               TENNESSE BUREAU OF WORKERS' COMPENSATION
             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT CHATTANOOGA

Wilfredo Resto,                                             )   Docket No.: 2017-01-0135
            Employee,                                       )
v.                                                          )
Chattanooga Bakery, Inc.,                                   )   State File No.: 7907-2017
             Employer,                                      )
And                                                         )
Presidio Insurance, LTD,                                    )   Judge Thomas Wyatt
             Insurance Carrier.                             )


       EXPEDITED HEARING ORDER FOR MEDICAL AND TEMPORARY
                   PARTIAL DISABILITY BENEFITS


        This claim came before the Court on May 26, 20 17, for an Expedited Hearing
requested by Wilfredo Resto. The focal issue is whether Mr. Resto's claim is barred by
his alleged willful violation of safety rules and failure to utilize safety equipment. For the
reasons set forth below, the Court finds Mr. Resto is entitled the medical and temporary
partial disability benefits.

                                             History of Claim

       Mr. Resto is a thirty-nine-year-old Spanish-speaking United States citizen 1
residing in Chattanooga, Hamilton County, Tennessee. On January 26, 2017, he
sustained injuries to multiple fingers, including amputations of the tips of two fmgers of
his dominant right hand, while cleaning a sheeting machine at Chattanooga Bakery, Inc.
(the Bakery). While the Bakery did pay for the emergent care of Mr. Resto's injury, it
denied his claim on the basis his injuries resulted from his own willful misconduct in
cleaning the machine while it was in operation and unguarded.



1
  Mr. Resto testified he was not certain where he was born because his parents moved often. During the hearing, he
testified he thought he was born in Puerto Rico. However, during a recorded statement, he stated he was born in
North Carolina.

                                                        1
        The Bakery produces Moon Pie pastries. Its human resources manager, Terry
Humphreys, Jr., testified the sheeting machine is about half the size of a Greyhound bus.
Dough enters the machine on an approximately one-hundred-foot-long conveyor belt and
is rolled thin and cut into cookies while in the machine. Mr. Humphreys explained that
the process of cleaning the machine occurs on the non-operator, or back side, of the
machine, where a removable metal housing encases the moving parts. Mr. Humphreys
testified the housing on the back of the machine acts as a safety device for sanitation
workers, such as Mr. Resto.

       According to Mr. Humphreys, the cleaning process in which Mr. Resto engaged
included the use of a cylinder that directs a gas flame to bum off cloth threads that
accumulated on the conveyor belt. The sanitation worker must bum threads while the
machine is running because sections of the conveyor belt are inaccessible when the
machine is off. Mr. Humphreys testified the sanitation worker can bum threads without
removing the housing if he does so at the location where the conveyer belt exits the
interior of the machine.

       Mr. Humphreys stated the cleaning process also involved sanitizing the moving
parts of the machine after the removal of excess dough. This process required the
sanitation worker to remove the housing to access the parts. Mr. Humphreys testified the
sanitation worker should perform this operation after someone turns off the machine
following a lock out/tag out procedure.

       The Bakery submitted evidence showing that, on February 15, 2015, Mr. Resto
received training on th written poljcies governing the cleaning of the sheeting machine.
This training consisted of his reading and signing typed instructions written in Sparush.2
(Ex. 7 at 1-3.) These written procedures list the first step as "[l]ock and tag out sheeter."
However, the procedures address nothing at all about the process of burning threads, nor
do they inform the sanitation worker as to when the worker should remove the housing at
the back of the machine.

        The Bakery's submissions also indicate Mr. Resto received general safety
training, including training on lock out/tag out procedures and the use of safety devices,
on October 6 and 24, 2016. (Ex. 7 at 10, 14.) This training consisted of Mr. Humphreys
reading the English text of the document aloud, after which a Spanish-speaking
supervisor interpreted the text in Spanish. (Ex. 7 at 8-14.) Among the two pages of
small-print, single-spaced, text allegedly recited to Mr. Resto was the following
language:




2
 Neither side presented evidence on Mr. Resto's reading proficiency, although Mr. Resto did testify he has a third-
grade education.

