                                                                                                     FILED
                                                                                                  Dec 11, 2019
                                                                                                  09:10 AM(CT)
                                                                                              TENNESSEE COURT OF
                                                                                             WORKERS' COMPENSATION
                                                                                                    CLAIMS




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

BILLY KEITH WATTS                                      )   Docket No.: 2019-04-0113
          Employee,                                    )
v.                                                     )
                                                       )
GRAPHIC PACKAGING, INTL.                               )   State File No.: 13303-2019
         Employer,                                     )
And                                                    )
                                                       )
ARCH INS. CO.,                                         )   Judge Robert Durham
          Insurer.                                     )



                 EXPEDITED HEARING ORDER DENYING BENEFITS


      The Court conducted an expedited hearing on December 3, 2019 to determine
whether Mr. Watts is likely to prove his injury is compensable given GPI's asserted
defense of willful misconduct. The Court holds he is not likely to do so.

                                            History of Claim

        Mr. Watts worked as a press operator for GPI on February 20, 2019 when he tried
to pull out excess paper from an active press with his right hand. At the hearing, Mr.
Watts testified that the paper was sticking out a bit when he grabbed it. In his deposition,
which was made an exhibit, he explicitly stated he reached into the press to pull out the
paper. None of the pleadings or discovery corroborated his hearing testimony.

       In any event, the belts on the press pulled his hand in, causing extensive damage. 1
Mr. Watts went to the emergency room and later underwent a drug test, which returned
positive for marijuana. 2


1
  Mr. Watts underwent five surgeries on his hand, but still lost his ring and little finger and the tip of his
middle finger. He is scheduled to undergo another surgery to release scar tissue.
2
  GPI did not pursue intoxication as an affirmative defense, but raised it only as grounds for Mr. Watts'
termination.

                                                      1
       Mr. Watts became an employee of GPI in June 2018 when it bought PFP, LLC,
the company where Mr. Watts had worked for five years. As with most employees, his
essential job duties did not change upon GPI's purchase. Mr. Watts worked second shift
and Steve Chappell, who also trained him on press operation, was his only supervisor
throughout his employment with PFP and GPI.

       PFP did not have any written safety or disciplinary policies. Although there were
rules of procedure that employees were expected to follow, Mr. Watts described the
atmosphere as "laid back." Nevertheless, in May 2017, he received a written warning
from Tom White, PFP's plant manager, after the day-shift supervisor observed him
wiping down a press plate while the machine was running.3 In the warning, Mr. White
described the action as "unacceptable." This is the only documented disciplinary action
taken against Mr. Watts before his accident.

       After taking over, GPI began implementing its policies, including those on safety.
Management met with its new employees and educated them on new safety procedures,
which included the "Seven Safety Absolutes." One of the "Absolutes" was a prohibition
against "reaching into moving equipment in violation of established safe operating
procedures." In September 2018, Mr. Watts signed a document acknowledging his
receipt and understanding of the "Safety Absolutes" and that he could be terminated for
violating one of them. GPI displayed posters of these principles around the facility.

       GPI also provided Mr. Watts with a written policy emphasizing safety and the
responsibility of all employees to maintain a safe working environment. It stated that it
was the employee's duty to report any unsafe work practices and, if a supervisor were
involved, the report should be made to Human Resources. Mr. Watts signed an
acknowledgement agreeing to abide by these provisions. In addition, Mr. Watts signed a
"Commitment to Safety Form" that reiterated GPI' s emphasis on safety, and in which he
agreed to "abide by the rules and regulations of the company at all times."

       Mr. Watts testified that he knew and understood his responsibilities as outlined in
these documents at the time he signed them. He confirmed that he was aware of the
dangers of reaching into moving equipment, and that doing so violated GPI' s "Safety
Absolutes." Mr. Watts further conceded that he witnessed several verbal reprimands by
management after GPI took over and knew of at least one written warning issued after a
co-worker cut himself.

       However, Mr. Watts stated that after GPI's training, Mr. Chappell told him and
other operators to use their own discretion about abiding by GPI's safety policies, but if
they decided not to, they "better not get caught." Further, he saw several operators,
including Mr. Chappell himself, reach into the presses to remove paper. Following Mr.

