                                                                                         FILED
                                                                                      April   ll ~   2 01,8

                                                                                        TN COURT OF
                                                                                \1\' 0R.KI.R S' C01JPENSATION
                                                                                           CLilliS

                                                                                         Tim.e· 1:43PM

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

Corey Bunton,                                      )   Docket No. 2016-06-0333
           Employee,                               )
v.                                                 )
Sanderson Pipe,                                    )   State File No. 595-2016
             Employer,                             )
And                                                )
Bridgefield Casualty Insurance Co.,                )   Judge Kenneth M. Switzer
             Carrier.                              )


                          COMPENSATION HEARING ORDER


       This case came before the Court on April 9, 2018, for a compensation hearing.
The central legal issue is the compensability of Corey Bunton's injury, specifically,
whether he willfully failed to follow a safety rule while working for Sanderson Pipe. For
the reasons below, this Court holds that Sanderson Pipe satisfied its burden regarding Mr.
Bunton's failure to follow a safety rule. Therefore, the Court holds that Mr. Bunton is
not entitled to benefits.

                                         History of Claim

       Mr. Bunton worked for Sanderson Pipe, a manufacturer of PVC pipe, as a lead
operator. On January 4, 2016, Mr. Bunton suffered a severe physical injury to his left
hand and wrist and alleged a psychiatric injury, after he placed his left hand inside a
machine known as a "beller" while it was running at work.

      Mr. Bunton testified that, before the injury, the shift supervisor, Jason Manley,
asked him to clean the drain on the beller because water was puddling on the floor below
the machine. 1 The drain on the beller is located behind a safety guard and below a large
mandrel. The mandrel is an insert that pushes heated PVC pipe outward, forming a bell-

1
 A factual dispute exists about how many times Mr. Manley asked Mr. Bunton to clean the drain on this
particular shift. Whether it occurred once or twice is not relevant to the Court's decision.

                                                   1
shape on the end of the pipe, so that pipes may be connected. An operator stops the
beller by pushing an "emergency stop" or "e-stop" button, which powers the machine
down. In addition, the beller has a computer touchscreen with an "automatic stop"
button, which places it in manual mode, so the parts stop moving, but the machine
remains powered.

        The parties disputed whether Mr. Bunton stopped the beller before the accident.
Mr. Bunton testified that he hit the automatic stop button on the computer touchscreen
and then the e-stop button before he placed his left hand on the other side of the guard,
reaching toward the drain. He stated that he did not intend to leave the machine running.
According to Mr. Bunton, after he placed his hand inside the machine in an attempt to
clear the drain, the beller suddenly and inexplicably started up, catching his index finger
in a sliding gate. He immediately stopped the machine using the e-stop and called for
help. Mr. Bunton acknowledged that he did not tell the carrier's investigator during his
recorded statement a few days after the accident that he stopped the machine. He
explained at the hearing that he was heavily medicated at the time he gave the statement.

        No one witnessed Mr. Bunton's actions to corroborate that he pressed either stop
button before the accident. However, quality-control co-worker Brandon Conley was
working nearby at the time of the injury. At the hearing, Mr. Conley reviewed a video of
the accident and testified as to what he observed. He stated that, had Mr. Bunton pushed
either of the two stop buttons before the injury, he would have heard a distinct release of
air pressure from the machine and observed the pipes stop rolling. He did not hear or see
any indication that the machine was stopped before the injury. He also pointed to a
certain section of the machine that reacted when Mr. Bunton actually pushed the e-stop
button.

        Mr. Manley additionally testified about the beller in detail, pointing out in
photographs the parts where Mr. Bunton's hand became trapped. He indicated that the
actual trap point occurred behind a safety guard, so Mr. Bunton had to exert some effort
to get his hand to that point.

       The video of the accident showed the sequence of events in a lower right-hand
comer enlarged section of the screen, zeroing in on the events leading up to the injury
and following.      The crucial timeframe was between 6:27:40 and 6:28:00 A.M.
Significantly, the video did not show Mr. Bunton hitting a button on a touch screen or an
e-stop before placing his hand in the beller. Mr. Conley identified a moving clamp
immediately before the accident, which he said means the machine was still in automatic
mode.

