FILED

December 18, 2017

   
    
   
   

    
 
  

TN COURT OF
EES. WORKERS’ COMPENSATION
IT RBS. CLAIMS
i fencapent BR
ay Time: 1:12 P.M. EASTERN

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

AT KNOXVILLE

JACKIE WEBB, ) Docket No. 2016-03-1200
Employee, )

Vv. )

ENREMA, LLC, ) State File No. 69263-2016
Employer, )

And )

AIG INSURANCE COMPANY, ) Judge Lisa A. Lowe
Insurance Carrier. )

 

EXPEDITED HEARING ORDER
DENYING BENEFITS

 

This matter came before the undersigned Workers’ Compensation Judge on
November 28, 2017, for an Expedited Hearing. The central legal issue is whether Jackie
Webb demonstrated he is likely to prevail at a hearing on the merits that his injury arose
primarily out of and in the course and scope of his employment with Enrema and, if so,
whether he is entitled to medical and temporary disability benefits. For the reasons set
forth below, the Court holds Mr. Webb failed to demonstrate he is likely to prevail at a
hearing on the merits. Therefore, the Court denies his claim at this time.

History of Claim

Mr. Webb worked for Enrema as a well tender. His job duties consisted of
gauging well pressures, changing belts and spark plugs, and performing general
maintenance and landscaping around the wells. Enrema issued Mr. Webb a truck, tools,
and a weed eater to perform his job duties. While driving his work truck in the early
morning hours of August 13, 2016, Mr. Webb swerved to miss a deer and hit a tree. He
injured his neck, legs, hip, and low back. Emergency personnel transported him to the
hospital where he underwent surgery.

Mr. Webb remained in-patient for three days before the attending physician
discharged him, restricting him from heaving lifting, driving, and toe touch weight

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bearing of the left leg. He subsequently received follow-up orthopedic care. Mr. Webb
contacted Mr. Campbell to determine whether Enrema could accommodate his
restrictions, but Mr. Campbell terminated him. Mr. Webb filed a C-32 Medical Report
that indicated he was unable to work from August 13, 2016, until April 17, 2017. He
testified that he has not worked since the accident.

Enrema denied Mr. Webb’s claim on grounds that he was not in the course and
scope of his employment at the time of the accident. Specifically, Enrema contended Mr.
Webb had no reason to be working at 4:30 a.m. on August 13, a Saturday. In the
alternative, if Mr. Webb intended to work that day, he deviated on a personal errand at
the time of the accident. The parties gave the following testimony regarding this disputed
issue.

Mr. Webb

During the week of the accident, Mr. Webb told Mr. Campbell that he needed to
take Friday, August 12, off to take his fiancée, Ms. Barnes, to a doctor’s appointment in
Nashville and would make up the work on Saturday, August 13.

Mr. Webb testified he drove Ms. Barnes to Nashville on Friday and stayed in his
vehicle while she attended her appointment. He provided an “excuse note” from Dr. Raju
Indukuri’s office showing she had an appointment on August 12. Later in the day, Mr.
Campbell contacted Mr. Webb to advise he could pick up his paycheck. Sometime
around 5:00 p.m., Mr. Webb returned to Enrema. While there, he got belts and
equipment.

Mr. Webb testified that he got up at 4:00 a.m. on Saturday, August 13, to try to
finish his work by 6 p.m. He loaded some of his supplies and equipment in his work
truck and headed toward the Brimstone well. After traveling a short distance, Mr. Webb
realized that he left his tool bag with $20.00 in it and Enrema’s weed eater at his house.
Mr. Webb maintained he turned around to go home to get the items. He said he needed
the money to buy oil for the weed eater. Shortly after turning around, Mr. Webb had the
accident.