                                                        2
               All moving equipment within your workplace is subject to laws
        requiring physical guards to protect you from injury from coming into
        contact with moving parts of machinery, including moving belts, shafts,
        gears, pulleys, etc. You are not to operate equipment, which is not
        sufficiently guarded[.]

       The Bakery also gave Mr. Resto a sixty-five-page Employee Handbook that
contains the following safety rule: "Before starting, operating, or working around
machinery, be certain that no hazards exist and that ALL GUARDS ARE IN THEIR
PROPER PLACE. Do not, under any circumstance, remove guards while the machine is
in operation.'' The Bakery came forward with no evidence that it recited this rule to Mr.
Resto in Spanish or that Mr. Resto actually read it. Mr. Humphreys stated that he had not
observed Mr. Resto's work practices to judge his compliance with the described training.

       Mr. Resto testified he began working at the Bakery a little less than two years
before the date of injury. For the first nineteen months, the bakery assigned him to clean
the sheeting machine. He stated he received on-the-job training for a couple of days
before he began cleaning the machine himself. Mr. Resto did not mention the training
described by Mr. Humphreys when testifying about the training he received.

      In October 2016, the bakery assigned Mr. Resto to clean another machine, but
because of insufficiencies in his performance it reassigned him to the sheeting machine
approximately four weeks before the date of injury. Mr. Resto testified that, before
October 2016, he performed all cleaning functions, including burning threads, with the
machine turned off. He stated that, upon his reassignment, his supervisor instructed him
to bum the threads from the conveyor belt while the machine was running. In a recorded
statement he gave a month after his injury, Mr. Resto described the changed instruction in
more detail as follows:

                There is this thread that gets stick [sic] in the band of the machine
         sometimes. So, they got mad at me because they found a piece of thread
         hanging so they told me from now one [sic] I had to clean the whole roll,
         clean the bands before brushing[.]

                                        ***
                Like I told you before, they told me the belt had to be running to
         be able to clean the thread. But that is not the proper way to do it
         because I've worked [on the sheeting machine] for one year and eight
         months and we've never done that before. They told me that if I wanted
         to keep my job we would do it that way so I agreed.

(Ex. 4 at 8, 12.)

                                              3
       Mr. Resto testified that he questioned his supervisor, Jesus Lopez, about why he
needed to bum threads with the machine running. Mr. Lopez told him to do as instructed
or risk losing his job. Mr. Resto testified he complied with these instructions until the
date of injury. When asked on cross-examination why he took the housing off to bum
threads, Mr. Resto testified the Bakery had trained him to remove the housing to clean
the machine. He further stated in response to this line of questioning that he had to take
the housing off to clean the machine.

       On the date of injury, Mr. Resto was burning threads with the machine running in
compliance with the Bakery's instructions. He laid his cylinder to the side and reached to
pick up some loose dough near the conveyor belt. When asked during the recorded
statement why he tried to remove dough while burning the threads with the machine
running, Mr. Resto stated, "I just cleaned some of the dought [sic], but like I told you, I
never thought that would happen, since I was just clening [sic] a little bit, but we weren't
actually cleaning the machine [at the time I was injured.]" (Ex. 4 at 14.)

       When Mr. Resto picked up the dough, the little, ring and middle fmgers of his
right hand contacted the chain that operates the conveyor belt. He attempted to extricate
his fingers with his left hand, but the moving chain fractured his left index finger. He
screamed for help, and a co-worker stopped the machine. A mechanic had to cut the
chain to disentangle Mr. Resto's fmgers from the machine.

       Mr. Resto received emergent care for his injuries at Erlanger Medical Center,
where he underwent surgery including amputation of the tips of the ring and middle
fingers on his right hand and the placement of a pin in his fractured left index finger. The
discharge papers Mr. Resto received from Erlanger instructed him: "Do not use hands for
anything." (Ex. 12.)

       Mr. Resto came under the care of Dr. Philip Sutherland at Clinica Medicos after
the Bakery denied his claim. Dr. Sutherland wrote on February 28, 2017, that he noted
"stiffness of all of his affected digits with limited flexion of these digits at this time." Dr.
Sutherland stated Mr. Resto would require another two months to regain near full range
of motion of his fmgers. Mr. Resto had surgery to remove the pin from his fractured
finger in May 201 7. He testified during the Expedited Hearing that he had not worked
since the date of injury.

