The opinion
FILED
May 02, 2018
07:56 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
EDWARD OGLESBY, ) Docket No.: 2017-08-1148
Employee, )
V. )
)
UNITED PARCEL SERVICE. INC., ) State File No.: 68608-2017
Employer, )
And )
LIBERTY MUTUAL INS. CoO., ) Judge Deana C. Seymour
Carrier. )
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
Mr. Oglesby requested medical and temporary disability benefits for an injury on
September 4, 2017. UPS denied his claim on grounds that he violated a safety rule. The
Court heard the contested issues at an Expedited Hearing on April 6, 2018, and holds
UPS failed to establish it would likely prevail on its defense at a hearing on the merits.
Thus, the Court holds Mr. Oglesby is entitled to medical benefits but finds he did not
present sufficient evidence to prove entitlement to temporary disability benefits at this
time.
History of Claim
Mr. Oglesby was a plant engineering mechanic for UPS. On September 4, he
attempted to repair a stopped conveyor belt on an unloader machine. The power to the
unloader was on, but the belt was not moving. An illuminated belt-tracking light on the
control panel indicated the conveyor belt was off track. He noted the conveyer belt was
misplaced further off track than other belts he had seen. He concluded the conveyer belt
stopped because it had tracked off line.
Mr. Oglesby elected to adjust the pulley located underneath the front of the
unloader to center the belt to track properly. The unloader was powered up and had the
ability to run, so Mr. Oglesby chose to perform a live (power on) tracking repair to see
the belt run as he adjusted the pulley. Mr. Oglesby stated that he asked a hub operations
1
manager, Nate Barker, to stand by the power disconnect panel to turn the unloader off
during repair if necessary.’ He lay on his back and removed a guard to determine where
to make the belt adjustments.” The belt began to move and pulled Mr. Oglesby’s right
arm into the unloader. Mr. Barker heard Mr. Oglesby’s scream and hit the disconnect
switch.
Rodney Robinson, UPS’s facility engineering manager, described Mr. Oglesby as
a good, safety-conscious employee but testified that he should have powered off the
unloader while he inspected it. > Mr. Oglesby could then have elected to turn on the
machine and perform a live conveyor repair if necessary. Mr. Robinson acknowledged
UPS’s safety rules did not require an employee to turn off the unloader before performing
a live repair. Mr. Robinson testified that once Mr. Oglesby determined what he needed to
repair the conveyer, “it’s his discretion whether it’s a live conveyor repair.”
Mr. Robinson further testified he visited Mr. Oglesby in the hospital where Mr.
Oglesby told him that he reached for debris “and the next thing he knew, he was hung in
the machine.” Mr. Oglesby did not recall that exchange with Mr. Robinson and denied he
grabbed debris while beneath the unloader. Mr. Robinson said he did not see paper or
debris at the scene.
Mr. Robinson sent an email to UPS’s human resources and his management team
regarding Mr. Oglesby’s admission. Mr. Robinson testified that UPS determined the belt
stopped because the belt tracking switch activated, but UPS did not know what activated
the switch. Andy Holliman, plant engineering supervisor, testified by deposition that, in
his opinion, a live conveyor repair cannot be performed on a nonmoving conveyor belt.
However, he did not see Mr. Oglesby working on the conveyor belt on September 4, and
he agreed he did not know why the conveyor stopped.
Nate Barker testified he saw Mr. Oglesby initially disconnect the power from the
unloader, then reconnect the power before he began his repair.’ Mr. Barker was standing
near the emergency disconnect button when he heard Mr. Oglesby scream and
immediately hit the emergency stop to turn off the unloader.
' Nate Barker denied Mr. Oglesby asked him to stand by the power disconnect. UPS argued Nate Barker
did not know about live conveyor repair but conceded he was a member of management.
* Mr. Ogelsby used a key he was authorized to carry to unlock the machine guard.
