              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT KNOXVILLE

Kathy Hamilton,                                                 Docket No.: 2015-03-0156
           Employee,
v.                                                              State File No.: 13067-2015
Kenco Logistics Services, LLC,
            Employer,                                           Judge: Pamela B. Johnson

American Zurich Insurance Company,
            Insurance Carrier,
and
Genco Distribution Systems,
            Employer,

Liberty Mutual Insurance Company,
           Insurance Carrier.


                             COMPENSATION HEARING ORDER


        This matter came before the undersigned Workers' Compensation Judge on
November 10, 2015, for a Compensation Hearing, pursuant to Tennessee Code Annotated
section 50-6-239 (2014). Upon agreement of the parties and as set forth in the Agreed
Initial Hearing (Scheduling) Order, the Court bifurcated this cause and agreed to
adjudicate the issue of compensability separately and prior to the adjudication of the issue
of compensation. Accordingly, the central legal issue is whether Ms. Hamilton sustained
a compensable injury arising primarily out of and in the course and scope of her
employment with Ken co Logistic Services, LLC (Kenco ), or Genco Distribution Services
(Genco). 1 For the reasons set forth below, the Court finds that Ms. Hamilton failed to
establish by a preponderance of the evidence that she sustained a compensable injury
primarily arising out of and in the course and scope of her employment with Kenco or
Genco.



1
  A complete listing of the technical record, stipulations, and exhibits admitted at the Compensation Hearing is
attached to this Order as an appendix.

                                                       1
                                   History of Claim

        Ms. Hamilton is a fifty-eight-year-old resident of Knox County, Tennessee. Ms.
Hamilton worked for Kenco at the GSK warehouse from 2007 through January 30, 2015.
Ms. Hamilton worked in the cooler, picking cold product for packaging and shipping.
Her job required her to pick product, pack the product into a box, and send the box down
the line. She also picked freight, usually with the assistance of a helper. Ms. Hamilton
testified that she did not lift anything heavy by herself but used common sense and her
own judgment to determine whether she required assistance to lift freight or any other
product.

       GSK placed six of its warehouse locations up for bid, including the Knoxville area
warehouse. As a result of the bid, Kenco lost its contract to operate the six GSK
warehouses. GSK awarded Genco the contract to take over operations at the GSK
warehouses on or about April 1, 2015. In preparation for the transition from Kenco to
Genco, representatives of Genco, Kenco, and GSK jointly announced that GSK awarded
the contract to Genco, which agreed to extend offers of employment to all Kenco
employees contingent upon the employee receiving a clear criminal background check,
passing a drug screen, completing a "Fit for Duty" pre-employment physical, and
maintaining employment with Kenco until the transition date. No business relationship
existed between Kenco and Genco.

       In the fall of 2014, Ms. Hamilton learned GSK awarded Genco the contract to
operate the GSK warehouse. She testified she took steps necessary to allow her to
continue working at the GSK warehouse because she wanted to keep her job, she needed
her job, and enjoyed her work. She took and passed the drug screen.

        On Friday, January 30, 2015, Ms. Hamilton began the pre-employment, "Fit for
Duty" physical examination. She scheduled the pre-employment physical exam on a day
she was scheduled off from work at Kenco. During the pre-employment physical, she
injured her back when she lifted a fifty-pound weight as part of the exam. She testified
she felt and heard her back pop. After she hurt her back, she was unable to continue the
exam.

       The pre-employment, "Fit for Duty" physical exam took place at Nova, an off-site
medical facility. Genco paid Nova to administer the physical exam. Neither Kenco nor
Genco operated the medical facility or administered the exam. No representatives of
Kenco or Genco were present at the time of the exam. Ms. Hamilton was not "clocked-
in" or working for Ken co or Genco at the time of the exam. She was not performing any
job duties for Genco or Kenco at the time of the exam. She did not receive a paycheck
from Kenco or Genco for her participation in the exam.