       After Mr. Bunton's hand became trapped, Mr. Manley, Mr. Conley and others
came to his immediate aid. Their attempt to remove Mr. Bunton's hand manually caused
further injury. His hand remained entrapped for approximately one and one-half hours.

                                            2
Mr. Manley testified that, during the extraction, Mr. Bunton "told me that he just thought
he had it timed to where he could get could get in there and get his hand out in time."
According to Mr. Manley, a day or two later at the hospital, Mr. Bunton said, "He knew it
was his fault," and, "He just thought he'd be able to get to it before the cycle had
finished." Mr. Conley similarly testified that, at the hospital visit, Mr. Bunton told them
"he thought he had it timed out right ... to get his hand out in time." Mr. Bunton
explained he meant he was waiting for the pipe heaters to retract so as not to disrupt
production. Both Mr. Manley and Mr. Conley testified that Mr. Bunton did not say he hit
stop before the accident.

       As for his training, Mr. Bunton testified he received two days of one-on-one
training when he was first hired, including safety training. He acknowledged Sanderson
Pipe "did a pretty good job" training him, and he knew the safety rules. Both Mr. Manley
and the facility manager, Chris Kiser, trained him on the proper procedure for cleaning
the drain. The proper procedure required stopping the machine, either via the e-stop or
the automatic stop on the touchscreen.

        Sanderson Pipe introduced several documents to support its assertion that Mr.
Bunton appreciated the danger involved in violating safety rules. Mr. Bunton conceded
that he received and signed a "Safety Memo," which states "employees are prohibited
from placing any body part into machinery that starts automatically. This memo serves
as a written policy that is to be followed to the letter." In addition, a "Plant-Wide Hazard
Analysis" states, "There are parts on every section of the production lines that are moving
where you could get your hand or finger caught in between and gets [sic] pinched." Mr.
Bunton signed a document stating that he reviewed and received a copy of it. Likewise,
he signed an acknowledgement that he received a copy of the instruction manual for the
machine, stating that he read and understood the instructions, including a warning about
inserting body parts into moving machinery. Mr. Bunton testified that he understood the
danger of placing his hand inside moving machinery. Mr. Bunton further acknowledged
that the beller had four large "caution" signs.

        Sanderson Pipe produced four written reprimands to demonstrate that it enforced
this rule. Mr. Bunton received two of them, in January 2016 and September 2015. As
for the January 2016 write-up, it does not mention that he stopped the beller before
placing his hand inside it. The 2015 violation was for "[p ]lacing hand on moving parts of
machinery causing injury to finger." Mr. Bunton explained that he was loading gaskets
on a moving machine, and he followed proper procedure. However, Mr. Manley testified
that he believed Mr. Bunton violated the rule. As for the other write-ups, Mr. Kiser
acknowledged that he received one for placing a body part in moving machinery.
Sanderson also introduced a write-up for Billy Raulerson for violating the rule.

      Sanderson Pipe denied Mr. Bunton's claim shortly after the accident, providing no
workers' compensation benefits.

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        Mr. Bunton's injury resulted in the amputation of his left index finger, arthrodesis
of his middle finger, fracture to his wrist and laceration to his ring finger. He required
extensive treatment and did not reach maximum medical improvement for the hand injury
until January 9, 2017. Mr. Bunton underwent an independent medical examination with
Dr. Steven Neely, who placed a thirteen-percent impairment rating to the body as a
whole. Dr. Neely further found the past treatment and bills associated with it reasonable
and necessary. In addition, Mr. Bunton underwent an independent medical examination
with Dr. Gregory Kyser regarding his alleged psychiatric impairment. Dr. Kyser
assigned a five-percent impairment. Sanderson Pipe did not dispute Dr. Neely's findings
but challenged Dr. Kyser's, although it did not introduce any expert proof to rebut his
opmwn.

