                                                                                 FILED
                                                                               Nov 27, 2019
                                                                               07:32 AM(CT)
                                                                            TENNESSEE COURT OF
                                                                           WORKERS' COMPENSATION
                                                                                  CLAIMS




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

ZACKERY STEVEN SMITH,                      )   Docket No. 2018-02-0393
        Employee,                          )
v.                                         )
EVERIDGE, INC.,                            )   State File No. 19790-2018
         Employer,                         )
And                                        )
THE HARTFORD,                              )   Judge Brian K. Addington
         Carrier.                          )


                          EXPEDITED HEARING ORDER


       Zackery Smith requested medical and temporary disability benefits after he cut his
hand at work. Everidge denied benefits based on Mr. Smith's willful failure to follow
safety rules. For the reasons below, the Court holds Mr. Smith is entitled to ongoing
medical benefits but not past medical benefits or temporary disability benefits.

                                  History of the Case

       Mr. Smith built walk-in cooler ceilings for Everidge. He used various tools to
perform his job and in particular received training on how to correctly operate a table
saw. After the training, Mr. Smith received an equipment-operating permit allowing him
to operate the table saw.

       On March 16, 2018, Mr. Smith needed to make repeated cuts and intended to use
the in-line saw, but another employee was using it. Instead, he used the table saw. Mr.
Smith previously watched a safety-training video that instructed against wearing gloves
when operating a table saw. Regardless, he operated the table saw with gloves on and
severely injured his right hand. He sought emergency treatment, where providers at the
hospital referred him to Dr. Wesley Thayer at Vanderbilt Health.
       Larry Gothard, plant manager, visited Mr. Smith at the hospital. He testified Mr.
Smith acknowledged he would receive a reprimand for his actions but explained he used
the table saw to keep busy.

      Although he expected a reprimand, Mr. Smith testified he never signed an
employee handbook or other written safety rules before the accident. Other than the
equipment training, the only safety training Everidge provided was videos played at
monthly safety meetings.

        Everidge denied Mr. Smith's claim on basis of"willful misconduct, willful [sic] of
safety rules, and willful failure to use a safety device." Although Everidge claimed it
enforced safety rules, its witnesses testified they do not watch employees for safety
violations.

        Mr. Smith argued he was entitled to benefits because he was injured at work and
Everidge did not prove its affirmative offense. He argued he received training on how to
operate the table saw, but Everidge never provided specific safety rules he was required
to follow. He stated he was wearing gloves when he operated the table saw, but he had
intended to use a different saw before he noticed another employee was already using it.
Also, he testified Everidge management never reprimanded him before he cut his hand.

       Everidge argued Mr. Smith did not have any reason for violating its rules and
therefore the Court should deny his claim.

                       Findings of Fact and Conclusions of Law

       Mr. Smith must present sufficient evidence demonstrating that he is likely to
prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(l) (2019). Once he
proves he sustained a work injury, the burden shifts to Everidge to prove no
compensation is owed because of Mr. Smith's failure to abide by safety rules. See Tenn.
Code Ann.§ 50-6-110(a)(1)(4),(b).

        The uncontroverted evidence demonstrated that Mr. Smith was injured at work, so
the burden shifts to Everidge. The controlling case for this defense is Mitchell v.
Fayetteville Public Utilities, 368 S.W.3d 442 (Tenn. 2012). The Supreme Court in
Mitchell held that, to successfully defend a workers' compensation claim on the basis of
willful failure to follow safety rules, the employer must prove: (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. ld. at 453.

       The evidence shows that Everidge trained its employees on how to properly
operate machinery and showed safety videos at monthly safety meetings. However,
Everidge must prove Mr. Smith violated a known safety rule. See Hardin v. WA.
Kendall & Co., Inc., 2019 TN Wrk. Comp. App. Bd. LEXIS 23, at *13 (Jun. 10, 2019).

        Everidge did not provide its employees written safety rules. Rather, it relied on
trainers to verbally emphasize safety and explain its rules. It asserted Mr. Smith violated
"rules," but the training focused on the proper use of equipment. Everidge did not inform
Mr. Smith before the incident that it had specific rules that must be followed, and it did
not prove that he knew its safety rules. The Court finds that Everidge failed to prove it
had safety rules in effect at the time of Mr. Smith's injury.

       Further, although Mr. Smith understood the danger involved in operating
machinery and worked for an extended period without accident, Everidge offered no
proof of a bona fide enforcement of its rule. In fact, its own witnesses confirmed that
they did not watch employees for safety violations.

        Moreover, even if rules were in place, the evidence shows no willful intent on Mr.
Smith's part to violate them. Rather, Mr. Smith chose to operate the table saw instead of
the in-line saw because he wanted to remain productive.

       Considering all the evidence, the Court holds Everidge failed to prove Mr. Smith's
willful failure to follow safety rules. Thus, it appears Mr. Smith is likely to succeed at a
hearing on the merits in proving he suffered an injury at work, and Everidge is not likely
to succeed in proving its affirmative defense.

       Turning to medical benefits, Mr. Smith submitted proof regarding past medical
expenses that he incurred, but he failed to prove that the treatment was necessary and
reasonable to treat his injuries. Therefore, the Court cannot award payment of past
medical expenses. However, Mr. Smith testified he treated at Vanderbilt, and the Court
names Dr. Thayer as the designated physician because Everidge did not provide a panel
of physicians.

        Concerning temporary disability benefits, Mr. Smith did not present any off-work
slips or work restrictions, nor did he testify about when he was unable to work or the date
he returned to work. Without this evidence, the Court cannot award temporary disability
benefits. See Shepherd v. Haren Constr. Co., Inc., 2016 TN Wrk. Comp. App. Bd.
LEXIS 15, at *13 (Mar. 30, 2016).

       IT IS, THEREFORE, ORDERED as follows:

   1. Everidge must provide medical benefits with Dr. Wesley Thayer under Tennessee
      Code Annotated Section 50-6-204.

   2. Mr. Smith's requests for temporary disability benefits and payment of past
       medical benefits are denied at this time.

   3. This case is set for a status hearing on January 13, 2020, at 11:00 a.m. Eastern
      time. The parties must call 855-543-5044 to participate in the hearing.

   4. 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).
      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 might result in a penalty
      assessment for non-compliance. For questions regarding compliance, please
      contact the Workers' Compensation Compliance Unit v1a email at
      WCCompliance.Program@tn.gov.

                                           ENTERED November 27, 2019.



                                            /s/ Brian K. Addington
                                           JUDGE BRIAN K. ADDINGTON
                                           Court of Workers' Compensation Claims

                                       APPENDIX

Exhibits:
   1. Notice ofDenial
   2. Wage Statement
   3. Medical Bills-Collective Exhibit
   4. Medical Records-Takoma Hospital
   5. Medical Records-Laughlin Hospital
   6. Medical Records-Vanderbilt Health
   7. Workplace photograph
   8. Workplace photograph
   9. Equipment Operating Permit

Technical Record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Scheduling Hearing
   4. Status Order
   5. Request for Expedited Hearing
                          CERTIFICATE OF SERVICE

     I certify that a copy of this Expedited Hearing Order was sent as indicated on
November 27,2019.

          Name             Certified Mail Email   Sent To:

Attorney Thomas Jessee,                     X     jj law@j esseeandjessee.com
Employee's Attorney
Joseph Ballard,                             X     joseph.ballard@thehartford.com
Employer's Attorney                               crystal.richmond@thehartford.com




                                      PENNY SHRUM, COURT CLERK
                                      W c.courtclerk@tn.gov