       Mr. Resto filed a Petition for Benefit Determination challenging the Bakery's
denial of his claim. After mediation failed to resolve the parties' differences, the




                                               4
mediator issued a Dispute Certification Notice that certified compensability, medical
benefits and temporary disability benefits3 issues to the Court for determination.

                            Findings of Fact and Conclusions of Law

                                       General Legal Principles

        The Court applied the following legal principles in deciding this claim. Mr. Resto
bears the burden of proving all essential elements of his claim. However, where the
employer defends a claim on the employee's willful misconduct, the burden of
establishing the defense rests upon the employer. See Tenn. Code Ann. § 50-6-11 O(b)
(20 16). The party bearing the burden of proof on an issue need not prove every element
of the issue by a preponderance of the evidence at an Expedited Hearing. Rather, the
party who has the burden of proof must come forward with sufficient evidence from
which the Court can determine that the party is likely to prevail in establishing the issue
or issues at a hearing on the merits. See McCord v. Advantage Human Resourcing, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

                                           Willful Misconduct

       Tennessee Code Annotated section 50-6-110(a)(l) and (4) (2016) provides, "[n]o
compensation shall be allowed for an injury or death due to: (1) [t]he employee's willful
misconduct; [or] (4) [t]he employee's willful failure or refusal to use a safety device."
The Bakery argued Mr. Resto's claim is barred because he willfully violated its rule
prohibiting cleaning the sheeting machine while in operation and, further, because he
willfully removed a safety device-the housing from the back of the machine-to clean
the machine while it was in operation.

        In assessing the Bakery's willful misconduct defenses, the Court considers the
Workers' Compensation Appeals Board's decision in Scarbrough v. Right Way
Recycling, LLC, 2015 TN Wrk. Comp. App. Bd. LEXIS 9, at *12-14 (Apr. 20, 2015),
which applied the misconduct test in Mitchell v. Fayetteville Public Utilities, 368 S. W.3d
442, 453 (Tenn. 2012), in a new-law claim. In Scarbrough, the Appeals Board held that
the employer must prove the following factors to bar an employee from benefits based on
the willful misconduct defense: (1) the employee's actual, as opposed to constructive,
notice of the violated rule, (2) the employee's understanding of the dangers 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.



3
 The parties stipulated the accuracy of the Wage Statement completed by the Bakery, which established that Mr.
Resto's average weekly wage was $781.08 (weekly compensation rate-$520.72).

                                                      5
        In applying the above factors, the Court notes the majority of the Supreme Court
in Mitchell approved the following language from its Special Workers' Compensation
Panel in Nance v. State Industries, Inc., 33 S.W.3d 222, 226 (Tenn. Workers' Comp.
Panel 2000): "[i]n evaluating whether the employee's conduct was willful ... the court
must distinguish between those cases in which the employee's conduct was accidental,
n egligent, inadvertent, thoughtless, an error of judgment, or even reckless, and those
cases in whi ch the conduct was willful.' Mitchell, 368 S.W.3d at 452. 4 In view of the
above authority, the Court holds the Bakery failed to show that, at a hearing on the
merits, it will likely prevail in establishing that Mr. Resto's injury was due to his willful
violation of a safety rule and/or his willful removal of a safety device.
       In making this ruling, the Court accepts Mr. Resto's unrebutted testimony that he
was burning threads, and not cleaning the moving parts of the sheeting machine, at the
time of his injury. 5 The Court also accepts Mr. Resto's testimony, which Mr.
Humphreys' testimony corroborated, that his supervisor instructed him to bum threads
with the machine running. The Court hold that the above testimony negates the Bakery's
claim that Mr. Resto violated its rule against cleaning the machine while it is running.
Accordingly, the Court finds the Bakery failed to establish that Mr. Resto violated a
safety rule by burning threads while the machine was in operation.
       The Bakery's primary contention is that Mr. Resto committed willful misconduct
by removing the housing from the back of the machine while it was running. It argued
that Mr. Resto could have burned threads without removing the housing if he had done so
at the location where the moving conveyer belt exits the machine. In support of this
contention, the Bakery relies on its written policies. The Bakery did not present any
witness who testified with actual observation of Mr. Resto's work activities.