                       Findings of Fact and Conclusions of Law

        Mr. Bunton has the burden of proof on all essential elements of his claim. Scott v.
Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18,
20 15). "[A]t a compensation hearing where the injured employee has arrived at a trial on
the merits, the 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, 2015 TN Wrk. Comp.
App. Bd. LEXIS 42, at *18 (Nov. 9, 2015).

       The parties stipulated that Mr. Bunton sustained an injury by accident arising
primarily out of and in the course and scope of employment, subject to Sanderson Pipe's
affirmative defense of willful misconduct under Tennessee Code Annotated section 50-6-
110(a)(l). Under section 50-6-110(b), the burden of proof falls on Sanderson Pipe to
establish its defense. To prevail on its affirmative defense, Sanderson Pipe has the
burden of establishing 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." Roper v. Allegis
Grp., 2017 TN Wrk. Comp. App. Bd. LEXIS 14, at *7 (Feb. 10, 2017).

       Turning to the first and second factors, Mr. Bunton testified that he knew
Sanderson Pipe's safety rules and specifically that it prohibited placing body parts in
moving machinery. He also signed acknowledgements of the Safety Memo and the
Hazard Analysis, both of which contain variations of the written rule. The Court finds
that Mr. Bunton knew the rule. Mr. Bunton also testified that he understood the hazards
of placing body parts in machinery while in operation, and he agreed that he read and
understood the Safety Memo, Hazard Analysis and beller instruction manual. The Court
finds he understood the danger involved in violating the rule.

      Third, the Court finds that Sanderson Pipe engaged in bona fide enforcement of

                                             4
the rule, both before and after Mr. Bunton's injury. Mr. Bunton disputed whether it
applied to his October 2015 incident; regardless, Sanderson Pipe unquestionably enforced
it against Mr. Raulerson, Mr. Kiser, and Mr. Bunton for the January 2016 accident.

       As for the fourth factor, Mr. Bunton claimed he did not violate the rule because he
turned the machine off before placing his hand inside. However, the Court cannot find
that Mr. Bunton stopped the beller before the accident. Mr. Bunton's testimony is
inconsistent with the statement he gave the investigator. The Court is further persuaded
by the credible testimony of Mr. Manley and Mr. Conley, who both stated that Mr.
Bunton said he thought he "timed it right," and that he never told them he stopped the
machine before the accident. Moreover, Mr. Conley testified that he did not see or hear
the beller stop. But perhaps the most persuasive evidence is the video, where, to the
Court's viewing, Mr. Bunton bypassed the computer screen and e-stop without a glance
and proceeded to insert his hand inside the machine.

        Alternatively, Mr. Bunton asserted that he did not intend to leave the beller
running when he placed his hand inside it. Citing Roper, he argued that the Court should
not merely apply the four-factor test, above, but it should also focus on the "willfulness"
of his actions. Mr. Bunton asserted he did not "intentionally" decline to follow the safety
rule, but rather he was either victim to a "freak accident" when the machine started up on
its own, or he "made a careless mistake at the end of a twelve-hour shift."

       The Court disagrees with this interpretation of Roper.        The Appeals Board
explained:

       [T]he Supreme Court in Mitchell [v. Fayetteville Pub. Utils., 368 S.W. 442
       (Tenn. 2012),] reinforced longstanding precedent that an employee's
       negligent or reckless actions generally are not enough to defeat a claim for
       workers' compensation benefits. In seeking to establish the fourth element
       of the Mitchell test, an employer must come forward with evidence that the
       employee intended to take the action that violated the known safety rule
       without a valid excuse.

2017 TN Wrk. Comp. App. Bd. LEXIS 14, at *11-12 (emphasis in original.) Thus,
Sanderson Pipe must produce evidence that Mr. Bunton intended to take the action that
violated the known safety rule without a valid excuse. The Court holds it did, based
again on a viewing of the video but also on Mr. Manley's testimony about the effort
required for Mr. Bunton to place his hand where the injury occurred. The Court finds
Mr. Bunton intended to place his hand inside the moving machine in violation of the
safety rule, and he offered no valid excuse for doing so.

       Therefore, this Court holds that Sanderson Pipe established, by a preponderance of
the evidence, that Mr. Bunton willfully failed to follow a safety rule. Mr. Bunton's claim

                                            5
for workers' compensation benefits is denied.