      Ms. Hamilton testified that Genco had not hired her at the time she participated in

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the pre-employment, "Fit for Duty" physical exam. She further admitted that Genco
never hired her. She signed a "Physical Performance Evaluation Consent, Waiver &
Release Form," wherein she acknowledged, "No person or entity has coerced or forced
me to take the PPE and my decision to participate is made voluntarily." (Ex. 2.) She
chose to apply with Genco, but admitted she could have sought employment elsewhere.

        On the date of the exam, Ms. Hamilton sought medical care from her primary care
physician, Dr. Robert E. Wilson at Halls Walk-In Clinic. She required follow-up care
from Dr. Wilson on the following Monday, who referred her to an orthopedic specialist.
She subsequently came under the care of Dr. James K. Maguire, Jr., who diagnosed her
with a superior endplate compression fracture at L 1 and degenerative disc disease. She
received conservative treatment, including physical therapy. She also received long-term
disability benefits, and Blue Cross Blue Shield paid some of her medical expenses for her
back treatment.

       Ms. Hamilton received a $50.00 gift card from Brenda Hurst, an "admin person"
or receptionist, who worked at the GSK warehouse. Ms. Hurst presented the gift card to
Ms. Hamilton at or near the time of her mother's funeral. She also received a love
offering from her fellow employees.

        At the Compensation Hearing, Denise Stewart, a Genco representative, testified
that Genco did not pay the applicants to take the exam. However, because the exam took
three to four hours to complete and the applicants were "clocked-out," Genco offered the
applicants a coupon. If the applicants completed the hiring process and became Genco
employees, then the employees could trade in their coupon for a $50.00 gift card. Ms.
Stewart testified that the gift card was a gratuity, a "perk," and not required to be paid.

       Ms. Stewart further testified that Ms. Hamilton did not qualify for the gift card.
Ms. Hamilton received the gift card from an administrative person, not from anyone in
management at Genco. Ms. Stewart assumed Ms. Hurst gave Ms. Hamilton the gift card
as a bereavement offering.

       Ms. Hamilton filed a Petition for Benefit Determination on April 29, 2015,
seeking temporary disability and medical benefits for the current injury. The parties did
not resolve the disputed issues through mediation, and the Mediating Specialist filed a
Dispute Certification Notice on June 5, 2015. Ms. Hamilton filed a Request for Initial
Hearing on August 3, 2015, and this Court entered an Agreed Initial Hearing Order on
September 9, 2015. As set forth in the Agreed Initial Hearing Order, the Court bifurcated
this cause and agreed to adjudicate the issue of compensability separately and prior to the
adjudication of the issue of compensation. This Court conducted the Compensation
Hearing on the issue of compensability on November 10, 2015.

      At the Compensation Hearing, Ms. Hamilton argued that she worked for Kenco

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for eight years and wanted to continue her job the GSK warehouse for Genco. To
continue her employment and keep her job, the exam was mandatory. If she passed the
pre-employment, "Fit for Duty" physical exam, Genco would have hired her. But for the
injury during the exam, Genco would have employed her.

        Genco argued that it was not a continuation of employment. Ms. Hamilton was an
applicant with a new company. She did not have to apply. The injury did not arise out of
or occur in the course and scope of her employment with Genco. Ms. Hamilton did not
establish the time and place element as the incident occurred at Nova, a separate facility
unassociated with Genco. Ms. Hamilton also did not meet the "arise out of' element, as
she was not performing any job function for Genco when the incident occurred. She was
a voluntary participant in an application process. The gift card received by Ms. Hamilton
was a gratuitous gift, a love offering, or bereavement gift.

       Kenco argued that Ms. Hamilton was not working for Kenco when the injury
occurred. She also was not on Kenco premises. As a result, she cannot prove that the
injury primarily arose out of and occurred in the course and scope of her employment.

       Several days following the Compensation Hearing, Ms. Hamilton submitted Late-
Filed Exhibit 3, without leave of Court. Genco objected to the introduction of Late-Filed
Exhibit 3 on grounds of lack of foundation, hearsay, and no opportunity to examine the
document or question the witnesses concerning the same. The Court sustains Genco's
objection and marks Late-Filed Exhibit 3 for Identification Purposes Only.

