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

Jeremiah Roper,                                           )   Docket No.: 2016-01-0546
           Employee,                                      )
v.                                                        )    State File No.: 61298-2016
Allegis Group,                                            )
            Employer,                                     )   Judge: Audrey A. Headrick
and                                                       )
Agri General Insurance Company,                           )
            Insurance Company.                            )


                    EXPEDITED HEARING ORDER
        GRANTING TEMPORARY DISABILITY AND MEDICAL BENEFITS


       This matter came before the Court on December 13 2016, on a Request for
Expedited Hearing filed by Jeremiah Roper. The central legal issue is whether Allegis
Group has adequate grounds to deny Mr. Roper's claim based on the affirmative defense
of willful failure or refusal to use a safety device. For the reasons set forth below, the
Court holds Allegis failed to present sufficient evidence demonstrating it is likely to
prevail at a hearing on the merits that Mr. Roper willfully failed or refused to use a safety
device. Accordingly, based upon the evidence presented at this time, the Court concludes
Mr. Roper is likely to prevail at a Compensation Hearing that his August 11, 2016 injury
is compensable. 1

                                           History of the Claim

        Although the parties dispute whether Mr. Roper violated any safety rules, the facts
in this matter are relatively undisputed. Mr. Roper is a thirty-six-year-old high school
graduate. He works for Allegis, a temporary agency, which placed him at Waupaca
Foundry, an iron foundry , in January or February 2016 as a sand mechanical maintenance
employee. 2 In his third-shift position, Mr. Roper was responsible for performing
1
  A complete listing of the technical record and exhibits is attached to this Order as an appendix.
2
  All pleadings properly identify Allegis Group as the employer. However, counsel for both sides repeatedly
referred to "Aerotek" as Mr. Roper's employer. The record is silent on this issue, but the Court infers that Aerotek
maintenance on conveyors, dust collection systems, air filtrations systems, and auger
systems. 3 For each shift, one to two maintenance employees work on the auger system.

       The parties agreed that Mr. Roper was familiar with the "lock-out/tag-out" process
prior to working at Waupaca based upon his past employment history of dealing with
mechanical issues. Lock-out/tag-out refers to the process of de-energizing, or turning off,
all power supply sources to a machine. The purpose of the lock-out/tag-out process is to
avoid injuries during the performance of maintenance.

        The parties also agreed that Mr. Roper received safety training after he started
working at Waupaca. He received training on Waupaca's policies, procedures and rules
during his first week there, including training on Waupaca's "Energy Control and
Lockout Compliance Work Instruction." (Ex. 3.) The handbook states in 1.3 that,
"[ e]quipment will be locked out before employees perform any servicing or maintenance
where the unexpected energization or start-up of the machine or equipment or release of
stored energy could cause injury to employees." /d. It defines "servicing" or
"maintenance" in 2.11 as follows: "Workplace activities such as constructing, installing,
setting up, adjusting, inspecting, modifying, and maintaining and/or servicing machines
or equipment. These activities include but are not limited to lubrication, cleaning or
unjamming of machines." /d.

       Waupaca's handbook also addresses "troubleshooting." In section 2.12, it states
troubleshooting is the "[ s]ystematic approach to locating the cause of a fault in an
electronic circuit or system." /d. The handbook provides an in-depth discussion
regarding troubleshooting.       For authorized maintenance employees performing
troubleshooting, it states in 8.1.1: "[w ]hen conducting troubleshooting activity where
energy sources must remain on to perform the task, extreme care shall be exercised to
avoid placing the body into a hazardous zone." /d. The handbook goes on to state in
8.1.2:

         Authorized Maintenance Employees involved in trouble shooting must
         maintain a safe distance. They must not approach closer than necessary,
         and in no case, closer than 6 inches to the point of operation. The
         minimum safe distance of 6 inches shall be measured from the exterior
         point of contact of the machine hazard closest to the employee. Once it has
         been determined the machine needs repair, the authorized employee will
         need to continue lockout and cannot remain under "troubleshooting"
         instructions.