       The Court notes that the written policies the Bakery submitted address neither the
thread-burning process nor when and under what conditions, during the process, the
sanitation worker should remove the housing from the back of the machine. (Ex. 7 at 1-
6.) However, the Bakery contended Mr. Resto violated its general policy prohibiting the
operation of unguarded machinery. In support of this position, the Bakery relied on the
language quoted at the top of page 3 of this order, which, according to Mr. Humphreys, a
supervisor orally translated to Mr. Resto as Mr. Humphreys read it aloud.
       Mr. Resto did not testify about the above-described language when asked about
his safety training. Furthermore, Mr. Resto has a third-grade education and, in the fast-

4
  The only reservation stated in the Mitchell opinion to the standard set forth in Nance was the use of the term
"perverseness" in Nance to describe the type of conduct that would indicate willful misconduct of an employee. The
Court in Mitchell did not adopt the "perverseness" standard, but approved the language from Nance quoted in the
body of the Court's order. Mitchell, at 453.
5
 While Mr. Resto testified his injury occurred when he reached to remove dough from the machine, he also testified
he was burning threads when he did this.


                                                        6
paced environment in which he worked, the Court questions whether it is reasonable for
the Bakery to expect Mr. Resto to remember a "rule" recited to him verbally along with a
mass of other information. The Court also questions whether it is reasonable for the
Bakery to expect Mr. Resto to extrapolate from the above-quoted language that he should
only bum threads while the housing on the back of the machine was in place. Finally, the
written policies submitted by the Bakery do not identify the housing of the machine as a
safety guard, and the Bakery came forward with no evidence indicating it communicated
this to Mr. Resto.

       The Court does not consider the language from the Employee Handbook to
constitute a rule that would invoke the willful misconduct defense under section 50-6-
lOl(a)(l). The Bakery came forward with no evidence that Mr. Resto actually read and
understood the text in the Handbook, which is written in English. At most, the Bakery
established Mr. Resto had constructive notice of the text and, as pointed out in
Scarbrough, constructive notice of a rule does not invoke the willful misconduct defense.
       In view of the above, the Court fmds that, at a hearing on the merits, the Bakery
will not likely prevail in establishing that Mr. Resto knew the housing at the back of the
sheeting machine was a safety guard. Specifically, the Court finds the Bakery did not
meet its burden of proving it communicated this concept to Mr. Resto. Furthermore, the
Court finds the Bakery will not prevail in establishing Mr. Resto acted with willful
misconduct when he reached to remove dough while burning threads on the sheeting
machine. The Bakery may prevail in establishing that Mr. Resto's decision to reach for
dough while the machine was running constituted an inadvertent or, perhaps, even a
negligent act. However, the Bakery did not establish the element of intentionality in Mr.
Resto's actions required for a fmding of willfulness.

     In summary, the Court holds the Bakery did not establish that, at a hearing on the
merits, it will prevail in showing that Mr. Resto either willfully violated safety rules or
refused to use a safety guard in connection with the incident in which he suffered injury.
Therefore, the Court awards Mr. Resto benefits under the Workers' Compensation Law.

                                    Medical Benefits
       Tennessee Code Annotated section 50-6-204 (20 16) requires that an employer
provide an injured employee medical treatment of his injury free of cost to the employee.
The Bakery did not provide this benefit to Mr. Resto after it denied his claim fourteen
days after the date of injury.

       In that Mr. Resto suffered from healing amputations to two fingers and had an
external pin attached to his left index finger, the Court fmds he was justified in seeking
care from Clinica Medicos after the Bakery denied his claim. Accordingly, the Court
orders that the Bakery and its workers' compensation carrier provide on-going care of
Mr. Resto's work injuries by physicians at Clinica Medicos.


