                                                                                   FILED
                                                                                 Dec 06, 2019
                                                                                10:03 PM(CT)
                                                                              TENNESSEE COURT OF
                                                                             WORKERS' COMPENSATION
                                                                                    CLAIMS




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

Michael Stewart,                             )   Docket No. 2019-06-0815
            Employee,                        )
v.                                           )
Don Kennedy Roofing,                         )   State File No. 23463-2019
           Employer,                         )
And                                          )
American Cas. Co. of Reading, P A,           )   Judge Kenneth M. Switzer
           Carrier.                          )


       EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF


       Michael Stewart filed a Request for Expedited Hearing challenging the denial of
his workers' compensation claim. The present focus of this case is whether Mr. Stewart
suffered an injury when he allegedly fell at work. After an expedited hearing on
December 3, 2019, the Court holds Mr. Stewart is unlikely to prevail at a hearing on the
merits and denies the requested relief.

                                    History of Claim

       Mr. Stewart testified that on March 26, 2019, he arrived at work at approximately
5:46 a.m., used an employee entrance to the left side of the main entrance near a gate, got
some coffee and then went to the restroom. He slipped on "something wet" on the
restroom floor, fell and hit his left shoulder. In response to the Court's questioning, Mr.
Stewart clarified he went to the restroom on the side of the building near the employee
entrance he used.

       According to Mr. Stewart, about eight or nine minutes later, he saw Tom Burns, a
superintendent, and told him about his fall. Mr. Burns responded that he was busy and
walked into his office. Mr. Stewart then saw Bill Childress, the safety director, and told
him about the fall, but Mr. Childress likewise said he was busy and would talk to him
later.


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       A few minutes later, per Mr. Stewart, Mr. Childress said he and Mr. Bums wanted
to meet with him. They went to a large conference room, where Mr. Childress and Mr.
Burns terminated Mr. Stewart.

       Mr. Stewart testified that he sought emergency treatment on his own two days
later but introduced no records of that treatment.

       Don Kennedy Roofing denied the claim, arguing Mr. Stewart did not fall in the
bathroom as described. It relied on the testimony of Mr. Childress and Mr. Burns.
Specifically, Mr. Childress denied having a conversation with Mr. Stewart before they
fired him and added that Mr. Stewart did not report a fall in the restroom during the
termination meeting. Mr. Burns's testimony was equivocal. He testified on direct
examination that Mr. Stewart neither reported a fall in the bathroom before the
termination meeting nor did he mention it during the meeting. However, on cross-
examination, he said he did not remember speaking with Mr. Stewart about a fall in the
bathroom.

       Much of the testimony revolved around videos from various vantage points inside
the building on the morning at issue. Mr. Stewart did not object to the admissibility of
the videos. Mr. Childress stated that Don Kennedy Roofing has forty-one or forty-two
surveillance cameras. Mr. Childress stated repeatedly that the video shows Mr. Stewart
using the main entrance, but it does not; it shows Mr. Stewart walking down the front
hallway. Mr. Stewart denied using the front entrance.

       The footage, time-stamped 5:58:30 a.m., shows Mr. Stewart in the front hallway,
turning left, and walking down another hall. At 5:59:30, Mr. Stewart entered the work
kitchen. Once inside, he got a cup of coffee at approximately 6:00:40. The video then
shows Mr. Burns and Mr. Childress back in the hallway. They looked into a room, then
turned around and walked in the other direction until they entered the large conference
room at 6:02:45. Mr. Bums, Mr. Childress and Mr. Stewart talked for approximately two
minutes. The video then shows Mr. Childress escorting Mr. Stewart toward the main
entrance in the front hallway.

       Mr. Childress testified that he and an IT staffer assembled the video from the
various cameras in the facility. He stated that he reviewed all the videotape, but no other
footage showed Mr. Stewart was at Don Kennedy Roofing until 5:58 that morning, and
therefore the other video was not "relevant." Mr. Childress said the only conversation he
had with Mr. Stewart was in the large conference room when they fired him.