I d.

is presumably affiliated with Allegis Group.
3
  An auge r system trnn sport s dust ftom the air to a centralized location where it is loaded into containers and shipped
out of Waupaca.

                                                            2
        Waupaca's handbook also contains a section regarding disciplinary action. Under
4.1, it states, "[a]ny Employee that violates any of the Lockout rules and requirements
will be disciplined up to, and including termination of employment. Tennination may
occur on the first offense." !d. It goes on in 4.1.1 to advise that, "[d]isciplinary actions
are a day without pay, and a formal written reprimand in the employee's personnel file,
or termination of employment." !d. This section further advises that "t]hese disciplinary
actions may fall into any order depending on the seriousness of the incident." !d.

      As part of his Employee Safety Orientation, Mr. Roper completed and passed an
"Energy Control and Lockout Quiz" and a "New Employee Orientation Post-Quiz." (Ex.
4.) The Employee Safety Orientation form states the following:

      During production and/or Maintenance, anytime a machine guard, such as a
      physical guard, a machine door or panel, or a device like a light curtain or
      safety guard will be opened, removed or bypassed, and/or your body is
      placed in a pinch point or danger zone Machine shut down and lockout is
      required. Machine lockout prevents injury and damage to the machine.

!d. (Emphasis in original.) A true/false statement on this form states, "[m]achine lockout
is required when a guard is removed." !d. Mr. Roper circled, "True." !d. On the Energy
Control and Lockout Quiz, Question 1 states, "[a]ny type of work that places you in any
location or position where you may be exposed to live or stored energy needed to be
_ _ ." !d. Mr. Roper wrote, "locked out." !d. On Question 8, it asks, "[w]ho is the
only department that is authorized to open a machine door while the machine is
running?" !d. Mr. Roper wrote, "maintenance." !d. The follow-up question asks,
"[h]ow close can they get to the opening they have created during this process?" !d. Mr.
Roper's response was six inches. !d.

        By March 3, Mr. Roper completed and passed a lock-out audit resulting in his
classification as an "authorized employee." (Ex. 5.) As an authorized employee, Mr.
Roper could perform lock-out/tag-out alone. Waupaca held monthly safety meetings as
well as special safety briefings, and Mr. Roper was part of an annual refresher on lock-
out/tag-out in May.

       Mr. Roper testified regarding his routine that he performed one to two times each
day at Waupaca. After the "transferring of the shift" when he would meet with the
second-shift maintenance co-worker to receive a verbal report about machinery, Mr.
Roper performed a "walk-thru" on the auger catwalks to perform a visual inspection of
the machinery to ensure the functionality of all transportation systems. Due to the poor
air quality, Mr. Roper stated a visual inspection was necessary in order to see any holes
that might be present due to rusting. He did not lock-out/tag-out the machinery prior to
doing his daily walk-thru. Mr. Roper's undisputed testimony was that his immediate

                                             3
supervisor, Chuck Henley, trained him to leave the machinery on when doing his daily
walk-thru. It was also Mr. Roper's undisputed testimony that Mr. Henley and a second-
shift co-worker trained him to grease bearings down in the trough system while it was
still running.

        Mr. Roper testified regarding the events that occurred on August 11. As required
by Waupaca, Mr. Roper was wearing long-sleeved, fire resistant clothing (FRC), gloves,
a hard hat, and safety glasses. After reporting to the sand lab to receive a verbal report
from "Jose," a second-shift employee, Mr. Roper and Jose left the sand lab together.
They saw a small plume of dark smoke upon the auger deck, which is located up two
flights of stairs. Mr. Roper stated it was unusual to see smoke in that location. He
walked on the mesh catwalk, which has eighteen to twenty-four inches on either side of
the trough system. Mr. Roper looked on the auger deck to see if the auger "had seized"
and if there was "an auger jumping out of the trough." (Ex. 9.) When he did not see those
problems, Mr. Roper gave a "thumbs up" to Jose, who was on the ground floor, letting
him know he would handle the situation.