                              Findings of Fact and Conclusions of Law

       The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987); 2 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). For an injury to be compensable, it must arise
primarily out of and in the course and scope of employment and be identifiable by time
and place of occurrence. Tenn. Code Ann. § 50-6-102(13)(A) (2014). "[A]t a
compensation hearing where the injured employee has arrived at a trial on the merits, the

2
 The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July I, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

                                                          4
employee must establish by a preponderance of the evidence that he or she is, in fact,
entitled to the requested benefits." Willis v. All Staff, No. 2014-05-0005, 2015 TN Wrk.
Comp. App. Bd. LEXIS 42, *18 (Tenn. Workers' Comp. App. Bd. Nov. 9, 2015). See
also Tenn. Code Ann. § 50-6-239(c)(6) (2014) ("[T]he employee shall bear the burden of
proving each and every element of the claim by a preponderance of the evidence.").

        Genco and Kenco rely on the case of Blankenship v. Am. Ordnance Sys., LLC, 164
S. W.3d 350 (Tenn. 2005). In Blankenship, the employee injured her back while taking
an upper body strength test on the employer's premises. The employee, who was laid off
at the time of the injury, voluntarily took the strength test as part of the application
process for new jobs being created in the employer's factory. The trial court found that
the employee's injury was not compensable because it did not arise out of her
employment. The employee's appeal was transferred to the full Supreme Court prior to
the Special Workers' Compensation Appeals Panel hearing oral argument. The
dispositive question before the full Supreme Court was whether the evidence
preponderated against the trial court's finding that the employee's injury did not arise out
of her employment.

       The employer in Blankenship argued that the employee's injury did not arise out
of and occur in the course of her employment because she voluntarily participated in the
strength test and received no compensation. !d. at 354. The employer also argued that
the employee's job, from which she was laid off and to which she was later called back,
did not have lifting requirements. !d. The employer further asserted that the strength test
was not a condition of the employee's continued employment or return to work. !d.

       The employee in Blankenship responded that her injury should be compensable
because the employer paid for the strength test, scheduled and conducted the test on the
employer's premises, and the test was available only to employees, not the general
public. !d. Thus, the employee contended that her participation in the test provided a
benefit to the employer by identifying a group of persons physically capable of
performing the new jobs at the plant. !d.

       In Blankenship, the Supreme Court, like the trial court, concluded that the
employee's back injury did not arise out of her employment because the record failed to
establish a causal connection between the conditions of the employee's job and her back
injury. !d. at 355. In reaching this conclusion, the Court held:

      The employee's injury did not result from a danger or hazard peculiar to her
      work or was not caused by a risk inherent in the nature of her work.
      Evidence that the employer paid for the strength test and administered it on
      its premises does not trump the fact that the injury did not occur while the
      employee was performing her job making bullets or a task incidental
      thereto. Rather than resulting from a danger or hazard peculiar to her work

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       or being caused by a risk inherent in the nature of her work, the employee
       was injured while undertaking a voluntary test- for which she was not
       compensated - as part of the application process for a job she did not have
       and may not have gotten even if she passed the test. In short, this case falls
       within the rule that an injury which is merely coincidental,
       contemporaneous, or collateral with the employment is not compensable.

!d. (internal citations omitted).

       The Supreme Court in Blankenship similarly concluded that the employee's back
injury did not occur in the course of her employment. !d. In reaching its conclusion, the
Supreme Court noted:

       The record demonstrates that taking the strength test was strictly voluntary.
       As stated by the trial court, there was "no element of compulsion" on the
       employer's part. The posted notice directed employees interested in the
       new positions to contact human resources. The notice did not require
       employees to take the test or otherwise apply for the new jobs. Moreover,
       the record is unrefuted that the strength test was not a condition of the
       employee's continued employment or being called back to work. Further,
       the employee was not paid to take the test, and her current job did not have
       lifting requirements. The test was merely for the purpose of determining if
       employees interested in being considered for the new jobs met the physical
       qualifications for those positions. While it is true that the employee's
       participation in the test benefitted the employer by helping it identify
       persons physically capable of performing the new jobs, it is equally true
       that the injury did not occur while the employee was performing a duty that
       she was employed or required to perform or engaged in a task incidental
       thereto. Accordingly, the trial court correctly declined to award benefits.