                                   Alternative Findings

       Solely in the event that an appellate body finds error in the compensability
holding, the Court makes the following alternative findings for the sake of judicial
economy. See Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 137-138 (Tenn. 2001).
("The trial court should . . . hear the entire case and make appropriate findings of fact,
and alternative findings when necessary, for appellate review.")

       The Court holds in the alternative that Mr. Bunton suffered a thirteen-percent
physical impairment and a five-percent psychiatric impairment. Therefore, according to
the American Medical Association Guides to the Evaluation of permanent Impairment,
Sixth Edition, Appendix A Combined Values Chart, he suffered a seventeen-percent
impairment to the body as a whole, for purposes of computing an award or permanent
partial disability benefits. As for temporary total disability benefits, he reached
maximum medical improvement on January 8, 2017. Mr. Bunton's compensation rate is
$459.13. Further, all past treatment, and the resulting bills, were reasonable and
necessary.

   IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Bunton's claim is denied on the ground of compensability.

   2. Sanderson Pipe shall pay the $150.00 filing fee under Tennessee Compilation
      Rules and Regulations 0800-02-21-.07 (2016) within five days of entry of this
      order.

   3. Sanderson Pipe shall file an SD-1 within five days of entry of this order.

   4. Absent an appeal of this order, it shall become final thirty days after issuance.




      ENTERED Aprilll, 2018.




                                             6
                                         Court of Workers' Compensatio



                                              APPENDIX

EXHIBITS: Employee
   A. Standard Form Medical Report C-32 with attachments (25 pages)
   B. Deposition of Greg Kyser, M.D. with exhibits

EXHIBITS: mployer
  A. Sanderson Pipe Safety Memo (2 pages)
  B. Sanderson Pipe Corporation Plant-Wide Hazard Analysis (3 pages)
  C. Training Log
  D. Owners Instructions and Information (40 pages)
  E. Collective Photographs ( 19)
  F. Video of accident
  G. Corey Bunton Personnel File, Home Depot (37 pages)
  H. Transcript of Recorded Statement of Corey Bunton (27 pages) 2
     H.1. Audio recording.
  I. Sanderson Pipe Corporation training confirmation
  J. First Report of Injury
  K. Wage statement
  L. Notice of denial
  M. Safety Department-Accident Investigation Report
  N. Sanderson Pipe job description (3 pages)
  0. Employee's Responses to Interrogatories
  P. Deposition of Corey Bunton and Exhibits
  Q. Sanderson Pipe Corporation Notice of Violation of Rules, Policies or Procedures
     for Corey Bunton (9/28/15 and 1/8/16), Chris Kiser (8/3/06) and Billy Raulerson
     (6/9/08)
  R. Witness Statements: Joshua Hogan, Jason Manley, Brandon Conley (5 pages)


2
 Mr. Bunton objected to the admissibility of this document at the compensation hearing. The Court
overruled the objection because the parties stipulated to the admissibility of all documents at the Pretrial
Conference.

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    5.   Petition for Benefit Determination, March 1, 20 17 3
    6.   Dispute Certification Notice, Apri117, 2017
    7.   Employer's Pre-Compensation Hearing Brief with Exhibits
    8.   Joint Pre-Compensation Hearing Statement (without Exhibits)




3
 The previous practice of the Court of Workers' Compensation Claims and Mediation and Ombudsman
Services of Tennessee for parties to schedule post-discovery mediation required the filing of a second
petition for benefit determination.

                                                  8
                         CERTIFICATE OF SERVICE

       I certify that a copy of the Compensation Hearing Order was sent to these
recipients by the following methods of service on Aprilll, 2018.

Name                     Certified   Via         Via      Service sent to:
                          Mail       Fax        Email
Zach Wiley,                                       X       zwiley@fortheueogle .com
Employee's attorney                                       rnlucas@fmtheoeople.com
Cate Dugan, Employer's                            X       cate@getersonwhite.com
attorney




                                               enn~    'hrum, Clerk of Court
                                                      c.courtcJerJ @tn.gov




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