3
    Mr. White remains the plant manager at GPI.

                                                  2
Watts' written warning in 2017, Mr. Chappell even asked him to stand in front of a
camera so Mr. Chappell could wipe down a press plate on a running machine without
being seen. 4 Mr. Watts admitted that he never informed Mr. White or anyone in Human
Resources about these violations.

        In addition to Mr. Watts, Mr. White also provided testimony. He stated that safety
was one of GPI's highest priorities. He believed no employee should undertake a task if it
could not be done safely, and he communicated this to Mr. Watts in the 2017 warning.
He stated it was the primary responsibility of the shift supervisor to report safety
violations from the floor. Verbal warnings were part of GPI's progressive disciplinary
system and shift supervisors were authorized to issue those; however, any further
disciplinary action had to be taken by himself and Human Resources. He remembered at
least six written warnings for safety violations that he issued as GPI's plant manager,
although none for reaching into a moving machine before Mr. Watts' accident.

       As to Mr. Chappell's alleged statements and safety violations, Mr. White testified
that once he learned of Mr. Watts' allegations following his deposition and he
investigated them thoroughly, he demoted Mr. Chappell from shift supervisor. He further
stated that if he had known of these alleged incidents earlier, he would have certainly
investigated, and if true, would have taken disciplinary action then. However, no one
came to him or other managers asserting Mr. Chappell's alleged safety violations or
failure to discipline safety infractions before Mr. Watts' accident. He concluded by
stating that GPI fired Mr. Watts on March 6, 2019 for violating company policy, but it
would have otherwise accommodated his limitations.

                              Findings of Fact and Conclusions of Law

        Mr. Watts must present sufficient evidence establishing that he is likely to prove at
trial that he is entitled to workers' compensation benefits. See Tenn. Code Ann. § 50-6-
239(d)(1)(2019). GPI may present evidence of an affirmative defense, such as willful
misconduct, to illustrate a decreased likelihood that Mr. Watts would prevail at trial, but
the ultimate burden of proof at this expedited hearing remains with Mr. Watts. See
Burnett v. Builders Transp., 2018 TN Wrk. Comp. App. Bd. LEXIS 5 at *8, 9 (Feb. 8,
2018).

       Here, the parties stipulated that Mr. Watts sustained an injury that arose primarily
out of and in the course and scope of his employment. However, GPI contended that its
willful misconduct defense under Tennessee Code Annotated section 50-6-110(a)(1)
makes it unlikely that Mr. Watts will succeed at trial.

           The Appeals Board has set out several elements that an employer must prove to

4
    Neither party called Mr. Chappell as a witness.

                                                      3
show willful misconduct. First, there must be a violation of an actual safety rule. See
Neal v. Connect Express, LLC 2017 TN Wrk. Comp. App. Bd. LEXIS 9 at* 10 (Jan. 30,
2017). A prohibition against placing one's hand into moving machinery is one of GPI's
"Seven Safety Absolutes" that GPI communicated to its employees through several
methods.

        As to a violation of this rule, Mr. Watts admitted in his deposition that he reached
into the press to remove scrap paper. Several of the written discovery requests were
prefaced on the assumption that he reached into the machine, and his responses did
nothing to correct that assumption. No evidence suggested that he ever told anyone that
he did not actually reach into the machine. Nevertheless, at the hearing, Mr. Watts
testified that the scrap paper actually protruded slightly from the machine, and this is
what he grabbed rather than placing his hand into the press. The Court does not find Mr.
Watts' testimony credible on this point. Thus, the Court finds that Mr. Watts is unlikely
to rebut the first element of willful misconduct at trial.

       The Court now turns to the remaining elements 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 reason for violating the
rule. Roper v. A/legis Group, 2017 TN Wrk. Comp. App. Bd. LEXIS 9, at * 10 (Feb. 10,
2017.)

       The first two elements are essentially undisputed. Mr. Watts testified that he was
aware of the policy against reaching into a moving machine. He signed several
documents attesting to his awareness and understanding of GPI' s safety policies and his
willingness to abide by them. He also testified that he knew the dangers of placing his
hand in the machine and admitted to such in his discovery responses.

