                                                                                            FILED
                                                                                           Sep 25, 2019
                                                                                          07:15 AM(CT)
                                                                                        TENNESSEE COURT OF
                                                                                       WORKERS' COMPENSATION
                                                                                              CLAIMS




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

FREDERICK JOHNSON,                                     )   Docket No. 2018-08-1394
         Employee,                                     )
v.                                                     )
ENTERPRISE RENT-A-CAR,                                 )   State File No. 63023-2018
         Employer,                                     )
and                                                    )
FARMINGTON CASUALTY CO.,                               )   Judge Deana C. Seymour
         Carrier.                                      )


                                 EXPEDITED HEARING ORDER


        The Court convened an Expedited Hearing on August 30, 2019, to decide Mr.
Johnson’s entitlement to medical and temporary disability benefits. Enterprise denied
benefits, alleging that Mr. Johnson’s injuries resulted from prohibited “horseplay” that
constituted willful misconduct. For the reasons below, the Court holds that Mr. Johnson
is likely to prevail at a hearing on the merits and grants his requested benefits. 1

                                            History of Claim

       Mr. Johnson testified he worked for Enterprise as a service technician. On August
20, 2018, he noticed a dollar coin on the floor of the wash bay. As his co-worker, Brikena
Dimce, backed a van from the bay, Mr. Johnson yelled, “Don’t run over the dollar.” She
stopped and opened her door. Mr. Johnson gestured toward the coin and told Ms. Dimce
that he intended to get the dollar, but then he told her to go on. Before she closed her
door, Ms. Dimce mistakenly “hit the gas” and struck Mr. Johnson.

       Upon learning of the accident, Manager DeAnthony Smith went to the wash bay.
He discovered Mr. Johnson somewhat unresponsive, bleeding, and lying four to five feet
from the front driver’s side of the van. He called 9-1-1, and an ambulance transported Mr.
Johnson to Regional One Hospital.

1
    The parties stipulated to a weekly compensation rate of $155.04.
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       According to hospital records, Mr. Johnson suffered scalp and facial lacerations,
cervical fractures, and disk extrusions at two levels. He received medication and physical
therapy and was discharged on August 29. 2

       Mr. Johnson followed up twice with Dr. Fredrick Pharr. Dr. Pharr took him off
work from September 20 to October 20, but Mr. Johnson did not resume work until
November 6. He worked until March 16, 2019, when he decided he could no longer do
his job. As a result, Enterprise terminated him for job abandonment.

      Enterprise denied Mr. Johnson’s claim, contending that his injuries resulted from
horseplay involving a prank he played on Ms. Dimce as she backed from the wash bay.
He gestured and yelled, “You hit Darla” (their co-worker). According to Enterprise, Mr.
Johnson’s actions panicked Ms. Dimce, and she mistakenly pushed the gas, striking Mr.
Johnson.

       Mr. Smith testified that he told Mr. Johnson of Enterprise’s horseplay rule during
orientation. He described Mr. Johnson as a good employee who did his best and liked to
make others laugh. Mr. Smith did not witness the accident. He knew of no other incident
where Mr. Johnson engaged in horseplay, and he did not discipline Mr. Johnson after the
accident. Following the accident, Mr. Smith searched for but could not find the coin Mr.
Johnson described. He admitted someone could have picked up the coin without his
knowledge.

       Ms. Dimce testified she began working for Enterprise a month before the accident.
She stated that Albanian was her native language, and she had English language barriers.
Ms. Dimce testified Mr. Johnson was kind, helpful, and never pranked her before the
accident. He helped Ms. Dimce with her English and her driving skills.

       Ms. Dimce testified the accident occurred as she began backing from the wash
bay. She understood Mr. Johnson to yell “You hit Darla” and saw him walking toward
the front of the van, pointing behind it. Ms. Dimce panicked, opened her driver’s door to
look behind the van, and accidently hit the gas instead of the brake. The van’s front
driver’s side door hit Mr. Johnson and knocked him into a pole.