                                            7
                               Temporary Disability Benefits
       In King v. Compass Heating and Air, 2016 TN Wrk. Comp. App. Bd. LEXIS 89,
at *3-4 (Nov. 22, 2016), the Workers' Compensation Appeals Board held,

        An injured worker is eligible for temporary disability benefits if ( 1) the
        worker became disabled from working due to a compensable injury, (2)
        there is a causal connection between the injury and the inability to work,
        and (3) the worker established the duration of the period of disability.
        James v. Landair Transp., Inc., No. 2015-02-0024, 2015 TN Wrk.
        Comp. App. Bd. LEXIS 28, at *16 (Tenn. Workers' Comp. App. Bd.
        Aug. 26, 2015).

        The "After Surgery" instructions Mr. Resto received from Erlanger Medical
Center instructed that he not use his hands for anything. (Ex. 12.) When Mr. Resto
sought care from Clinica Medicos on February 28, 2017, Dr. Sutherland noted Mr. Resto
still had stiffness in all the affected digits and described his injuries as "healing." (Ex. 13
at 1.)

         The Court fmds that the prohibition that Mr. Resto not use his hands following his
release from Erlanger on January 27, 2017, totally disabled him from working. Although
Mr. Resto's injuries had not totally healed when Dr. Sutherland examined him on
February 28, 2017, the records do not indicate Dr. Sutherland placed restrictions on his
activities. Accordingly, the Court awards Mr. Resto temporary total disability benefits
from January 27, 2017, until February 28, 2017, a period of four weeks, five days. Based
on Mr. Resto's compensation rate of $570.82 per week, the Court awards Mr. Resto
$2,689.58 in temporary total disability benefits.

       IT IS, THEREFORE, ORDERED as follows:

   1. Chattanooga Bakery and/or its carrier shall authorize Clinica Medicos to provide
      on-going medical treatment of Mr. Resto's work injury.

   2. Chattanooga Bakery and/or its carrier shall pay Mr. Resto $2,689.58 in temporary
      partial disability benefits covering the period from January 27, 2017, until
      February 28, 2017.

   3. Should counsel for Mr. Resto seek an attorney's fee and/or reimbursement of
      expenses, he shall petition the Court, supporting his request by affidavit.

   4. This matter is set for a Status Hearing at 10:00 a.m. Eastern Time on August 4,
      2017. You must call (423) 634-0164 or toll-free at (855) 383-0001 to participate
                                              8
   in the Status Hearing. You must call in on the scheduled date/time to participate.
   Failure to call in may result in a determination of the issues without your further
   participation.

5. 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) (2016). The Insurer or Self-Insured
   Employer must submit confirmation of compliance with this Order to the
   Bureau by email to WCCompliance.Proeram@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 may result in a
   penalty assessment for non-compliance.

6. For questions regarding compliance, please contact the Workers' Compensation
   Compliance Unit via email WCCompliance.Program(ci)tn.go or by calling (615)
   253-1471 or (615) 532-1309.

   ENTERED this the 6th day of June, 2017.




                              Judge Thomas Wyatt
                              Court of Workers' Compensation Claims




                                        9
                                       APPENDIX

 Exhibits:
             1. First Report of Injury (Form C-20);
             2. Wage Statement (Form C-41);
             3. Affidavit of Wilfredo Resto;
             4. Transcript of recorded statement of Wilfredo Resto;
             5. Notice of Denial (Form C-23);
             6. Narrative investigative report of Chattanooga Bakery;
             7. Training documents;
             8. Timeline;
             9. Personnel records;
             10. Safety materials compiled by Chattanooga Bakery;
             11. Employee Handbook;
             12. Records of Erlanger Medical Center;
             13. Records of Clinica Medicos/Drs. Philip Sutherland and Tiffany Meador;
                 and
             14. Two photographs of the sheeting machine.

 Technical record:
           1. Petition for Benefit Determination;
           2. Dispute Certification Notice; and
           3. Request for Expedited Hearing.


                             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 this the 6th day of
 June, 2017.

Name                  Certified Mail Via Email         Email Address

Marc Walwyn,                                 X         marc@wal~nlegal.com
Employee Attorney
Peter Rosen,                                 X         Qrosen@levineorr.com
Employer Attorney




                                          PENNYSHRUM,COURTCLERK
                                          wc.courtclerk@tn. gov

                                             10