!d.

      Here, like in Blankenship, at the time the injury occurred, Ms. Hamilton was not
"clocked-in" or working for Kenco or Genco. She was not performing any job duties for
Genco or Ken co at the time of the exam and did not receive a paycheck from Ken co or
Genco for her participation. The injury did not result from a danger or hazard peculiar to
her work or caused by a risk inherent in the nature of her work. This Court finds that Ms.
Hamilton's injury did not primarily arise out of her employment with Kenco or Genco.

       Likewise, Ms. Hamilton chose to apply for employment with Genco, which
required her to complete a pre-employment, "Fit for Duty" physical examination. Ms.
Hamilton acknowledged, "No person or entity has coerced or forced me to take the PPE
and my decision to participate in the PPE is made voluntarily." (Ex. 2). The pre-

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employment, "Fit for Duty" physical exam took place at Nova, an off-site medical
facility. Genco paid Nova to administer the physical exams. Neither Kenco nor Genco
operated the medical facility or administered the exam. No representatives of Kenco or
Genco were present at the time of the exam. This Court finds that Ms. Hamilton's injury
did not occur in the course or scope of her employment with Kenco or Genco.

       Accordingly, this Court concludes that Ms. Hamilton failed to establish by a
preponderance of the evidence that she sustained a compensable injury primarily arising
out of and in the course and scope of her employment with Kenco or Genco.

     IT IS, THEREFORE, ORDERED that Ms. Hamilton's cause of action against
Kenco Logistics Services, LLC, Genco Distribution Systems, and their workers'
compensation carriers is hereby dismissed with full prejudice against refiling the same.

      Court costs are taxed equally against each employer's carrier pursuant to Rule


                                                            Y
0800-02-21-.07 (2015) of the Tennessee Compilation Rules and Regulations.

      ENTERED this the 16th day of December,          ~
                                       rJB~_j{LJ,J
                                                 HON. PAMELA B. JOHNSON
                                                 Workers' Compensation Judge

Right t Appeal:

       Tennessee Law allows any party who disagrees with this Compensation 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: "Compensation Hearing Notice of Appeal."

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

   3. Serve a copy of the Compensation 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 of Indigency, on
      a form prescribed by the Bureau, seeking a waiver of the filing fee. The Affidavit of
      lndigency may be filed contemporaneously with the Notice of Appeal or must be filed
                                             7
   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 lndigency in accordance with this section shall result in dismissal of the
   appeal.

5. The party filing the notice of appeal, 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 fifteen calendar days of the filing of the
   Expedited Hearing Notice of Appeal. Alternatively, the party filing the appeal may
   file a joint statement of the evidence within fifteen calendar days of the filing of the
   Compensation 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 ofthe Appeals Board. See Tenn. Comp. R.
   & Regs. 0800-02-22-.03 (2015).

6. After the Workers' Compensation Judge approves the record and the Court Clerk
   transmits it to the Workers' Compensation Appeals Board, the appeal will be
   docketed and assigned to an Appeals Board Judge for review. At that time, a
   docketing notice shall be sent to the parties. Thereafter, the party who filed the notice
   of appeal shall have fifteen calendar days after the issuance of the docketing notice to
   submit a brief to the Appeals Board for consideration. Any opposing party shall have
   fifteen calendar days after the filing of the appellant's brief to file a brief in response.
   No reply briefs shall be filed. Briefs shall comply with the Practice and Procedure
   Guidelines of the Workers' Compensation Appeals Board. See Tenn. Comp. R. &
   Regs. 0800-02-22-.03(6) (2015).




