                                                                                                    FILED
                                                                                                Oct 02, 2019
                                                                                                02:19 PM(CT)
                                                                                            TENNESSEE COURT OF
                                                                                           WORKERS' COMPENSATION
                                                                                                  CLAIMS




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

Leonardo Calderon-Fuentes,                             )   Docket No. 2018-06-1735
           Employee,                                   )
v.                                                     )
CEVA Logistics U.S. Holdings,                          )   State File No. 58665-2018
          Employer,                                    )
And                                                    )
New Hampshire Ins. Co.,                                )   Judge Kenneth M. Switzer
          Carrier.                                     )


           EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF


       This case requires the Court to determine whether Leonardo Calderon-Fuentes,
while driving a forklift, collided with another moving forklift and suffered injuries. At a
September 26 hearing, CEVA Logistics U.S. Holdings offered evidence from four of its
employees disputing Mr. Calderon-Fuentes's account of the events. Based on the
evidence, the Court finds Mr. Calderon-Fuentes did not demonstrate that he would likely
prevail at a hearing on the merits. His requested relief is denied at this time.

                                              Claim History

        According to Mr. Calderon-Fuentes, on July 25, 2018, while driving his forklift,
he collided with another forklift driven by Anthony Banks. 1 He felt immediate pain but
he thought it would subside with time. Mr. Calderon-Fuentes observed no damage to the
forklifts and stated that CEVA has cameras at work that would have recorded the
accident.

       Mr. Calderon-Fuentes testified that he and Mr. Banks summoned their supervisor,
Carie Williams, to report the accident. He told Ms. Williams he "had pain but I didn't
think it was going to get worse." He did not ask to go to a doctor at that time. Ms.
Williams told him to keep working, which he did, finishing his shift. He moved the

1
    Mr. Calderon-Fuentes's first language is Spanish. Steven Robinson interpreted at the hearing.
forklift because it was "on the line," but he did not drive anymore that day. Mr.
Calderon-Fuentes worked for eight more days after the incident, until August 2, when he
asked to leave because he was not feeling well.

      Mr. Calderon-Fuentes said he never received a panel of physicians. Tomie Hill,
CEVA's training and safety manager, confirmed this in his direct testimony, stating, "We
have a panel of doctors that we choose. Uh, Concentra was chosen ... for his care."
CEVA did not introduce into evidence a signed panel form. Ultimately, Mr. Calderon-
Fuentes treated on his own, but he introduced no records of the treatment other than work
excuses.

       Mr. Hill further testified regarding Mr. Calderon-Fuentes's assertion that video
footage exists of the accident. Mr. Hill stated he reviewed the available footage but no
cameras are in the area where the incident occurred. When asked why, he said he did not
place the cameras; rather, security did.

        Ms. Williams testified live and in a declaration that she investigated the incident
on July 25. Another worker who speaks Spanish interpreted Mr. Calderon-Fuentes's
account of the accident, which she documented in an incident report. Near the top of the
document, a box is checked that characterized the incident as a "near miss." However,
the interpreter wrote that "other driver appear [sic] from receiving stagin[g] area when he
hit me[.]" The report states "no injuries." Ms. Williams testified that following the
incident, she asked whether Mr. Calderon-Fuentes had any injuries or needed to see a
doctor, and he said no. He signed the report, which is in English. Mr. Calderon-Fuentes
testified that he does not read English.

      Ms. Williams further testified that she took statements from eye witnesses, Marise
Edouard and Anthony Banks. Ms. Edouard told her the drivers stopped before impact.
Mr. Banks, the other driver, likewise told her no impact occurred. Ms. Edouard and Mr.
Banks signed sworn declarations stating the same but did not testify at the hearing. 2

        Much of the testimony revolved around sensors placed on the forklifts. Ms.
Williams explained that when a forklift hits an object, an "impact alert" sends an email to
Mr. Hill, and the forklift becomes inoperable until it is reset. In this instance, however,
she said both Mr. Banks and Mr. Calderon-Fuentes were able to operate their forklifts
afterward. Mr. Hill stated that he did not receive an impact email from the sensors on the
forklifts, which he described as "sensitive." On cross-examination, Mr. Hill said, "It's
rare that a lift doesn't lock-out when there's an impact." He explained that a sensor
might not send an alert if a forklift hit a support beam, but "a hard impact forklift
collision" would set it off, and he hasn't "had a forklift collision that hasn't shut down on

2
 CEV A subpoenaed them, but for unknown reasons they did not appear. Mr. Calderon-Fuentes did not
subpoena them to appear.

                                                2
[him]." For his part, Mr. Calderon-Fuentes testified, "I've been working there for six
years, and a forklift will never lock up, even if it's hard-crashed."

        As for authorized treatment, Mr. Calderon-Fuentes saw a physician assistant at
Concentra on August 3, who noted he "was on forklift was hit by another forklift pain in
back DOl 07/25/2018." The physician assistant placed him on restrictions. Mr. Hill
testified that CEVA offered to accommodate Mr. Calderon-Fuentes's work restrictions.
CEVA introduced a Bona Fide Offer of Employment in support of this contention.

       CEVA denied the claim on August 13, citing "no accident arising out of the course
and scope of his employmen[t]." Mr. Calderon-Fuentes took leave under the Family and
Medical Leave Act. He returned to work without restrictions in December 20 18 and
continues working at CEVA.

                        Findings of Fact and Conclusions of Law

        An injured worker retains the burden of proof at all stages of a workers'
compensation claim. Buchanan v. Car/ex Glass Co., 2015 TN Wrk. Comp. App. Bd.
LEXIS 39, at *6 (Sept. 29, 2015). At an expedited hearing, a trial court may grant relief
if the court is satisfied that an employee has met the burden of showing that he or she is
likely to prevail at a hearing on the merits. !d. Here, Mr. Calderon-Fuentes must show
he suffered an accidental injury "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." Tenn. Code Ann. § 50-6-102(14)(A) (2018).

