                                                                                  FILED
                                                                               l\lardl. 28,   2~Hl 7

                                                                                 TN COUKI'OF
                                                                          1\'0RJITRS' C01JFE S.A.TION
                                                                                    C1 ..illiS

                                                                                 Timel ·38PM

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

Micheal Rogers,                              )   Docket No. 2016-06-1513
           Employee,                         )
v.                                           )   State File No. 68057-2015
Charles C. Parks Company, Inc.,              )
            Employer,                        )   Judge Kenneth M. Switzer
And                                          )
Accident Fund General Ins. Co.,              )
            Carrier.                         )


      EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS


        This case came before the undersigned Workers' Compensation Judge on March
24, 2017, on Mr. Rogers' Request for Expedited Hearing. The present focus of this case
is whether Mr. Rogers engaged in willful misconduct. For the reasons set forth below,
the Court holds that Charles C. Parks Company, Inc. failed to prove its willful
misconduct affirmative defense, and Mr. Rogers is entitled to medical care with the
physicians he chose from panels Parks previously offered. However, Mr. Rogers is not
entitled to reimbursement for past medical expenses at this time.

                                    History of Claim

        Mr. Rogers worked at Parks, a grocery distributor, as a "lead man." He explained
that his job duties generally entailed reading orders and then obtaining product within the
warehouse to fulfill the orders. He operated a "cherry-picker" to reach product stored on
racks, standing on the cherry-picker platform, which was then raised or lowered.

       Mr. Rogers alleged that on August 26, 2015, he became injured at work.
Specifically, he testified that he was "pulling orders" and simultaneously training a new
hire. He stated, "I was constantly running," and he "was forced to do a two-man job" on
the date of injury. While he stood atop the cherry-picker platform raised off the floor
approximately ten to twelve feet, the machine "jumped," started shaking, and, "The
machine knocked me off balance." Mr. Rogers feared he would fall offthe platform and

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possibly land on his head; therefore, he jumped so that he could land on his feet instead.
Mr. Rogers acknowledged that he was not wearing a safety harness at the time of the
accident, and that, were he wearing it, he would not have sustained injury. He explained,
however, that he had no time to wear the harness because, "I was just trying to get the job
done."

        The incident injured Mr. Rogers' left heel and lower back. He sought emergency
treatment for these injuries at Sumner Regional Medical Center. Mr. Rogers testified that
he incurred and paid expenses for treatment and at this time he only seeks an order that
Parks reimburse him for these expenses. 1 He moved into evidence several documents to
substantiate his claim regarding the past expenses. However, the Court admitted them for
identification only, reasoning that the purported bills did not offer sufficient information
regarding the services rendered and whether they stem from the work injury, nor did they
adequately indicate whether Mr. Rogers actually paid the sums listed as owing.

      Parks initially offered panels of specialists, and Mr. Rogers chose Dr. James Fish
and Dr. Roger Passmore. Parks then denied the claim on September 4, before Mr. Rogers
had an opportunity to see the physicians.

       Parks does not contest that the accident occurred as Mr. Rogers described or that it
caused his injuries, but rather argues that he engaged in willful misconduct and/or failed
to use a safety device. Mr. Rogers testified that Parks never conducted safety meetings.
According to him, supervisors had approached him on past occasions telling him he
"needed to wear a belt," and that twice a supervisor told him he would be suspended for
three days if he failed to put on his harness. He stated the supervisors gave similar
warnings to co-workers. He maintained, nonetheless, that he and others, including
supervisors, did no~ wear a harness at all times. He additionally stated that there were
times when the harnesses were gone altogether and no one wore them while working.

       Mr. Rogers stated he suffered a previous on-the-job injury in August 2013. Upon
his return from three days' absence after the previous injury, he signed a form that Parks
characterized as discipline for a rules infraction.           The form, entitled, "Safety
Procedures/Guidelines," states, "I have received and read the safety/procedure guideline.
I understand if I do not comply with the company rules and regulations the following
disciplanary [sic] action will be inforced. 1. First offense - verbal/written warning (Sent
home-no pay) 2. Termination." (Ex. 12.) Mr. Rogers testified he signed the document
simply to enable his return to work. He stated he did not understand he was being
written-up.



1
 Mr. Rogers' entitlement to temporary disability benefits is checked as an issue on the Dispute
Certification Notice, but he made no arguments to advance that aspect of his claim at the Expedited
Hearing. The Court considers them waived for now.