Mr. Webb provided a recorded statement to an adjuster. He acknowledged that he
told the adjuster he turned around to go back and get his money and did not mention
needing his tool bag or the weed eater or that he needed money to buy oil. Mr. Webb
conceded that Enrema had an account at a local gas station and he could have obtained
the oil without having to pay for it and that he did not need money to perform his job
duties. Mr. Webb agreed it was dark at 4:30 a.m. and that he had a crossbow in his truck
at the time of his accident. However, he said it was not for deer hunting but was for
protection in case he encountered a snake.
Mr. Campbell

Mr. Campbell confirmed that on a prior occasion he let Mr. Webb take off on a
Friday and make up the work on a Saturday. He also agreed that Mr. Webb told him he
needed this particular Friday off to take Ms. Barnes to an appointment in Nashville and
that he would make up the work the next day. However, Mr. Campbell’s remaining
testimony varied from Mr. Webb’s significantly. Mr. Campbell testified that when Mr.
Webb came to pick up his check, he looked as if he had been working, so he asked Mr.
Webb if he went to Nashville. He said Mr. Webb told him he did not have the money to
go to the appointment. Because of that, he thought Mr. Webb worked that Friday and
would not be working on Saturday.

Enrema averred that Mr. Webb did not go to Nashville for Ms. Barnes’
appointment on August 12 and filed the declaration of Dr. Indukuri. Dr. Indukuri stated
Ms. Barnes is one of his patients; the excuse note was in error; and he was not aware of
how Ms. Barnes came to obtain it. He said Ms. Barnes did not attend an appointment at
his office on August 12 because his office was closed. He further stated that he saw Ms.
Barnes on August 15. Therefore, Mr. Webb had no reason to be working Saturday.

Even if Mr. Webb intended to work, Enrema contended he deviated on a personal
errand at the time of the accident. Mr. Campbell testified that it was dark at 4:30 a.m.
and a person would not be able to attend gauges in the dark. Enrema relied on Mr.
Webb’s recorded statement where he said he turned around to get his money but failed to
mention anything about his tool bag or weed eater or that he needed the money to buy oil.
Mr. Campbell testified that Mr. Webb did not need money to perform his job duties and
could have obtained oil on Enrema’s account.

Findings of Fact and Conclusions of Law

Mr. Webb bears the burden of proving all essential elements of his claim by a
preponderance of the evidence. Scott v. Integrity Staffing Solutions, 2015 TN Wrk.
Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). However, at an Expedited Hearing,
his burden of proof requires him only to come forward with sufficient evidence from
which this Court can determine that he is likely to prevail at a hearing on the merits. See
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*9 (Mar. 27, 2015).

To be compensable, an injury must arise primarily out of and in the course and
scope of the employment. Tenn. Code Ann. § 50-6-102(13) (2017). Traditionally, courts
have held that the statutory requirements that an injury arise out of and in the course of
the employment are not synonymous “although both elements exist to ensure a work
connection to the injury for which the employee seeks benefits.” Blankenship v. Am.
Ordnance Sys., 164 S.W.3d 350, 354 (Tenn. 2005). An injury occurs in the course of

3
employment if it takes place while the employee was performing a duty he or she was
employed to perform. Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn. Workers’ Comp.
Panel 1993). Thus, the course of employment requirement focuses on the time, place,
and circumstances of the injury. Saylor v. Lakeway Trucking, Inc., 181 S.W.3d 314, 318
(Tenn. 2005).

In contrast, arising out of employment refers to causation. Reeser v. Yellow
Freight Sys., Inc., 938 S.W.2d 690, 692 (Tenn. 1997). An injury arises out of
employment when there is a causal connection between the conditions under which the
work is required to be performed and the resulting injury. Fritts v. Safety Nat’l Cas.
Corp., 163 8.W.3d 673, 678 (Tenn. 2005). Put another way, the element of causation is
satisfied when the “injury has a rational, causal connection to the work.” Braden vy.
Sears, Roebuck & Co., 833 S.W.2d 496, 498 (Tenn. 1992). The mere presence of the
employee at the place of injury because of the employment is not enough, as the injury
must result from a hazard peculiar to the work or be caused by a risk inherent in the
nature of the work. Blankenship, 164 S.W.3d at 354. Accordingly, “an injury purely
coincidental, or contemporaneous, or collateral, with the employment . . . will not cause
the injury . . . to be considered as arising out of the employment.” Jackson v. Clark &
Fay, Inc., 270 S.W.2d 389, 390 (Tenn. 1954).