        Mr. Roper then went back across the auger deck to centralize the problem to know
which row on the auger deck to shut down. He stated he wanted to make sure there were
no holes in the auger system that needed repair. He walked around the end of the auger
bit and saw that the auger door was open. (Ex. 7.) Mr. Roper also saw material coming
out of the auger, but he did not perform any type of work or maintenance. As Mr. Roper
stepped up on the trough system to go back to the sand lab to report his findings to the
shift leader, he stated that, "something grabbed him" and started pulling his left ann into
the auger bit. There were no witnesses to the accident. Mr. Roper had to pull his arm
free in order to save his life. In doing so, the auger amputated his left hand right above
his wrist. Despite the amputation of his hand, Mr. Roper compressed the arteries to
control the bleeding and ran down two flights of stairs and forty yards across the auger
deck until he ran into a co-worker who applied a tourniquet.

        A helicopter flew Mr. Roper to UT Medical Center where he had numerous
surgeries resulting in additional amputation of his left ann. (Ex. 2.) The hospital
discharged him on August 26 with an infection and sent him home with medication to
last for five days. 4

       During his hospitalization, Allegis denied Mr. Roper's claim on August 19 listing
"safety violation" as the basis for its denial. (Ex. 11.) After Allegis denied his claim, Mr.
Roper agreed to provide a recorded statement on September 2. Allegis introduced the
recorded statement into evidence for the limited purpose of impeachment. (Ex. 13.)
Three days after giving his record statement, UT Medical Center re-admitted Mr. Roper

4
 After August 31, the fifth day after his discharge, Mr. Roper no longer had any pain medication. He testified the
only times he received additional pain medication was during his subsequent hospitalizations.

                                                        4
from September 5 through September 16 due to a worsening of his sepsis infection that
had caused him to experience severe pain, difficulty breathing, and a fever for the prior
three days. (Ex. 2.) Mr. Roper underwent additional surgery, and his left arm was
amputated just below his shoulder. He received a PICC line to treat his infection.

       After his second discharge from UT Medical Center, Mr. Roper's sepsis infection
required him to travel approximately sixty-five to seventy miles one-way from Ten Mile,
where he resides, to UT Medical Center in Knoxville, for thirty-three to thirty-six
consecutive days to receive antibiotic treatments. Mr. Roper's last hospitalization due to
his infection was from November 3 to November 7 during which time he underwent
additional amputation of his left ann. Since his third hospitalization, Mr. Roper
underwent an MRI and had a December 14 appointment scheduled to discuss the results.
Further, David Erpenbach, P.A.-C, provided correspondence stating Mr. Roper was off
work from August 11, 20 16, forward until further notice.

       Rebecca Williams, Regional Safety Manager for Allegis, also testified regarding
her investigation of Mr. Roper's accident. 5 Ms. Williams does not work on-site at
Waupaca. In fact, her only visit to Waupaca occurred on August 15 or 16. Brad Moses,
Health and Safety Manager for Waupaca, and another individual employed by Waupaca,
took Ms. Williams to the auger where Mr. Roper was injured. Ms. Williams stated that
the only person she spoke with regarding Mr. Roper's accident was Mr. Moses. Due to
Mr. Roper's hospitalization, Ms. Williams did not meet with him. Instead, the third-party
administrator for Allegis advised her that it would obtain a statement from him.

       While there, Ms. Williams took the photographs admitted into evidence as
Exhibits 6 through 9. Ms. Williams walked on the auger catwalk while the machine was
running. However, she stated she did not know if she walked the same route that Mr.
Roper did when he was injured. Ms. Williams agreed with Mr. Roper's estimate that
parts of the catwalk consist of tight spaces of eighteen to twenty-four inches. She also
agreed with Mr. Roper's assessment that it is a tight fit at the end of the trough, and it is
hard to stay six inches away from it. When asked how close she got to the auger, Ms.
Williams stated she was standing up against the auger at one point while it was running
and had dirt on her legs from leaning up against it.

