                                                                                         FILED
                                                                                       May 27, 2015
                                                                                      TN COURT OF
                                                                                WO RKERS' CO:\·I PE =" SAT I O ~·
                                                                                        C LA L\I S

                                                                                        Tim e: 11 :2 1 AM




               COURT OF WORKERS' COMPENSATION CLAIMS
                 DIVISION OF WORKERS' COMPENSATION


Eric Blasingim,                          )         DOCKET#: 2015-05-0026
      Employee,                          )         STATE FILE#: 60533-2014
v.                                       )         DATE OF INJURY: August 4, 2014
Rite Hite Holding Corporation,           )         Chief Judge Switzer
      Employer,                          )
and,                                     )
Sentry Insurance                         )
      Carrier.                           )

                           EXPEDITED HEARING ORDER

       THIS CAUSE came before the undersigned Workers' Compensation Judge on
May 19, 2015, upon the Request for Expedited Hearing filed by the Employee, Eric
Blasingim (Mr. Blasingim), on March 23, 2015, pursuant to Tennessee Code Annotated
section 50-6-239 to determine if the Employer, Rite Hite Holding Corporation (Rite Hite)
is obligated to provide medical and temporary disability benefits. Considering the
positions of the parties, the applicable law, and all of the evidence submitted, the Court
concludes that Mr. Blasingim is not entitled to the requested benefits at this time.

                                      ANALYSIS

                                          Issues

          o   Whether Mr. Blasingim sustained an injury arising primarily out of and in
              the course and scope of his employment with Rite Hite.

          o   Whether Mr. Blasingim 's injury was idiopathic in nature.

                                  Evidence Submitted

      The Court admitted into evidence the exhibits below:

          •   Ex. 1: Medical Records of Eric Blasingim, Vanderbilt University Medical
              Center (86 pages)

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             •    Ex. 2: FROI, August 5, 2015
             •    Ex. 3: Form C-41, Wage statement.

         The Court designated the following as the technical record:

             •    Petition for Benefit Determination (PBD), February 9, 2015
             •    Dispute Certification Notice (Amended), March 23, 2015
             •    Request for Expedited Hearing, March 23, 2015
             •    Employer and Insurance Carrier's Pre-Hearing Brief, May 8, 2015.

      The Court did not consider attachments to the above filings unless admitted into
evidence during the Expedited Hearing. The Court considered factual statements in the
above filings or any attachments thereto as allegations unless established by the evidence.

         Mr. Blasingim was the only witness who testified.

         The parties stipulated to the following:

             •    The date of injury is August 4, 2014.
             •    Rite Hite received timely notice of the injury.
             •    Mr. Blasingim's compensation rate is $559.08 per week.
             •    Mr. Blasingim returned to work with no restrictions.

                                              History of Claim

       Mr. Blasingim is a forty-two (42) year-old resident of Giles County, Tennessee.
He works for Arbon Equipment Corporation, a division of Rite Hite Holding
Corporation, as a service technician. Mr. Blasingim's PBD states, with regard to how the
injury occurred: "Employee was knocked unconscious. He has no memory of the
accident. Believed to have been injured by hydraulic dock level[er]."

       Mr. Blasingim testified that he "was hurt while doing my job at [Robert Orr]
Sysco," and that he became injured "while doing the P.M.s on the levelers at Sysco."
According to Mr. Blasingim, Rite Hite has a video from the date of injury, which he did
not introduce into evidence 1• Mr. Blasingim said that the video, which his service
manager, Mark Metz, watched, shows him inside the building at the dock area where he
worked. He wore his hard hat at the time. He then exited the dock area and went out of
the camera's view for approximately two minutes. When Mr. Blasingim returned within
view of the camera, he was not wearing the hard hat. Mr. Blasingim testified, "I was

1
 According to Rite Hite's Counsel, the videos she viewed either showed "absolutely nothing" relative to the case, or
she was unable to view them.

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walking circles, bleeding, looking up at the ceiling- just doing random things."

       Mr. Blasingim was transported by ambulance to Vanderbilt University Medical
Center (Ex. 1, p. 2). Dr. Bradley Dennis' assessment provides, "This is a 41-year-old
white male status post blunt trauma to the head with traumatic brain injury, subdural
hematoma and skull fracture as well as acute respiratory failure requiring mechanical
ventilation (Ex. 1, p. 5)." Mr. Blasingim was admitted to the trauma ICU (Ex. 1, p. 13),
and discharged from the hospital on August 6, 2014 (Ex. 1, pp. 15-18). He received
follow-up outpatient care until September 12, 2015. Rite Hite denied the claim on
September 11, 2014 (Ex. 1, p. 30).