       At first, Ms. Dimce thought Mr. Johnson was “playing with her” as Darla worked
inside the shop. However, when she visited Mr. Johnson in the hospital, he told her he
was trying to tell her about a dollar coin lying on the ground behind the van. Ms. Dimce
was unsure whether Mr. Johnson said “dollar” or “Darla.” She said she had no reason not

2
  The emergency physician referred Mr. Johnson to a rehabilitation facility, but Enterprise denied
treatment.


                                                2
to believe Mr. Johnson said “dollar.” She also agreed the incident was an accident and
nobody meant for it to happen.

       Enterprise introduced a statement from Matt Sumler, who was installing a
windshield for Enterprise when the accident occurred. Mr. Sumler reported he saw Ms.
Dimce back from the wash bay and Mr. Johnson yell from the front of her van.
According to Mr. Sumler, Ms. Dimce struck Mr. Johnson when he jokingly ran behind
the van and bent over to act like Ms. Dimce hit something.

       Mr. Johnson responded with testimony that he did not “prank” Ms. Dimce, and he
understood the importance of prohibiting horseplay for employee safety. He testified Ms.
Dimce misunderstood him and accidently pressed the gas resulting in the accident and his
injuries.

                          Findings of Fact and Conclusions of Law

       Mr. Johnson must prove the essential elements of his claim. Scott v. Integrity
Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). He
must present sufficient evidence that he is likely to prevail at a hearing on the merits.
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*9 (Mar. 27, 2015).

       Enterprise does not dispute that the incident occurred and Mr. Johnson was injured
but argues the injury was the result of non-compensable “horseplay.” The Tennessee
Supreme Court characterized horseplay resulting in injury as willful misconduct. Roberts
v. Kroger Co., 832 S.W.2d 538, 541 (Tenn. 1992). Under Tennessee Code Annotated
section 50-6-110(a)(1) (2018), no compensation shall be allowed for an injury due to an
employee’s “willful misconduct.”

        In Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442, 453 (Tenn. 2012), the high
court outlined the following four-point analysis of willful misconduct: (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.

       Applying these factors, the Court finds Mr. Johnson had notice that Enterprise
prohibited horseplay, demonstrated by his own admission and the testimony of his
supervisor. Mr. Johnson also said he understood the danger involved in horseplay at
Enterprise. Although Mr. Smith said he disciplined employees engaged in horseplay, the
Court finds he spoke in generalities and later confirmed he never disciplined Mr. Johnson
for horseplay before or after the incident. Further, common sense dictates that a horseplay
defense does not apply if an employer failed to prove horseplay occurred.


                                            3
       The Court recognizes that credibility is an integral issue in this case and finds Mr.
Johnson, Ms. Dimce, and Mr. Smith credible witnesses. They testified calmly and
confidently and were reasonable and forthcoming. See Kelly v. Kelly, 445 S.W.3d 685,
694-95 (Tenn. 2014). Mr. Sumler’s statement, in contrast, is suspect, as it portrayed a
completely different account from the other witnesses and placed Mr. Johnson behind the
van. None of the other witnesses placed him there. Ms. Dimce and Mr. Johnson described
impact by the driver’s door. Although Mr. Smith did not observe the impact, he located
Mr. Johnson on the bay floor four or five feet to the side of the driver’s door. The Court
finds Mr. Sumler’s statement lacks credibility and gives it no weight.

       Based on all the evidence, the Court cannot conclude that Mr. Johnson’s injuries
resulted from horseplay. The evidence established his injuries resulted from Ms. Dimce’s
improper driving and a miscommunication: he said “dollar,” and she thought he said
“Darla.” Enterprise failed to prove Mr. Johnson engaged in willful misconduct. Thus, the
Court finds Mr. Johnson is likely to prevail at a hearing on the merits.

        Mr. Johnson established entitlement to the medical expenses he incurred for
treatment of his injuries. After his supervisor called 9-1-1, an ambulance transported him
to the hospital, where he remained until August 29. According to his medical records, Mr.
Johnson sustained substantial lacerations to his face and head, fractured vertebrae, and
disk extrusions. The medical records also contain two follow-up visits, September 20 and
October 4, for his work injuries. 3 The medical expenses Mr. Johnson incurred for his
injuries are justified, reasonable and necessary. The Court finds Mr. Johnson is likely to
prevail at a hearing on the merits regarding entitlement to payment of his medical bills.