      Ms. Williams testified regarding Waupaca's disciplinary actions. She stated that if
a "contractor," meaning a temporary employee like Mr. Roper, violated Waupaca's
lockout/tag-out rules, Waupaca would give the person time off and investigate. Ms.
Williams stated the contractor would likely not be allowed to return to Waupaca.
Although Ms. Williams stated she knew that Waupaca had let go employees for violating

5
  Ms. Williams has worked for Allegis for over nine years. In her current position, she stated she partners with
clients and employees to ensure that federal and state regulatory affairs are in order. Ms. Williams is an authorized
OSHA instructor for maritime and general industry. Prior to working at Allegis, Ms. Williams worked over
eighteen years in distribution and industrial/commercial environments.

                                                         5
safety rules, she stated she had no idea of how Waupaca exercises its policies beyond
what Mr. Moses told her. Ms. Williams acknowledged she did not ask about nor was she
aware of Mr. Roper's past safety record at Waupaca. However, Ms. Williams' opinion is
that Mr. Roper violated a safety procedure because he accessed a panel that was open
without performing lockout/tag-out. She acknowledged it was possible that the unit
could have caught a thread and pulled his hand into it. Ms. Williams also stated she did
not know if Mr. Roper was terminated. She stated that, from her standpoint, Mr. Roper
was still "on the books" until he is released from his medical provider.

        Likewise, Mr. Roper testified that no one has told him he is either suspended or
terminated from working at Waupaca. He believes he did not violate any safety rule.
Mr. Roper stated he did not receive any reprimands or warnings while working at
Waupaca. He was adamant that he did not do anything differently in his daily routine on
August 11. The accident occurred at the beginning of his shift, and he was not in a hurry
or trying to save time. Mr. Roper testified he had seen other co-workers walking on the
catwalk when it was not locked-out/tagged out. He was unaware of those employees
receiving any reprimands from Waupaca.

                       Findings of Fact and Conclusions of Law

       The Court now turns to the legal principles it must apply to determine whether
Allegis satisfied its burden of proof to establish the willful failure or refusal to use a
safety device affinnative defense. All egis need not prove every element of its defense by
a preponderance of the evidence in order to succeed at an Expedited Hearing. McCord v.
Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). Instead, it must
come forward with sufficient evidence from which this Court might determine it is likely
to prevail at a hearing on the merits. ld.; Tenn. Code Ann. § 50-6-239(d)(l) (2016).

            Willful Failure or Refusal to Use a Safety Device Affirmative Defense

        The controlling case outlining the willful misconduct affirmative defense is
Mitchell v. Fayetteville Public Utilities, 368 S.W.3d 442 (Tenn. 2012); see also
Gonzales v. ABC Prof'! Tree Servs., No. 2014-06-0015, TN Wrk. Comp. App. Bd.
LEXIS 2 (Tenn. Workers' Comp. App. Bd. Nov. 10, 2014). The previous statutory
preference for an equitable construction and a remedial application played no role in
Mitchell's outcome. Therefore, this Court is bound by its principles. See McCord, supra,
at n.4 ("Reliance on precedent from the Tennessee Supreme Court is appropriate unless it
is evident that the Supreme Court's decision or rationale relied on a remedial
interpretation of pre-July 1, 2014 statutes[.]").

       In order to successfully defend a workers' compensation claim on the basis of
willful misconduct, willful disobedience of safety rules, or willful failure to use a safety

                                             6
device under Tennessee Code Annotated section 50-6-llO(a), the Mitchell Court adopted
a four-step test: (1) the employee's actual, as opposed to constructive, notice ofthe 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. Mitchell, 368 S.W. at 453. In applying the four elements to the present case, this
Court concludes that Allegis failed to meet its statutory burden to prove the defense of
willful failure or refusal to use a safety device.

