                                                                                        FILED

                                                                                    April :5, 20.1 7

                                                                                  TNCO'URTOF
                                                                                   TI ORI\'.ll'..R S'
                                                                                 COAil'E.NSATION
                                                                                     CI.Alll-5

                                                                                   Time 3:38 A...\:I
            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT JACKSON

ROBERT LAWRENCE,                             )   Docket No. 2015-07-0147
         Employee,                           )
v.                                           )   State File No. 53531-2015
STOP N' SHOP,                                )
          Employer.                          )   Judge Allen Phillips


           COMPENSATION HEARING ORDER DENYING BENEFITS


        This matter came before the undersigned Workers' Compensation Judge on March
22, 2017, for a Compensation Hearing. Mr. Lawrence requested medical benefits for an
alleged knee injury. Stop N' Shop did not appear. Accordingly, the central legal issue is
whether Mr. Lawrence established by a preponderance of the evidence that he is entitled
to the requested benefits. The Court finds he did not do so and denies his claim.

                                    History of Claim

       After an Expedited Hearing, the Court issued an Order Denying Medical Benefits
on September 13, 2016. On December 9, 2016, the Court entered a Scheduling Order that
included the scheduling of this Compensation Hearing. Stop N' Shop did not appear for
any of the scheduled hearings.

      At the Compensation Hearing, Mr. Lawrence provided the same testimony, with
some elaboration, as at the Expedited Hearing and offered the same exhibits. He
produced no witnesses other than himself at the Compensation Hearing.

        The evidence at both hearings revealed Mr. Lawrence is a thirty-year-old resident
of Gibson County, Tennessee who worked for Stop N' Shop, a convenience store. He
testified that, on May 18, 2015, he was moving a case of soft drinks when the cashier on
duty, "David," confronted him. Mr. Lawrence testified that David began "getting in his
face," and, "next thing I know he got more [sic] closer to me and I go flying over [a case
on the floor]." This fall caused Mr. Lawrence to suffer what he described as a dislocation
of his right knee.

       At the Expedited Hearing, 1 Mr. Lawrence explained that his sister came to the
store on the night in question and David was talking to her. He "[b]elieve[d] [David's]
anger ... towards me [was] over my sister because he wanted, he liked her, he wanted to
date her but she wasn't, I guess she wasn't going for it, but that was part of the anger."
He offered no other theory of David's motive in his Expedited Hearing testimony.

       At the Compensation Hearing, Mr. Lawrence testified that, while he was working
in the cooler moving drinks, he heard some sort of commotion near the register. He went
to the register and found "David was doing things he was not supposed to be doing;"
namely, David was behaving inappropriately around female customers. Mr. Lawrence
told David he was behaving inappropriately. It was then that Mr. Lawrence's sister
arrived at the store and, according to Mr. Lawrence, rejected David's advances.

        At the Expedited Hearing, Mr. Lawrence's sister testified she was at the store on
the night in question but was unaware of any affection directed toward her by David. She
did not witness the incident between him and her brother and had no personal knowledge
of the event other than what her brother related to her.

         Mr. Lawrence has had no further contact with the employer since the night of the
mJury.

        At the Expedited Hearing, Mr. Lawrence testified he suffers from a learning
disability, the exact nature of which is unclear, but he did obtain a high school diploma.
At the Compensation Hearing, Mr. Lawrence testified, for the first time, that he served in
the Army for eight years. He did not elaborate upon either his military specialty or his
training.

       The Court readmitted the same medical records that Mr. Lawrence offered at the
Expedited Hearing. The records, from Innovative Orthopedics in Paris, Tennessee,
indicated he injured his knee when he "got into it with his boss." The provider at
Innovative diagnosed chondromalacia of the patella and recommended physical therapy.
At the Compensation Hearing, Mr. Lawrence testified he was seeing another practitioner
in Jackson who was to perform surgery in April 2017. However, he offered no medical
records from that provider, or any other, into evidence.

       As of the Compensation Hearing, Mr. Lawrence was not working and remains on
social security disability and Medicare. At the Compensation Hearing, he claimed he was
disabled due to the knee injury; but at the Expedited Hearing, Mr. Lawrence testified he
1
 The Court takes judicial notice of the evidence offered at the Expedited Hearing. See Hughes v. New life Dev.
Corp., 387 S. W.3d 453, 457 n. l (Tenn. 2012) (a court is permitted to take judicial notice of the facts from earlier
proceedings in the same action).

                                                         2
was already drawing social security and Medicare benefits at the time of his injury.

                          Findings of Fact and Conclusions of Law

                                    Standard applied

        At a Compensation Hearing, Mr. Lawrence must establish he is entitled to the
requested benefits by a preponderance of the evidence. Tenn. Code Ann. § 50-6-
239(c)(6) (2016). Though Mr. Lawrence elected to represent himself, as is his right, he
still "must comply with the same standards to which parties with legal counsel must
adhere." Thurmond v. Yates Servs., 2015 TN Wrk. Comp. App. Bd. LEXIS 34, at *6
(Sept. 8, 2015).

                                  Applicable authority

       Under the Workers' Compensation Law, '"the employer ... shall furnish, free of
charge to the employee, such medical and surgical treatment . . . made reasonably
necessary by accident[.]" Tenn. Code Ann. § 50-6-204(a)(l)(A) (2016). However, the
injury for which the employee seeks benefits must be caused by a specific incident, or set
of incidents, that arise "primarily" out of and in the course and scope of the employment,
meaning the contribution of the employment must be greater than fifty percent. Tenn.
Code Ann. § 50-6-102(14)(A) (2016). Further, "[a]n injury causes death, disablement or
the need for medical treatment only if it has been shown to a reasonable degree of
medical certainty that it contributed more than fifty percent (50%) in causing the death,
disablement or need for medical treatment, considering all causes." Tenn. Code Ann. §
50-6-102(14)(C) (2016).