       The proof about the events leading to this claim of injury varies significantly. On
one hand, Mr. Calderon-Fuentes credibly testified about the events before and after the
alleged forklift collision on July 25. He stated that his forklift made actual contact with
Mr. Banks's, resulting in pain and injury. Although Ms. Williams's accident report
characterizes the incident as a "near miss," it also states, "other driver appear [sic] from
receiving stagin[g] area when he hit me[.]" Further, Mr. Calderon-Fuentes gave a similar
history of injury to providers at Concentra. The Court finds it plausible that the forklifts
could collide without damaging either one.

       On the other hand, the Court must weigh the testimony of supervisors who did not
witness the accident but rather conducted investigations afterward. Ms. Williams spoke
to, and CEVA obtained declarations from, two eye witnesses who said the forklifts did
not collide. Although they were not present at the hearing for Mr. Calderon-Fuentes to
cross-examine, their statements are sworn, and the Court must assign some weight to
them.

      But perhaps most compelling is the testimony regarding the sensors, which is
circumstantial evidence. The Appeals Board cited longstanding law that "[a]ny fact may

                                             3
be proved by direct evidence, circumstantial evidence, or a combination of the two" and
that "[t]he law does not distinguish between the probative value of direct evidence and
the probative value of circumstantial evidence." LaGuardia v. Total Holdings USA, Inc.,
d/b/a Hutchinson Sealing Sys., 2017 TN Wrk. Comp. App. Bd. LEXIS 73, at *8-9 (Nov.
29, 2017).

        Mr. Hill credibly testified that he did not receive an email alerting him of a forklift
collision on the date of the incident and that the sensors are "sensitive." He said that it is
"rare" for a sensor not to send an alert on impact. He acknowledged that it might not
happen when striking a support beam but maintained that a "hard impact" collision would
have sent an alert. Likewise, Ms. Williams credibly explained the forklifts would have
been inoperable after an impact until they are reset. However, Mr. Calderon-Fuentes
admitted he was able to move his forklift after the incident, albeit merely to move it off
the line.

        Mr. Calderon-Fuentes insisted that he never saw a forklift stop working after a
hard impact over the course of his six years at CEVA. The Court finds no explanation for
the discrepancies in their testimony. Regardless, weighing Mr. Calderon-Fuentes's
testimony on this point against that of Mr. Hill and Ms. Williams, the Court credits their
contention that the sensors on their forklifts would have alerted Mr. Hill and that the
forklifts would have been inoperable had a collision occurred.

       Therefore, on this record, Mr. Calderon-Fuentes did not satisfY his burden to show
likelihood of a "specific incident, or set of incidents, arising primarily out of and in the
course and scope of employment," as the statute requires. The Court is unable to grant
the requested medical or temporary disability benefits at this time.

       Having ruled, the Court must also comment on CEVA's handling of Mr.
Calderon-Fuentes's assertion of an injury. Mr. Calderon-Fuentes testified that he never
received a panel of physicians. Mr. Hill confirmed, "We have a panel of doctors that we
choose. Uh, Concentra was chosen . . . for his care." CEVA did not introduce a panel
into evidence.

        When an injured worker expresses a need for medical care, "[t]he employer shall
designate a group of three (3) or more independent reputable physicians ... from which
the injured employee shall select one (1) to be the treating physician." Tenn. Code Ann.
§ 50-6-204(a)(3)(A)(i). The Court finds CEVA did not comply with this provision when
it directed Mr. Calderon-Fuentes to Concentra. This case is referred to the Compliance
Program for consideration of a penalty. See Tenn. Code Ann. § 50-6-118(a)(l2) (The
Bureau may collect penalties for an employer's failure to timely provide a panel of
physicians).



                                              4
IT IS, THEREFORE, ORDERED AS FOLLOWS:

  1. Mr. Calderon-Fuentes's requested relief is denied at this time.

  2. This case is set for a Scheduling Hearing on December 2, 2019, at 9:00 a.m.
     Central Time. 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.

  3. This case is referred to the Compliance Program for consideration of the
     imposition of a penalty for CEVA's failure to offer a panel of physicians.

     ENTERED October 2, 2019.




                                 Court of Workers' Compensatio




                                           5
                                               APPENDIX

          Exhibits
     1.   Affidavit ofLeonardo Calderon-Fuentes
     2.   First Report of Injury
     3.   Denial
     4.   Composite medical records
     5.   Declaration ofTomie Hill/attached proof of wages
     6.   Declaration of Carie Williams and attachments
     7.   Declaration of Marise Edouard
     8.   Declaration of Anthony Banks
     9.   Bona Fide Offer of Employment

          Technical Record
     1.   Petition for Benefit Determination
     2.   Dispute Certification Notice
     3.   Show-Cause Order
     4.   Request for Expedited Hearing
     5.   Order on Show-Cause Hearing
     6.   Employer's Position Statement



                                CERTIFICATE OF SERVICE

          I certifY that a copy of this Order was sent as indicated on October 2, 2019.

Name                     Certified   Regular     Email     Sent to
                         Mail        mail
Leonardo Calderon-          X                             320 Welch Rd., Apt. G3
Fuentes, Self-                                            Nashville TN 37211
represented
Emplo_yee
Tyler Smith,                                        X      tsm ith@lewisthomason. com
EmpJoyer' s attorney                                       rcorrigan@ lewisthomason.com
Compliance                                          X      WCComQI iance.Program@tn. gov
Program




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