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                       Findings of Fact and Conclusions of Law

       In order to grant or deny the relief Mr. Rogers seeks, the Court must apply the
following general principles. As in all workers' compensation actions, Mr. Rogers, as the
claimant, has the burden of proof on the essential elements of his claim. Scott v. Integrity
Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015).
However, since this is an expedited hearing, he only has to come forward with sufficient
evidence from which the Court can determine he is likely to prevail at a hearing on the
merits in order to meet his burden. McCord v. Advantage Human Resourcing, 2015 TN
Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

       The central legal issue in this case revolves around Mr. Rogers' alleged willful
misconduct. Tennessee Code Annotated section 50-6-llO(a) (2016) 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 ). If an employer defends on the grounds that the injury arose from
willful misconduct or from the willful failure or refusal to use a safety device, the burden
of proof is on the employer to establish the defense. !d. at *19; Tenn. Code Ann. § 50-6-
llO(b) (2016). 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." !d. at *21.

        Applying these legal principles to the facts of this case, Mr. Rogers testified that
Parks has a rule mandating that employees wear a safety harness when using the cherry-
picker, so that the Court finds he had actual notice of the rule. Mr. Rogers additionally
testified that if he had worn the harness on the date of injury, he would not have become
injured. Thus, he understood the danger involved in violating the rule. It is the third
element, the employer's bona fide enforcement of the rule, where Parks' defense fails.
Mr. Rogers testified without contradiction that he and others, including supervisors,
sometimes failed to wear the harness without repercussions. As to the August 2013 form
that Parks asserted documents its previous disciplinary action against Mr. Rogers, it does
not convey any particulars regarding a rules violation on Mr. Rogers' part, but rather
explains consequences for a violation going forward. In sum, Parks has not satisfied its
burden, and its affirmative defense fails at this time.

       Therefore, as a matter of law, Mr. Rogers has come forward with sufficient
evidence from which this Court concludes that he is likely to prevail at a hearing on the
merits regarding the compensability of his claim. His request for medical benefits is
granted, and Parks must authorize office visits with Drs. Fish and Passmore to evaluate
and potentially treat his low-back and foot injuries. As for his request regarding past

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medical treatment, because Mr. Rogers failed to provide sufficient foundation to admit
his expenses into evidence, the Court cannot order at this time that Parks reimburse him.
This order does not prevent Mr. Rogers from obtaining additional documentation
regarding past out-of-pocket medical expenses and seeking an order for reimbursement at
a later date.

IT IS, THEREFORE, ORDERED as follows:

   1. Parks or its workers' compensation carrier shall provide Mr. Rogers with medical
      treatment to be initiated by Parks or its workers' compensation carrier authorizing
      office visits with Drs. Fish and Passmore to evaluate and potentially treat his low-
      back and foot injuries. Mr. Rogers or the medical providers shall furnish medical
      bills to Parks or its workers' compensation carrier for prompt payment.

   2. This matter is set for a Scheduling Hearing on May 22, 2017, at 8:45 a.m.
      Central. You must call615-532-9552 or toll-free at 866-943-0025 to participate in
      the Hearing. Failure to call may result in a determination of the issues without
      your further participation.

   3. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
      with this Order must occur no later than seven business days from the date of entry
      of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)
      (2016). The Insurer or Self-Insured Employer must submit confirmation of
      compliance      with    this     Order    to    the   Bureau     by     email    to
      WCCompliance.Program@tn.gov no later than the seventh business day after
      entry of this Order. Failure to submit the necessary confirmation within the period
      of compliance may result in a penalty assessment for non-compliance. For
      questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
      253-1471 or (615) 532-1309.

                                  ENTERED this the 28th day of March, 2017.



                                     ge Kenneth M. S itzer
                                  Court of Workers' Compensatio




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                                   APPENDIX

Exhibits:

   1. Affidavit
   2. Medical records, Sumner Regional Medical Center
   3. Wage statement
   4. Choice of Physician Form-Orthopedists (back)
   5. Choice of Physician Form-Foot injury
   6. Recorded statement
   7. Notice of denial
   8. Separation Notice
   9. FCE
   10. Retalix Power Warehouse Select Directed Move (orders filled)
   11. Medical bills; For identification only
   12.August 12, 2013 Charles C. Parks Company Safety Procedures/Guidelines
   13. Photo of cherry picker with harness circled
   14. Photo of cherry picker with harness and pallet circled

Technical record:
   1. Petition for Benefit Determination
   2. Employer position statement
   3. Dispute Certification Notice
   4. Request for Expedited Hearing
   5. Employer's Pre-Trial Brief
   6. Employer's Motion to Allow Introduction ofDocuments




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                           CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the Expedited Hearing Order was sent to
the following recipients by the following methods of service on this the 28th day of
March, 20 17.

Name                     Certified    Via        Via    Service sent to:
                          Mail        Fax       Email
Michael Rogers, self-       X                           114 Wright Lane, Hartsville TN
represented                                             37074
Gordon Aulgur,                                   X      gordona@accidentfund.com
Employer's attorney




                                        ~df:.:::Court
                                        Court Workers' Compensation Claims
                                        WC.CourtCierk@tn.gov




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