Applying these principles, the Court finds that Mr. Webb failed to establish that
the accident and his injuries arose primarily out of and in the course and scope of
employment. The sole reason Mr. Webb would have been working on Saturday, August
13, was to make up time for missing work on Friday, August 12, for taking his fiancée to
her appointment. Mr. Webb filed an excuse note from Dr. Indukuri’s office showing she
had an appointment on August 12. However, the Court credits Dr. Inkukuri’s
declaration, which unequivocally stated: the excuse note was in error and he was not
aware of how Ms. Barnes obtained it; he did not see Ms. Barnes on August 12 because
his office was closed; and he saw Ms. Barnes on Monday, August 15.

Additionally, the Court finds the time of the accident important. Mr. Webb
acknowledged it was dark, and Mr. Campbell testified Mr. Webb would not be able to
perform his job duties in the dark. Mr. Webb offered no explanation as to how he would
perform his work in the dark. Finally, the Court holds that even if Mr. Webb did plan to
work that Saturday, he deviated on a personal errand at the time of the accident. Mr.
Webb told the adjuster in his recorded statement that he turned around to get money. He
did not mention the weed eater or his tool bag. Mr. Webb acknowledged that he did not
need money to perform his job duties. Based on these facts, the Court concludes that Mr.
Webb failed to meet his burden of proof.

Therefore, as a matter of law, Mr. Webb has not come forward with sufficient
evidence from which this Court concludes that he is likely to prevail at a hearing on the
merits. His requests for medical and temporary disability benefits are denied at this time.

4
IT IS, THEREFORE, ORDERED as follows:

1. Mr. Webb’s claim against Enrema, LLC and its workers’ compensation carrier for
the requested medical and temporary disability benefits is denied at this time.

2. This matter is set for a Scheduling Hearing on February 13, 2018, at 10:00 a.m.
Eastern Time. The parties must call 865-594-0109 or 855-383-0003 toll-free to
participate in the Scheduling Hearing. Failure to appear by telephone may result
in a determination of the issues without the party’s participation.

ENTERED December 18, 2017.

wa A Woe

LISA A. LOWE, JUDGE
Court of Workers’ Compensation Claims
APPENDIX

Technical Record:

gt

go

Petition for Benefit Determination

Dispute Certification Notice

Request for Expedited Hearing

Employer’s Request for Evidentiary Hearing

Employer’s Response to Employee’s Response to Request for Expedited
Hearing

Order Setting Expedited Hearing

Employer’s Tenn. Comp. R. & Regs.0800-02-21-.14(b) Submissions
Employee’s Pre-Trial Statement

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.

Exhibits:

CON DARWNHE

Affidavit of Jackie Webb

Deposition Transcript of Jackie Webb (Identification Only)
Declaration of Shalondra Fitzgerald and attached Exhibits
Declaration of Dr. Raju Indukuri and attached Exhibits

Jackie Webb’s Responses to Employer’s First Set of Interrogatories
Jackie Webb’s Responses to Employer’s Request for Admissions
Medical Note of Dr. Raju Indukuri, dated August 12, 2016

Gauge Sheet, 26 pps

Well Names, Locations and Map, 4 pps

10. Map of travels on Friday Morning and Evening Work Shifts
11.Route Map for Saturday

12. Photographs of Unloaded Tools and Equipment, 8 pps

13. Table of Contents

a.
b.
c.

d.

é.

Scheduled for MRI on Spine

Current Work Status Notes (/dentification Only)

Standard Form Medical Report for Industrial Injuries, Form C-32, dated
April 17, 2017

Medical Records Certification and Medical Records of University
Orthopedic Surgeons, 33 pps

Medical Records of University of Tennessee Medical Center, 56 pp

14. Wage Statement, Form C-41
CERTIFICATE OF SERVICE

I hereby 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 December 18,
2017.

 

 

 

Name Certified | Fax | Email | Service sent to:

Mail
Jackie Webb, x jackwebb4223@gmail.com
Self-Represented
Employee
Catherine Dugan, Esq. x cate@petersonwhite.com
Employer’s Attorney

 

 

 

 

 

 

 

 
  
  

PENNY/(SHRUM, Court Clerk
WC.CourtClerk@tn.gov

  