        On cross-examination, Mr. Blasingim said Mr. Metz was not present on the date of
the injury, but went to the jobsite on August 5, 2014, to investigate. Mr. Blasingim
acknowledged that in 2001 or 2002, he was in a "very bad" car accident, where his
vehicle was hit head-on, resulting in him being comatose and hospitalized for several
weeks. He agreed that his injuries from the car accident were primarily to his head, and
that his physicians inserted a plate in his head as well as pins and screws in his jaw.
Recovery from the car accident kept him off from work for approximately three months.
Mr. Blasingim conceded he experienced occasional dizzy spells, or "positional
dizziness," after the 2001 or 2001 accident and before the August 4, 2014 injury, but said
that the dizziness had subsided before the workplace accident. He agreed he had tinnitus
before the August 4, 2014 accident as well. Mr. Blasingim additionally acknowledged
that he was involved in a previous ATV accident, but said that it injured his knee and not
his head. Although the medical records state that he suffered two previous concussions
(Ex. 1, p. 19), Mr. Blasingim testified that information is incorrect. He agreed that he has
no specific memory of the accident occurring.

        Mr. Blasingim filed a PBD on February 9, 2015, seeking medical and temporary
disability benefits. The parties did not resolve the disputed issues through mediation and
the Mediating Specialist filed a Dispute Certification Notice on March 23, 2015, which
was amended to include additional issues on that same date. On March 23, 2015, Mr.
Blasingim filed a Request for Expedited Hearing.

                              Mr. Blasingim's Contentions

       Mr. Blasingim contends that there is no other way in which he could have received
the injuries he sustained, other than one or two ways that he could have become injured
while doing his job, considering the circumstances surrounding the August 4, 2014
accident at work. The insurance carrier has found a "loophole" to deny coverage because
he cannot remember what happened and supposedly no one else witnessed the accident.




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                                 Rite Hite's Contentions

        Mr. Blasingim did not satisfy his burden to show that he suffered a work-related
injury because he cannot specify the incident or series of incidents that resulted in his
injuries, nor has he offered sufficient medical proof of causation.

                        Findings of Fact and Conclusions of Law

                                   Standard Applied

       "The Workers' Compensation Law shall not be remedially or liberally construed
in favor of either party but shall be construed fairly, impartially, and in accordance with
basic principles of statutory construction favoring neither the employee nor employer."
Tenn. Code Ann. § 50-6-116 (2014). Tennessee Code Annotated section 50-6-239(c)(6)
provides that, "[u]nless the statute provides for a different standard of proof, at a hearing
the employee shall bear the burden of proving each and every element of the claim by a
preponderance of the evidence." Tenn. Code Ann. § 50-6-239(c) (2014). A different
standard of proof exists for the issuance of interlocutory orders at expedited hearings than
the standard of proof required at compensation hearings. McCord v. Advantage Human
Resourcing, No. 2014-06-0063 (Tenn. Work. Comp. App. Bd., March 27, 2015). A
workers' compensation judge may enter an interlocutory order for medical or temporary
benefits upon a determination that the injured employee would likely prevail at a hearing
on the merits. Tenn. Code Ann.§ 50-6-239(d)(l) (2014); cf McCall v. Nat'l Health Care
Corp., 100 S.W.3d 209, 214 (Tenn. 2003).

                                   Factual Findings

       Although Mr. Blasingim suffered injuries on August 4, 2014, he provided no proof
that his injuries resulted from a danger or hazard peculiar to his work, or that a risk
inherent in the nature of his caused the injuries.

                             Application ofLaw to Facts

       Mr. Blasingim did not sustain an injury arising primarily out of and in the
       course and scope of his employment with Rite Hite.

        Tennessee Code Annotated section 50-6-102(13) (2014) defines "injury" and
"personal injury" to mean an injury by accident "arising primarily out of and in the
course and scope of employment .... " Tenn. Code Ann. § 50-6-102(13). An injury
"arises primarily out of and in the course and scope of employment" only if it has been
shown by a preponderance of the evidence that the employment contributed more than
fifty percent (50%) in causing the injury, considering all causes. Tenn. Code Ann. § 50-
6-102(13)(B).

