                                                                                                FILED
                                                                                             May 21, 2019
                                                                                             03:12 PM(CT)
                                                                                          TENNESSEE COURT OF
                                                                                         WORKERS' COMPENSATION
                                                                                                CLAIMS




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

ERIC FOSTER,                                        )    Docket No. 2018-08-1318
          Employee,                                 )
v.                                                  )
JCS LOGISTICS, LLC,                                 )    State File No. 82938-2018
          Employer,                                 )
And                                                 )
TRAVELERS PROPERTY                                  )    Judge Deana Seymour
CASUALTY CO.,                                       )
          Carrier.                                  )


      EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS


       The Court conducted an Expedited Hearing on May 10, 2019, on Eric Foster’s
request for medical benefits following an alleged work-related assault. 1 The issue is
whether Mr. Foster is likely to establish entitlement to these benefits. For the reasons
below, the Court concludes that he is not.

                                          History of Claim

       Mr. Foster worked as a truck driver for JCS. He claimed his supervisor, Joey
Sichting, assaulted him at work on October 26, 2018, resulting in injuries to his neck,
back, and shoulder.

       According to Mr. Foster, he and Mr. Sichting had a heated argument about a work
issue in Mr. Sichting’s office. Afterward, Mr. Foster went to the office of JCS’s Director
of Transportation, Cassandra Fryer. While Mr. Foster stood at Ms. Fryer’s desk, Mr.
Sichting allegedly struck his back and shoulder. Police were called to the scene. 2


1
  The Dispute Certification Notice also listed temporary disability benefits as a disputed issue. However,
at the hearing, Mr. Foster only requested a panel of physicians and payment of his unauthorized medical
treatment.
2
  Both Mr. Foster and Ms. Fryer testified that they called the police.
                                                    1
       The police arrived and prepared a report, which indicated that Mr. Sichting hit Mr.
Foster on his left shoulder three times. However, Mr. Foster’s affidavit stated that Mr.
Sichting hit him on the back with his phone. During the hearing, Mr. Foster testified Mr.
Sichting struck him three times, but he did not mention a phone.

       JCS relied on the testimony of Mr. Sichting and Ms. Fryer to challenge Mr.
Foster’s version of events. Mr. Sichting indicated he simply tapped Mr. Foster on the
shoulder once and told him to “be safe.” Ms. Fryer also witnessed the exchange and saw
Mr. Sichting give Mr. Foster a “slight tap” on the shoulder.

       JCS additionally relied on the affidavit testimony of Mark Laine, who witnessed
Mr. Foster unload his belongings from the truck after Mr. Foster’s termination
immediately following the alleged assault. 3 Mr. Laine testified that he did not observe
Mr. Foster having any difficulty climbing in and out of the truck while unloading it or
carrying his possessions to his vehicle.

       The day after the alleged assault, Mr. Foster went to the emergency room. He
complained of right shoulder and upper back pain from being hit in the back at work the
day before. He was diagnosed with a thoracic myofascial strain. However, his physical
examination revealed no swelling, and right-shoulder x-rays showed degenerative
changes but no acute findings. Mr. Foster’s medical provider did not restrict his activities
but told him to follow up with his primary care physician. Mr. Foster never pursued
additional treatment.

                           Findings of Fact and Conclusions of Law

       At an Expedited Hearing, Mr. Foster must provide sufficient evidence from which
the Court can determine he is likely to prevail at a hearing on the merits. McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015). Specifically, resolution of the present issue turns on whether Mr. Foster
suffered a work-related injury.

        Here, the parties’ versions of events differ drastically, and witness credibility plays
a critical role. When evaluating witness credibility, the trial court must consider whether
a witness is “calm or agitated, at ease or nervous, self-assured or hesitant, steady or
stammering, confident or defensive, forthcoming or deceitful, reasonable or
argumentative, honest or biased.” Kelly v. Kelly, 445 S.W.3d 685, 694-95 (Tenn. 2014).

        The record reveals inconsistencies in Mr. Foster’s story. The police report said that


3
 Mr. Sichting testified that he terminated Mr. Foster after the exchange because Mr. Foster “flipped out”
when Mr. Sichting touched him and became hostile and aggressive.
                                                   2
Mr. Sichting struck him on his left shoulder. However, when he presented to the
emergency room the next day, the medical records stated he complained of right shoulder
pain. Physical examination of his right shoulder showed no swelling, and his x-rays
indicated no acute findings. Rather, the records indicated a thoracic strain and contained
no medical opinion on causation of that strain. Moreover, Mr. Laine’s affidavit suggested
that Mr. Foster had no problem climbing in and out of the truck while unloading it or
carrying his belongings to his vehicle immediately after the alleged assault.

       Further, Mr. Foster’s own testimony varied. His affidavit stated that Mr. Sichting
struck him with a phone. However, during the hearing, he did not mention a phone.
Instead, he testified that Mr. Sichting hit him three times with his right hand.

       The Court observed the witnesses’ testimony. Mr. Foster was hesitant in recalling
specific details of the October 26 events, and he appeared defensive and argumentative
during cross examination. In contrast, the Court finds that Mr. Sichting and Ms. Fryer
provided credible testimony. Mr. Sichting confidently and calmly described simply
tapping Mr. Foster on the shoulder once and telling him to “be safe.” Likewise, Ms. Fryer
appeared self-assured as she described the “slight tap” she witnessed.

       In sum, the Court finds Mr. Foster not credible and holds he is not likely to prevail
at a hearing on the merits.

       IT IS, THEREFORE, ORDERED as follows:

       1.     Mr. Foster’s request for medical benefits is denied at this time.

       2.   This matter is set for a telephonic Status Hearing on July 15, 2019, at 9:00
a.m. Central Time. You must call toll-free at 866-943-0014 to participate in the
hearing.

       ENTERED May 21, 2019.



                                   ____________________________________
                                   Judge Deana C. Seymour
                                   Court of Workers’ Compensation Claims




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                                      APPENDIX

Technical record:

TR1.   Petition for Benefit Determination
TR2.   Dispute Certification Notice
TR3.   Request for Expedited Hearing, with Mr. Foster’s affidavit
TR4.   Employee’s Exhibit List, with attachments
TR5.   Employee’s Witness List
TR6.   Employer/Carrier’s Expedited Hearing Pre-Trial Brief
TR7.   Employer’s Exhibit List with attachments
TR8.   Employer’s Witness List
TR9.   Employee’s Motions in Limine

Exhibits:

1.     Petition for Benefit Determination
2.     Correspondence dated June 5, 2017, regarding behavior on the job
3.     Correspondence dated October 26, 2018, regarding pay change
4.     Mr. Foster’s medical records (Collective)
5.     Mr. Foster’s medical bills (Collective)
6.     Police Report
7.     Request for Expedited Hearing, along with Mr. Foster’s affidavit
8.     Affidavit of Andrew Wener
9.     Facebook post (ID only)
10.    Two photographs of Ms. Fryer’s office (Collective)
11.    Affidavit of Mark Laine
12.    Separation Notice
13.    Affidavit of Complaint
14.    Work release note dated October 27, 2018
15.    Ms. Fryer’s written statement
16.    Email from Claudia Sichting to Bureau mediator Danny Brandon




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                          CERTIFICATE OF SERVICE

      I certify that a copy of this Order was sent to the following parties by these
methods on May 21, 2019.

Name                      Certified Via       Via     Service sent to:
                          Mail      Fax       Email
Andrew Wener,                                   X     awener@wenerlawfirm.com
Employee’s Attorney
Paul Nicks,                                    X      pnicks@travelers.com
Employer’s Attorney


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




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