        The third element, bona fide enforcement, is the crux of the dispute between the
parties. Mr. White, GPI's plant manager, testified that when GPI took over, safety
became a top priority and this shift was communicated to the employees. Mr. Watts
admitted that GPI was much stricter than the "laid-back" approach used by its
predecessor. He knew that, should Mr. White or someone from Human Resources catch
him violating one of the "Safety Absolutes" he would likely be disciplined, perhaps
terminated.

       Mr. White testified that if he became aware of a violation, he would investigate
and ensure appropriate measures were taken. As evidence of enforcement, he cited
several instances where he gave written warnings for various safety violations in the
months following GPI's take-over. Mr. Watts admitted he knew of a warning being
issued to a co-worker who had cut himself.


                                             4
       Although GPI offered no proof of disciplinary action stronger than a written
warning, it must be recalled that it had only been in charge for approximately eight
months at the time of Mr. Watts' injury. In addition, both parties testified as to verbal
warnings issued by management. Further, even while employed with PFP, Mr. White
displayed a commitment to enforcing the specific rule against reaching into active
equipment. When the first-shift supervisor advised him that he saw Mr. Watts wipe
down a plate on a moving press, he issued a written warning. Thus, the Court finds that
the evidence is likely to support GPI's contention that, with the exception of Mr.
Chappell, management was committed to enforcing its safety policies.

       However, Mr. Watts argued that Mr. Chappell's failure to enforce the rules
negated any commitment or action as to other GPI management. He contended that since
his immediate supervisor regularly allowed such violations, and in fact committed these
violations himself, GPI will be unable to prove bona fide enforcement at trial. Given the
facts of this case, the Court finds his argument unpersuasive.

        Although the unrebutted evidence established that Mr. Chappell routinely ignored
violations of GPI's safety policy, he also made it clear to the second-shift employees that
if they were caught by other managers committing unsafe acts, they would likely be fired.
He took steps to hide one violation from Mr. White by asking Mr. Watts to step in front
of the camera while he wiped of a plate. Mr. Chappell was the only one with any
supervisory authority on second shift, but his authority as to discipline was limited to
only giving verbal warnings and reporting violations to Mr. White, who would then
determine the level of discipline necessary.

       In addition, Mr. Watts admitted that he did not report any second shift safety
violations or Mr. Chappell's failure to properly supervise the operators, even though he
knew it was his obligation to do so. If he had reported him, GPI could have taken
corrective action much sooner. Finally, once Mr. White became aware of Mr. Chappell's
behavior, GPI disciplined him by demoting him from supervisor. Given these facts, the
Court cannot find that Mr. Chappell's actions or inactions established that GPI is unlikely
to show bona fide enforcement of the safety rule at trial.

       As to the last element regarding a valid excuse, Mr. Watts maintained that to shut
down the press to remove a paper jam could potentially stop the process for several
minutes and result in more waste paper, thus reducing productivity. However, he
provided no evidence that GPI encouraged or condoned safety violations to maintain
productivity. Thus, the Court finds that Mr. Watts' excuse is likely insufficient to prevail
against a defense of willful misconduct. See Gonzales v. ABC Prof'/ Tree Services, 2014
TN Wrk. Comp. App. Bd. LEXIS 2, *27 (Nov. 10, 2014).




                                             5
           IT IS, THEREFORE, ORDERED that:

     1.   Mr. Watts' request for workers' compensation benefits is denied at this time.

     2. This case is set for a Scheduling Hearing on January 23, 2020, at 10:30 a.m.
        Central Time. The parties must call 615-253-0010 or toll-free at 855-689-9049 to
        participate. Failure to call might result in a determination of the issues without your
        participation.


                                       ENTERED December        1/, 2019.

                                ~1     Rbei1V:D1lrham, Judge
                                       Court of Workers' Compensation Claims


                                           APPENDIX

Exhibits:

1.         Responses to Interrogatories
2.         Responses to Requests for Admission
3.         Separation Notice
4.         Safety Absolutes
5.         Poster of Safety Absolutes
6.         Safety Policy
7.         Written Warning
8.         Commitment to Safety Statement
9.         Wage Statement
10.        First Report of Injury
11 .       Drug Test Results
12.        Notice of Denial
13.        Transcript of Mr. Watts' Deposition
14.        Employee Performance Review

Technical Record:

1.         Petition for Benefit Determination
2.         Dispute Certification Notice
3.         Request for Expedited Hearing
4.         Notice of Expedited Hearing

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