3 Mr. Robinson testified in person at trial, and his deposition, containing twenty-one exhibits, was
introduced into evidence. The Court reviewed the deposition, considered all objections, and accepted all
testimony and exhibits in reaching its decision.
“ Mr. Oglesby testified he did not remember disconnecting the power from the unloader or Mr. Barker
asking him if he intended to disconnect the power before returning underneath the unloader.
UPS denied Mr. Oglesby’s claim, asserting he willfully violated a safety rule when
he failed to “lock out and tag out,” which means he failed to power-off the machine
before crawling underneath it. UPS contended that violation of this rule barred Mr.
Oglesby’s claim.
For his part, Mr. Oglesby asserted he was performing a “live conveyor repair”
under UPS’ safety policy and procedures, consistent with his experience and training. He
testified this routine repair allowed him to inspect the conveyor belt as he adjusted the
pulley to move the belt on line.
Findings of Fact and Conclusions of Law
Standard applied
The parties stipulated the injury occurred at work.
UPS bears the burden of proof on the essential elements of its affirmative defense.
Roper v. Allegis Group, 2017 TN Wrk. Comp. App. Bd. LEXIS 14 (Feb. 10, 2017). It
must present sufficient evidence from which this Court might determine it is likely to
prevail on its defense at a hearing on the merits.
Misconduct defense
Tennessee Code Annotated section 50-6-110(a)(4) (2017) provides that no
compensation shall be allowed for an injury due to an employee’s “willful failure or
refusal to use a safety device.” After careful consideration, the Court holds UPS is
unlikely to meet its burden of establishing all elements of this defense at a hearing on the
merits.
In Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442 (Tenn. 2012),° the Supreme
Court held that an employer must prove the following to prevail on a safety rule defense:
(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 excuse for
violating the rule. Jd. at 453.
Here, the proof shows that UPS trained Mr. Oglesby in all areas of its policies and
procedures, which included lock out/tag out and live tracking repairs. UPS provided him
with training materials and courses related to maintenance and tracking repairs. Mr.
Oglesby acknowledged his extensive training through UPS. He diagnosed the belt
tracking issue without having to turn off the unloader. Mr. Oglesby intended to perform a
° The Appeals Board cited Mitchell v. Fayetteville Pub. Utils. as applicable to cases under the Reform Act
of 2013 in Gonzales v. ABC Prof’ | Tree Servs., 2014 TN Wrk. Comp. App. Bd. LEXIS 2 (Nov. 20,
2014). The Mitchell Court also noted that the violation of a safety rule is analogous to willful failure to
use a safety device. 368 S.W.3d at 453.
“live conveyor repair” under UPS’s safety policy and procedures, consistent with his
experience and training. Mr. Robinson acknowledged that UPS’s rules do not require that
an employee turn off the unloader to make this repair and that the decision to undertake a
live conveyor repair is discretionary.
Based on this evidence, the Court cannot conclude that Mr. Oglesby violated a
safety rule. To the contrary, at this time, the evidence shows he performed the task in an
acceptable manner. The evidence is insufficient to show that Mr. Oglesby intentionally
violated a safety rule.
Thus, the Court holds UPS failed to establish it would likely prevail on its defense
at a hearing on the merits and that Mr. Oglesby has shown he is likely to prevail at a
hearing on the merits regarding his claim for benefits.
Medical Benefits
Having found Mr. Oglesby is likely to prevail at a hearing on the merits, the Court
holds he is entitled to medical benefits in accordance with Tennessee Code Annotated
section 50-6-204 (2017). Therefore, UPS “shall furnish [Mr. Oglesby] . . . such medical
and surgical treatment . . . made reasonably necessary by [his] accident[.]” Tenn. Code
Ann. § 50-6-204(a)(1)(A). In addition to payment of medical bills incurred to date, UPS
shall furnish Mr. Oglesby a panel of physicians competent to treat his injuries related to
the claim.