                      Mr. Lawrence established a specific incident

        The Court finds Mr. Lawrence established the first required element of a
compensable injury by a preponderance of the evidence; namely, a specific incident
identifiable by time and place of occurrence. The uncontroverted evidence was that he
injured his knee in an altercation at Stop N' Shop.

    Mr. Lawrence did not establish an injury arising primarily out of his employment

       However, Mr. Lawrence did not establish an injury arising primarily out of and in
the course of his employment. Mr. Lawrence must show that his injury both arose out of
and occurred in the course and scope of his employment at Stop N' Shop. An injury
occurs in the course of employment if it takes place while the employee was performing a
duty the employer hired him or her to perform. Fink v. Caudle, 856 S.W.2d 952, 958
(Tenn. Workers' Comp. Panel 1993). Here, Mr. Lawrence offered sufficient evidence that
his injury was in the course of his employment; he was carrying a case of drinks as part

                                            3
of his work as a convenience store employee.

       However, he did not establish his injury arose primarily out of his employment.
An injury arises out of the employment when there is a causal connection between the
conditions under which the work must be performed and the resulting injury. Fritts v.
Safety Nat'/ Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005). Of particular importance
here is the principle that, "the mere presence of the employee at the place of injury
because of the employment is not enough, as 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."
Blankenship v. Am. Ordnance, 164 S.W.3d 350, 354 (Tenn. 2005). Accordingly, "an
injury purely coincidental, or contemporaneous, or collateral, with the employment ...
will not cause the injury ... to be considered as arising out of the employment." Jackson
v. Clark & Fay, Inc., 270 S.W.2d 389, 390 (Tenn. 1954).

        In arriving at its conclusion, the Court looks to Tennessee law relating to
workplace assaults, of which there are three categories. First, there are assaults with an
""inherent connection" to employment, such as disputes over performance, pay, or
termination. Second, there are assaults stemming from "'inherently private" disputes
imported into the employment from the claimanfs private life. Finally, there are assaults
resulting from a ''neutral force," such as random assaults on employees by individuals
outside the employment relationship. Woods v. Harry B. Woods Plumbing Co., 967
S.W.2d 768, 771 (Tenn. 1998). Here, the Court need consider only the first and second
categories and, when doing so, notes that assaults falling into the first category are
compensable. Wait v. Travelers lndem. Co. of Ill., 240 S.W.3d 220, 227 (Tenn. 2007).
Assaults falling into the second category are not. Woods, at 771.

        At the Expedited Hearing, Mr. Lawrence testified David "got in his face" over
David's apparent rejection by Mr. Lawrence's sister. At the Compensation Hearing, he
added that he inserted himself into what he considered an improper interaction between
David and female customers. Thus, he presented varying accounts of the night in
question. Absent an explanation or corroboration, contradictory statements by a witness
concerning the same fact cancel each other. Taylor v. Nashville Banner Pub. Co., 573
S.W.2d 476, 482-83 (Tenn. Ct. App. 1978). Assuming David confronted Mr. Lawrence
because of Mr. Lawrence's intervention at the register, the event arguably falls within the
first category of assaults, those with an inherent connection to the work, here a dispute
over "performance." This is different from his Expedited Hearing testimony that pointed
to a purely personal altercation, one involving Mr. Lawrence's sister. Notably, Mr.
Lawrence offered different testimony as to the source of his disability and his previous
vocational status.

        However, even assuming his elaboration at the Compensation Hearing to be true,
the Court cannot find a relationship between the assault and the work. Mr. Lawrence did
not attribute the assault to his confronting David over inappropriate behavior; instead, the

                                             4
preponderance of the evidence remained that the altercation resulted either from a private
dispute or from some other unknown cause. As at the Expedited Hearing, the only
connection to work appears to be the tangential fact that both men worked at Stop N'
Shop.

       As it noted previously, the Court sympathizes with Mr. Lawrence regarding both
his pain and his frustration at his treatment by his former employer. This is compounded
by the failure of Stop N' Shop to appear. However, even though Stop N' Shop failed to
appear, this Court cannot grant benefits to a claimant by default if the basic allegations of
the claim do not fit within the coverage formula of the law, namely that the
preponderance of the evidence did not establish the alleged injury arose primarily out of
Mr. Lawrence's employment.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Lawrence's claim against Stop N' Shop for medical benefits is denied.

   2. Stop N' Shop shall pay the $150.00 filing fee under Tennessee Compilation Rules
      and Regulations 0800-02-21-.07 (2016) directly to the Clerk within five business
      days of the date of this final order, for which execution may issue as necessary.

   3. Stop N' Shop shall file a Statistical Data form within ten business days of entry of
      this final order.

       ENTERED this the 5th day of April ,.




                                   Judge Allen Phi i s
                                   Court of Workers' Compensa




                                             5
                                      APPENDIX


Exhibits:

   1. Affidavit of Robert Lawrence; and
   2. Medical Records of Innovative Orthopedics (Dr. Cutright).


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 Compensation Hearing Order
was sent to the following recipients by the following methods of service on this the 5th
day of April, 2017.

Name                        Certified Via       Via     Service sent to:
                            Mail      Fax       Email
Robert Lawrence,               x
Self-Represented                                        1317 North 13th Ave.,
Employee                                                Humboldt, TN 38343
Mohammed El Maliki,             x
Self-Represented                                        524 North Central Ave.,
Employer                                                Humboldt, TN 3 8343



                                            ~   ))µUk-- '
                                           ~!-----
                                        Penny Shrum, Clerk of Court
                                        Court of Workers' Compensation Claims
                                        WC.CourtClerk@tn.gov

                                            6