       Before applying the Mitchell test to the facts of this case, the Court notes it
observed Mr. Roper in an in-person, evidentiary hearing and finds him to be a credible
witness. The Court gives no weight to the recorded statement admitted for the purposes
of impeaching Mr. Roper's testimony. After sustaining a traumatic amputation of his
hand and subsequent surgical amputations, UT Medical Center discharged Mr. Roper on
August 26 with five days of medication. Seven days after his discharge and two days
after he ran out of medication, Mr. Roper provided a recorded statement to Allegis.
Three days later, UT Medical Center re-admitted Mr. Roper with severe pain, difficulty
breathing, and a fever for the prior three days. Although the recorded statement shows
discrepancies regarding two issues that are not relevant, the Court gives no weight to a
recorded statement given under the circumstances that existed at that time. Thus, the
Court holds that Allegis did not impeach Mr. Roper's testimony.

   1. The employee's actual, as opposed to constructive, notice of the rule.

       It is undisputed that Mr. Roper had actual, as opposed to constructive, notice of
Waupaca's lockout/tag-out safety rules. He agreed he received safety training and took
quizzes based on Waupaca's Energy Control and Lockout Compliance Work Instruction
during his employee orientation. Mr. Roper's testimony was that he had a clear
understanding of the lockout/tag-out rules. Therefore, Allegis satisfied the first element
of the Mitchell test.

   2. The employee's understanding of the danger involved in violating the rule.

       It is undisputed that Mr. Roper understood the danger involved in violating the
lockout/tag out safety rules. Mr. Roper specifically testified that the purpose of
performing lockout/tag out was to avoid injuries during maintenance of the machinery.
The training material that Mr. Roper received from Waupaca also discussed the reason
behind the lockout/tag-out rules. Therefore, All egis satisfied the second element of the
Mitchell test.




                                              7
   3. The employer's bona fide enforcement of the rule.

       As to the third element, Allegis failed to establish Waupaca's bona fide
enforcement of the lockout/tag-out rules. Although the proof demonstrates that Waupaca
provided its handbook to new employees and tested them during a new hire training
orientation, the proof does not establish that Waupaca enforced and/or uniformly applied
the rules. Mr. Roper's undisputed testimony is that he performed a walk-thru on the
catwalks once or twice every day with the machines running as his supervisor, Chuck
Henley, trained him to do. He saw other co-workers walking on the catwalks with the
machines running on numerous occasions. Mr. Roper's unrebutted testimony was that
Mr. Henley and a second-shift co-worker trained him to grease bearings down in the
trough system while it was still running.

        Additionally, to inspect and photograph the auger where Mr. Roper was injured,
Ms. Williams testified she walked on the catwalks with the machinery running. In
violation of the six-inch rule, Ms. Williams testified that at one point she was standing up
against the auger while it was running and had dirt on her legs from leaning up against it.
Although Ms. Williams is not working as a temporary employee at Waupaca like Mr.
Roper, her testimony demonstrates a laxity by Waupaca on its bona fide enforcement of
its lockout/tag-out rules.

        Finally, either Waupaca believed Mr. Roper did not violate any safety rules or, if it
did, it chose not to discipline him as required by its own rules. · Waupaca's Energy
Control and Lockout Compliance Work Instruction rules indicate that, at a minimum, a
violator of the lockout/tag-out rules would receive "a day without pay, and a formal
written reprimand in the employee's personnel file, or tennination of employment." (Ex.
3.) Here, Mr. Roper never received a reprimand or termination from Waupaca. Ms.
Williams is also unaware of Mr. Roper receiving any reprimand or termination from
Waupaca. Therefore, Allegis did not satisfy the third element of the Mitchell test.