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        The Tennessee Supreme Court has consistently held that to qualify as a
compensable workers' compensation claim, an injury must both "arise out of' and occur
"in the course of' employment:

              The phrase "in the course of' refers to time, place, and
              circumstances, and "arising out of' refers to cause or origin.
              "[A]n injury by accident to an employee is in the course of
              employment if it occurred while he was performing a duty he
              was employed to do; and it is an injury arising out of
              employment if caused by a hazard incident to such
              employment." Generally, an injury arises out of and is in the
              course and scope of employment if it has a rational
              connection to the work and occurs while the employee is
              engaged in the duties of his employment.

Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008) (quoting Orman v.
Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991)). It is well established that
the mere presence in the workplace at the time an injury occurs will not result in the
injury being considered as arising out of the employment. Instead, the injury must result
from a danger or hazard peculiar to the work or be caused by a risk inherent in the nature
of the work. Thornton v. RCA Serv. Co., 221 S.W.2d 954, 955 (Tenn. 1949).

        In this case, Mr. Blasingim testified that he sustained an injury while working and
"while doing the P.M.s on the levelers at Sysco," but he has no memory of how he
became injured. Mr. Blasingim offered no proof regarding the circumstances of the
injury, which Cloyd requires. He was similarly unable to identify with any specificity a
danger or hazard peculiar to his workplace or a risk inherent in the nature of his work, as
per Thornton. He contends that there are two ways the accident could have happened, but
did not give the details or offer proof of either mode of injury. Mr. Blasingim testified
that a videotape exists that provides some detail of the events of that day, but he did not
introduce that video into evidence. Further, he did not offer any eyewitness testimony
regarding how he became injured, or the testimony of Mr. Metz, who allegedly viewed
the videotape. In sum, although Mr. Blasingim was a credible witness, the totality of his
proof was insufficient at this time to permit this Court to grant the relief he seeks.

       Because Mr. Blasingim failed to satisfy his burden to show that his injury is work-
related, he is ineligible for medical or temporary disability benefits under the Workers'
Compensation Law. Based upon the evidence before the Court at this time, it is unlikely
that Mr. Blasingim would prevail at a hearing on the merits. Therefore, the Court must
deny his requests at this time.



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IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Blasingim's claim against Rite Hite and its workers' compensation carrier for
      the requested medical and temporary disability benefits is denied at this time.

   2. This matter is set for Initial Hearing on July 13, 2015, at 9:00a.m.

       ENTERED this the 27th day of May, 2015.



                                   enneth M. Switzer, Chief   g
                                  Court of Workers' Compensation Claims

Initial Hearing:

      An Initial Hearing has been set with Chief Judge Kenneth M. Switzer, Court of
Workers' Compensation Claims. You must call615-532-9552 or toll free at 866-
943-0025 to participate in the Initial Hearing.

       Please Note: 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. All conferences are set using Central Time (CT).


Right to Appeal :

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within seven (7) business days of the
      date the Workers' Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice ofAppeal upon the opposing party.

   4. The parties, having the responsibility of ensuring a complete record on appeal,
      may request from the Court Clerk the audio recording of the hearing for the
      purpose of having a transcript prepared by a licensed court reporter and filing it
      with the Court Clerk within ten ( 10) calendar days of the filing of the Expedited
      Hearing Notice of Appeal. Alternatively, the parties may file a statement of the

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          evidence within ten ( 10) calendar days of the filing of the Expedited Hearing
          Notice of Appeal. The Judge must approve the statement of the evidence before
          the Clerk of Court shall submit the record to the Clerk of the Appeals Board.

       5. If the appellant elects to file a position statement in support of the interlocutory
          appeal, the appealing party shall file such position statement with the Court Clerk
          within three (3) business days of the filing of the Expedited Hearing Notice of
          Appeal, specifying the issues presented for review and including any argument in
          support thereof. If the appellee elects to file a response in opposition to the
          interlocutory appeal, appellee shall do so within three (3) business days of the
          filing of the appellant's position statement.

                                   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 27th day
 of May, 2015.


Name                   Certified   First   Via   Fax      Via     Email Address
                       Mail        Class   Fax   Number   Email
                                   Mail
Eric Blasingim,        X                                  X       volbuider@:rahoo.com; Clock Creek
Employee                                                          Road, Cornersville, TN 37047
Lee Anne Murray,                                          X       leeamurray@feene:rmurra:r.com
Employer's attorney




                                              enny Sh urn, Clerk of Court
                                             Court of Workers' Compensation Claims
                                             WC.CourtClerk@tn.gov




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