions Responses




                                             7
                           CERTIFICATE OF SERVICE

     I certify that a copy of this Order was sent as indicated on January 15, 2020.

Name                     Certified Via Via           Service sent to:
                         Mail      Fax Email
Denty Cheatham,             X            X           Cheatham, Palermo, & Garrett
Employee’s Attorney                                  43 Music Square West
                                                     Nashville, TN 37203
                                                     dcheatham.cpg@gmail.com
Daniel Todd,                                   X     dan@dantoddlaw.com
Employer’s Attorney




                                 _____________________________________
                                 Penny Shrum, Clerk
                                 Court of Workers’ Compensation Claims
                                 WC.CourtClerk@tn.gov




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