      Mr. Stewart countered that employees generally do not use the front entrance
because it is locked at that time; Mr. Childress said that entrance automatically unlocks at
5:30a.m. Mr. Stewart also questioned the reliability of the video generally, arguing that
Don Kennedy Roofing only provided footage favorable to its position.

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                       Findings of Fact and Conclusions of Law

       Mr. Stewart, as the employee, 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, 2015). At an expedited hearing, he must show that he is likely to
prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2019);
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*7-8, 9 (Mar. 27, 2015).

        Mr. Stewart seeks medical benefits for an alleged injury to his shoulder. An
employer must provide, free of charge to the employee, medical treatment made
reasonably necessary by accident "as defined in this chapter." Tenn. Code Ann. § 50-6-
204(a)(l)(A). Therefore, the Court looks to the statutory definition of "injury" to
determine whether Mr. Stewart's shoulder injury falls within it. Tennessee Code
Annotated section 50-6-102( 14) defines "injury" as an "injury by accident . . . arising
primarily out of and in the course and scope of employment, that causes ... the need for
medical treatment." Further, an injury is accidental only if"caused by a specific incident,
or set of incidents, arising primarily out of and in the course and scope of employment,
and is identifiable by time and place of occurrence[.]" !d. at (14)(A).

       Here, Mr. Stewart provided his account of the accident regarding how he fell in
the restroom and the events immediately preceding it. In contrast, Mr. Bums and Mr.
Childress denied Mr. Stewart ever told them he fell in the restroom. In addition, they
relied on videos to bolster their assertion that Mr. Stewart did not arrive at work that
morning until 5:58a.m. and never entered the restroom for the brief time he was in the
building.

       Considering the conflicting testimony, the Court finds it troubling that, by his own
admission, Mr. Childress and a coworker edited the video to include only portions that he
considered "relevant." However, the Court may only take into account the evidence
before it. In that regard, the videos clearly show Mr. Stewart walking down the hallway
near the main entrance at 5:58 a.m. Importantly, while Mr. Stewart questioned
repeatedly why Don Kennedy Roofing did not present video from earlier that morning, he
made no effort to obtain it or introduce it into evidence. The Court also finds it
significant that Mr. Stewart did not testify as to why he was in the hallway near the main
entrance at that time.

        In sum, the Court cannot find that Mr. Stewart presented sufficient evidence that
he is likely to prevail at a hearing on the merits.



                                             3
IT IS ORDERED as follows:

   1. The Court denies Mr. Stewart's request for relief at this time.

   2. This case is set for a scheduling hearing on February 3, 2020, at 10:45 a.m.
      Central. You must call 615-532-9552 or toll-free at 866-943-0025 to participate.
      Failure to call might result in a determination of the issues without your
      participation.

      ENTERED December 6, 2019.




                                  Court of Workers' Compensation

                                      APPENDIX

Exhibits:
   1. Affidavit
   2. Work restrictions-Identification only
   3. Denial
   4. Videotape
   5. Text messages
   6. Photo of main entrance to Don Kennedy Roofing
   7. Floor plan of Don Kennedy Roofing

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Show Cause Order
   4. Order on Show Cause Hearing
   5. Request for Expedited Hearing
   6. Employer and Carrier's Witness and Exhibit List
   7. Expedited Hearing Statement of Employer and Carrier




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                          CERTIFICATE OF SERVICE

     I certify that a copy of the Expedited Hearing Order was sent as indicated on
December 6, 20 19.

Name                     Certified Regular   Email   Sent to:
                         Mail      Mail
Michael Stewart, Self-       X                 X     9953mike@gmail.com
Represented Employee                                 Ill Hoffman Pl.
                                                     Madison TN 37115
David Deming,                                  X     ddeming@man ierherod .com
Employer's Attorney




                                                , Clerk of Court
                                               rkers' Compensation Claims
                                     WC.CourtClerk@tn.gov




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