Temporary Disability Benefits
To establish entitlement to temporary disability benefits, Mr. Oglesby must show
(1) he became disabled from working due to a compensable injury; (2) a causal
connection exists between the injury and his inability to work; and (3) the specific
duration of his disability. Jones v. Crencor, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at
*7 (Dec. 11, 2015).
Here, Mr. Oglesby did not establish the time he was unable to work because of his
injury. Therefore, the Court finds Mr. Oglesby did not present sufficient evidence to
demonstrate his entitlement to temporary disability benefits at this time. The Court notes
that Mr. Oglesby sustained a substantial right arm injury and has not yet returned to
work. Therefore, the parties may determine the amount of temporary disability benefits to
which Mr. Oglesby is entitled. Otherwise, Mr. Oglesby may file a request for hearing to
present proof to the Court related to this issue.
IT IS, THEREFORE, ORDERED as follows:
1. UPS shall pay for medical treatment incurred to date and provide Mr. Oglesby with a
panel of physicians pursuant to Tennessee Code Annotated section 50-6-204.
2. Mr. Oglesby’s request for temporary disability benefits is denied at this time.
3. This matter is set for a Scheduling (Status) Hearing on June 11, 2018, at 10:00 a.m.
Central Time. You must call 615-532-9550 or toll-free at 866-943-0014 to
participate in the Hearing. Failure to call may result in a determination of the
issues without your participation.
4. 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). The Insurer
or Self-Insured Employer must submit confirmation of compliance with this Order to
the Bureau by email to WCCompliance.Program@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. For questions regarding compliance, please contact the Workers’
Compensation Compliance Unit via email at WCCompliance.Program@tn.gov .
ENTERED this the.\_ day of May, 2018.
Pa
JUDGE DEANA C. SEYMOUR
Court of Workers’ Compensation Claims
~
APPENDIX
Exhibits:
l.
PIAARWH
9.
Affidavit of Edward Oglesby
Medical bills from Regional One Health
2017 Compliance/CHSP Assessment — Lockout Authorized Employee - DOK
Safe Work Methods — Plant Engineering — Training Form
Certificate of Completion 0193 —- HS CBT Lockout dated May 24, 2017
CHSP/4:1 Process Observation Form: P/E Mechanic
Certificate of Completion 0193 - HS CBT Lockout dated February 1, 2017
Annual Periodic Inspection and Employee Observation Form
Form C-20 Employer’s First Report of Work Injury or Illness
10. Form C-23 Notice of Denial of Claim for Compensation
11.Form C-41 Wage Statement
12. Deposition transcript of Rodney Robinson with exhibits
'13. Deposition transcript of Andy Holliman
14. Deposition transcript of Edward Oglesby
Technical Record:
WR WN
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
UPS’s Expedited Hearing Submission
Mr. Oglesby’s Pre-Hearing Brief
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 2nd day of
May 2018.
Name Certified | Via Via_ | Service sent to:
Mail Fax Email
William Ryan, Xx billy@donatilaw.com
Employee’s Attorney
Garrett Estep, x gestep@farris-law.com
Employer’s Attorney
Jur Ml ao
Penny Shrum, Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
Filed Date Stamp Here EXPEDITED HEARING NOTICE OF APPEAL nyo cet #:
Tennessee Division of Workers’ Compensation
www.tn.gov/labor-wfd/wcomp.shtml State File #/YR:
wc.courtclerk@tn.gov
1-800-332-2667 RFA #:
Date of Injury:
SSN:
Employee
Employer and Carrier
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals Board.
[List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
L] Temporary disability benefits
CL] Medical benefits for current injury
L] Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: Employer LJEmployee
Address:
Party’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
LB-1099__rev.4/15 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party):_ At Hearing: ClEmployer (JEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney's City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
|, , certify that | have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers’ Compensation Appeals on this the day of ,20_.
[Signature of appellant or attorney for appellant]
LB-1099_ rev.4/15 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of All Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam employed by:
My employer’s address is:
My employer's phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSsl $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker’s Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: |:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe: )
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082