   4. The employee's lack of a valid excuse for violating the rule.

        As to the fourth element, the Court finds based upon the proof that Mr. Roper did
not violate a safety rule. However, in the alternative, if Mr. Roper violated the six-inch
rule, the reasonable excuse for violating the rule is that both Mr. Roper and Ms. Williams
testified that the area where Mr. Roper was injured is a tight space on the catwalk. Ms.
Williams also testified it is hard to stay six inches away from the trough and the end of it
where Mr. Roper was injured. Waupaca's Energy Control and Lockout Compliance
Work Instruction rule 8.1.2 permits authorized maintenance workers, like Mr. Roper, to
perform troubleshooting in order to determine if a machine needs repair before instituting
the lockout/tag-out procedure. If Mr. Roper violated the six-inch rule, the testimony of
Mr. Roper and Ms. Williams indicate that any such violation was unavoidable as opposed
to a willful violation.

                                             8
        Allegis also argued that Mr. Roper violated Waupaca's rule about performing
lockout/tag-out anytime a machine door or panel "will be opened, removed or bypassed
and/or if your body is placed in a pinch point or danger zone." (Ex. 4.) Mr. Roper
testified he did not open the auger door but saw that it was open when he perfonned his
walk-thru to locate the cause of the plume of smoke. He testified he did not perform any
work on the auger. Instead, prior to the accident, Mr. Roper intended to return to the
ground level to initiate the lockout/tag-out procedure prior to working on the auger.
Therefore, for the reasons set forth above, All egis did not satisfY the fourth element of the
Mitchell test.

       Accordingly, the Court holds All egis is unlikely to prevail at a hearing on the
merits in proving that Mr. Roper's claim is barred by the safety rule defense. The Court
further holds Mr. Roper is likely to prevail at a hearing on the merits in proving his
August 11 claim is compensable under the Workers' Compensation Law. Therefore,
since the only disputed issue was whether Mr. Roper's claim was barred by the safety
rule defense, the Court grants his request for medical and temporary disability benefits
without any legal analysis as to those issues.

 IT IS, THEREFORE, ORDERED as follows:

   1. Allegis or its workers' compensation carrier shall, at Mr. Roper's discretion, either
      authorize him to continue treating at UT Medical Center or provide him with a
      panel of appropriate specialists compliant with Tennessee Code Annotated section
      50-6-204(a)(3) (2016) for treatment of his August 11,2016 injury. Mr. Roper or
      the providers shall furnish Allegis, or its carrier, bills for the charges incurred for
      compensable care, and Allegis or its carrier shall timely pay said charges.

   2. Upon presentment of bills by Mr. Roper or his treating providers, Allegis or its
      carrier shall timely pay the charges for past treatment of Mr. Roper's work-related
      injuries by, or upon the prescription of, UT Medical Center.

   3. All egis shall also pay the appropriate amount of mileage reimbursement to Mr.
      Roper for the numerous trips he made from his residence in Ten Mile to UT
      Medical Center in Knoxville.

   4. The parties stipulated Mr. Roper's average weekly wage ts $1,033.32, which
      equates to a weekly compensation rate of$689.22.

   5. Payment of past due temporary disability benefits in the amount of $13,193.64
      shall be made for the period from August 11, 2016, to December 23, 2016.

   6. Allegis or its workers' compensation carrier shall continue to pay temporary
      disability benefits in regular intervals to Mr. Roper until he is no longer eligible

                                              9
     for those benefits by reaching maximum medical improvement, by returning to
     work at a wage equal to or greater than the pre-injury wage, or by a release
     without restrictions by the authorized treating physician. All egis' representative
     shall immediately notifY the Bureau, Mr. Roper, and Attorney Jeff Rufolo, of the
     intent to terminate temporary disability benefits by filing Form C-26, citing the
     basis for the termination.

  7. Pursuant to Tennessee Code Annotated section 50-6-226(d)(l)(B) (2016), the
     Court awards reasonable attorney fees and reasonable costs incurred by Attorney
     Jeffrey Rufolo. Mr. Rufolo requested attorney fees under said provision in his
     pre-hearing brief and verbally moved the Court to award such fees in his closing.
     Before All egis or its workers' compensation carrier is required to pay said attorney
     fees, Mr. Rufolo shall file a supporting affidavit of his billable time and, if any,
     expenses incurred, with the Clerk.