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                                     APPENDIX

Technical record:
   • Petition for Benefit Determination, filed April29, 2015;
   • Dispute Certification Notice, filed June 5, 2015;
   • Request for Initial Hearing, filed August 3, 20 15;
   • Agreed Initial Hearing Order, entered September 9, 2015;
   • Genco Distribution Systems' Pre-Compensation Hearing Statement, filed
      November 2, 2015;
   • Kenco Logistics Services, LLC's Initial Hearing Brief, filed November 3, 2015;
   • Ms. Hamilton's Pre-Compensation Hearing Statement, filed November 4, 2015;
      and
   • Kenco Logistics Services, LLC's Pre-Compensation Hearing Statement, filed
      November 6, 20 15.

The Court did not consider attachments to Technical Record filings unless admitted into
evidence during the Expedited Hearing. The Court considered factual statements in these
filings or any attachments to them as allegations unless established by the evidence.

Stipulated Findings of Facts of the Parties:
    • Ms. Hamilton's date of injury is January 30,2015.
    • Ms. Hamilton gave notice of the alleged injury to Kenco Logistics Services, LLC.
    • Ms. Hamilton is fifty-eight years old, and presently lives in Knox County,
       Tennessee.
   • Ms. Hamilton completed the twelfth grade and obtained a high school diploma.
   • Subsequent to high school, Ms. Hamilton obtained a dental assistant certificate
       and Tennessee real estate license.
   • Both employers denied Ms. Hamilton's workers' compensation claim.
   • Neither employer authorized medical treatment or paid medical expenses to or on
       behalf of Ms. Hamilton.
   • Neither employer paid temporary disability benefits to Ms. Hamilton.
   • Ms. Hamilton has not returned to work since the date of the alleged injury.
   • Ms. Hamilton has not reached maximum medical improvement.
   • Ms. Hamilton's average weekly wage while working for Kenco Logistics
       Services, LLC, was $729.25, which resulted in a compensation rate of$486.50.
   • Ms. Hamilton did not earn an income from Genco Distribution Systems.
   • The parties stipulated to the admissibility of Tennessee Orthopedic Clinic records,
       numbered pages 1-1 7.
   • On the date of Ms. Hamilton's alleged injury, she presented for a pre-employment
      physical for Genco Distribution Systems.
   • Genco was not associated with Ken co Logistics Services, LLC in any way.

                                           9
   •   Ms. Hamilton was not compensated by Kenco Logistics Services, LLC at the time
       she completed the pre-employment physical for Genco Distribution Systems.
   •   The medical facility where Ms. Hamilton completed the pre-employment physical,
       and where the alleged injury occurred, was off the premises of Kenco Logistics
       Services, LLC.
   •   Genco Distribution Systems informed Ms. Hamilton that a pre-employment
       physical was a pre-requisite to employment by Genco Distribution Systems.
   •   The pre-employment physical did not further the business of Kenco Logistics
       Services, LLC, and Ms. Hamilton was not performing work for Kenco Logistics
       Services, LLC, when the alleged injury occurred.

Stipulated Conclusions of Law of the Partie :
    • This claim is governed by the Workers' Compensation Law for the State of
       Tennessee.
    • Ms. Hamilton provided proper, statutory notice of the alleged injury to Kenco
       Logistics Services, LLC.
   • Ms. Hamilton filed her Petition for Benefit Determination within the applicable
       statute of limitations.

Exhibits:
   • EXHIBIT 1: Medical Records ofTennessee Orthopedic Clinic (17 pages); and
   • EXHIBIT 2: Physical Performance Evaluation Consent, Waiver, and Release
      Form.

Exhibits Marked for Identification Purposes Only:
   • EXHIBIT 3 (Late-Filed): Genco's Spending Accounts - Profile for Kathy
      Hamilton.




                                         10
                            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 16th
day ofDecember, 2015.

Name                        Certified   Via     Via      Service sent to:
                            Mail        Fax     Email
Glen B. Rutherford, Esq.                        X        grutherford@lmoxlawyers.com
                                                         nshort@.knoxlawyers.corn
D. Brett Burrow, Esq.                           X        bburrow@ bkblaw.com

Owen Lipscomb, Esq.                             X        owen.lillscomb@Jibertvmutual.
                                                         com




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




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