       To receive temporary disability benefits, Mr. Johnson must show (1) he became
disabled from work due to a compensable injury; (2) a causal connection exists between
the injury and his inability to work; and (3) the specific duration of his disability. Jones v.
Crencor, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015).

       Here, the medical proof established Mr. Johnson received inpatient care from
August 20 to August 29 and was excused from work from September 20 to October 20
for a total of five weeks and five days. Therefore, the Court holds Mr. Johnson proved
entitlement to $885.95 in temporary total disability at this time. (Five weeks x $155.04 =
$775.20, and five days x $22.15 per day = $110.75 ). 4

IT IS, THEREFORE, ORDERED as follows:

3
  The Court accepted the medical bills submitted by Mr. Johnson for identification only. However, the
Court finds the dates of service correspond with his hospital stay and first follow-up visit. Thus, the Court
allows the bills marked exhibit 3 into evidence for the limited purpose of reconciling the dates of service
to the medical expenses Mr. Johnson claims.
4
    Mr. Johnson did not prove work status from August 30 until September 19.
                                                     4
1. Enterprise shall pay for reasonable and necessary medical care Mr. Johnson
   incurred for inpatient treatment from August 20 to August 29, 2018, and two
   follow-up visits on September 20 and October 4 under Tennessee Code Annotated
   section 50-6-204.

2. Enterprise shall provide Mr. Johnson a panel of physicians from which he may
   select an authorized treating physician for reasonable and necessary treatment of
   his work-related injuries under Tennessee Code Annotated section 50-6-
   204(a)(1)(A).

3. Enterprise shall pay Mr. Johnson temporary total disability benefits of $885.95
   under Tennessee Code Annotated section 50-6-207(1)(A).

3. This case is set for a Status Hearing on November 4, 2019, at 9:00 a.m. Central
   Time. You must call 615-532-9550 or toll-free at 866-943-0014 to participate
   in the Hearing. Failure to call might result in a determination of the issues
   without your participation.

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 via email at
   WCCompliance.Program@tn.gov.

          ENTERED September 25, 2019.



                                    ___________________________________
                                      JUDGE DEANA C. SEYMOUR
                                      Court of Workers’ Compensation Claims




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                                         Appendix

Exhibits:
   1.     Regional One medical records
   2.     Regional One record dated September 20, 2018
   3.     Regional One bills (Collective) (ID only/limited purpose)
   4.     Drawing of car and scene from Mr. Johnson’s deposition
   5.     Drawing of car and scene from Ms. Dimce’s deposition
   6.     Declaration of Matt Sumler
   7.     Mr. Johnson’s responses to Enterprise’s Request for Admissions

Technical Record:
  1.    Petition for Benefit Determination
  2.    Dispute Certification Notice
  3.    Request for Expedited Hearing with Mr. Johnson’s Affidavit
  4.    Agreed Order Continuing Expedited Hearing Date
  6.    Employer’s Tenn. Comp. R & Regs. 0800-02-21-.14(b) Disclosures
  7.    Employer’s Expedited Hearing Brief
   8.   Employee’s Pre-Expedited Hearing Submissions
   9.   Order on Enterprise Rent-A-Car’s Motion to Compel Discovery

                             CERTIFICATE OF SERVICE

        I certify a copy of this Order was sent to the parties as indicated on September 25,
2019.

 Name                        Certified   Via        Via    Service sent to:
                              Mail       Fax       Email
 Emily Bragg,                                        X     ebragg@forthepeople.com
 Employee’s attorney
 Chris Rowe,                                        X      cgrowe@mijs.com
 Employer’s attorney



                                           ______________________________________
                                           Penny Shrum, Court Clerk
                                           Court of Workers’ Compensation Claims
                                           wc.CourtClerk@tn.gov




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