  8. This matter is set for a Scheduling Hearing on March 14, 2017, at 10:00 a.m.
     Eastern Time.

  9. 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.

  10. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email WC om pliancc.Program@ln. gov or by calling (615)
      253-1471 or (615) 532-1309.

IT IS SO ORDERED.

     ENTERED this the 23rd day of December, 2016.




                                 Court of Workers' Compensation Claims




                                           10
Scheduling Hearing:

      A Scheduling Hearing has been set on March 14, 2017, at 10:00 a.m. Eastern
Time, with Judge Audrey A. Headrick, Court of Workers' Compensation Claims.
You must call 423-634-0164 or toll free at 855-383-0001 to participate in the
Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.


Right to Appeal:

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

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

   3. Serve a copy of the Expedited 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 Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed 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 Mfidavit of
      Indigency in accordance with this section shall result in dismissal of the
      appeal.

   5. The parties, 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 ten calendar days of the filing of the Expedited

                                            11
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited 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 of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifYing the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing ofthe appellant's
   position statement. All position statements pertaining to an appeal of an
   interlocutory order should include: (1) a statement summarizing the facts of the
   case from the evidence admitted during the expedited hearing; (2) a statement
   summarizing the disposition of the case as a result of the expedited hearing; (3) a
   statement of the issue(s) presented for review; and (4) an argument, citing
   appropriate statutes, case law, or other authority.




                                         12
                                   APPENDIX

Exhibits:
   1. Affidavit of Jeremiah Roper
   2. Medical records ofUT Hospital
   3. Energy Control and Lockout Compliance Work Instruction
   4. Employee Safety Orientation; Energy Control and Lockout Quiz; and New
       Employee Orientation: E/H/S Post-Quiz
   5. Authorized Employee Lockout Audit; Training/Payroll Attendance Sheet; Three
       photographs of open hatch with warning
   6. Photo (Top view of hatch with red handle)
   7. Photo (Side view of auger)
   8. Photo (angle view of door)
   9. Photo (long view of auger)
   10. First Report
   11. Notice of Denial
   12. Three photographs of open hatch with warning
   13. Recorded Statement


Technical record:
   1. Petition for Benefit Determination, filed September 8, 2016
   2. Amended Petition for Benefit Determination, filed September 23, 2016
   3. Dispute Certification Notice, filed October 18, 2016
   4. Request for Expedited Hearing, filed October 25, 2016
   5. Medical Record Table of Contents, filed October 26, 2016
   6. Supplemental Medical Record Table of Contents, filed November 7, 2016
   7. Notice of Expedited Hearing, filed November 22, 2016
   8. Joint Motion for Extension of Filing Time Periods, filed December 2, 2016
   9. Order Granting Joint Motion for Extension of Filing Time Periods, entered
       December 5, 2016
   lO.Employee's Pre-Hearing Brief, filed December 5, 2016
   11. Expedited Hearing Brief of Employer and Insurance Carrier, filed December 7,
       2016
   12. Motion to Amend Pleadings, filed December 7, 20 16
   13. Order Granting Motion to Amend Pleadings, entered December 20, 2016




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                            CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order
 Granting Medical and Temporary Disability Benefits was sent to the following recipients
 by the following methods of service on this the 23rd day of December, 2016.

     Name             Certified      Via                    Email Address
                       Mail         Email
Jeff Rufolo,                          X          jrufolo@summersfirm. com
Attorney                                         iahollis@summersfirm.com
David Deming,                         X          ddeming@ma11ierherod.com
Attorney                                         tioi ner@maniemerod.com




                                             Q_,~~
                                          Pen~ySilrl( Ark<)(court
                                                                             tv){)f5f111Ad~90
                                          Court of Workers' Compensation Claims
                                          WC.CourtClerk@tn.gov




                                            14
