The opinion
FILED
May 25, 2018
01:54 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
STEVEN CROSS, ) Docket No. 2018-06-0104
Employee, )
v. )
CABINET EXPRESS, LLC, ) State File No. 90526-2017
Employer, )
And )
SUMMIT INSURANCE COMPANY, ) Judge Joshua Davis Baker
Carrier. )
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
This case came before the Court on May 15, 2018, for an expedited hearing. The
present focus of this case is Mr. Cross’ entitlement to medical benefits.1 Cabinet Express
argued that his injury did not arise out of and in the course and scope of his employment. 2
The Court finds Mr. Cross would likely prevail at a hearing on the merits in proving his
injury arose primarily out of and in the course and scope of his employment and orders
Cabinet Express to provide him medical benefits.
History of Claim
The case concerns the breadth of an employee’s work responsibilities. On
November 21, 2017, Mr. Cross suffered an injury when a large slab of granite fell on
him. Mr. Cross testified the incident occurred “first thing in the morning” shortly after he
clocked in. At the time of the injury, Mr. Cross’ work assignment was to make a
delivery.
1
Mr. Cross waived the issue of temporary disability benefits at this expedited hearing.
2
Cabinet Express also raised the affirmative defenses of intoxication and failure to follow a safety rule in
the dispute certification notice but waived these defenses at the expedited hearing.
1
Before making the delivery, Mr. Cross took a cardboard template to the draftsman
at Cabinet Express and informed the drafter he wanted granite cut from the template for
use in a job he was doing on the side. Mr. Cross then went into the remnant yard, an
unfenced area on Cabinet Express’ property where it stores pieces of granite leftover after
custom cutting larger pieces. According to Ben Ruppert, the operations manager,
Cabinet Express disposes of any granite in the remnant yard that goes unsold.
The remnant yard sits next to the area where the Cabinet Express parks its delivery
trucks. Mr. Cross went into the field to search for a piece of granite for use in the side
job. As he looked through the pieces searching for the correct color, a slab of granite fell
on Mr. Cross, breaking his leg. The first report of injury stated, “The IW was alone in an
unauthorized area while he was taking a slab off the A frame but the slab fell onto his
right thigh causing a fracture.”
While Cabinet Express initially provided Mr. Cross a panel of physicians, it
denied the claim nine days later. Mr. Cross sought medical care with Dr. John Tullos.
Cabinet Express cited Mr. Cross’ alleged deviation from his employment duties as
the reason for denying the claim. Under this theory, much of the testimony concerned the
reason for Mr. Cross’ presence in the remnant yard that morning. Mr. Ruppert testified
that none of Mr. Cross work duties as an installer or delivery driver at Cabinet Express
required, or allowed, him to go into the granite remnant yard because the yard “has no
relevance to [Mr. Cross’] job.” Another Cabinet Express employee, Ryan Griggs,
however, stated that he had gone into the remnant yard to search for granite.
Mr. Ruppert additionally testified that Cabinet Express allows its employees to
perform work on the side so that they can make extra money. The employee may bring a
template of the necessary granite to Cabinet Express, and Cabinet Express will measure
the template and give the employee the granite at essentially wholesale price. Mr.
Ruppert said that employees do this type of work about five to ten times per year. He
further stated, however, that employees usually receive his approval before doing work
on the side. Mr. Ruppert said he first heard about the job after Mr. Cross’ injury.
According to Mr. Ruppert, Mr. Cross told him he was in the remnant yard “looking for a
piece [of granite] for a friend for a side job.”
Mr. Cross denied he was looking for granite for a “friend,” but he admitted he was
searching for a piece to use in a job he intended to complete with Ryan Griggs, another
Cabinet Express employee. Mr. Griggs testified that Mr. Cross approached him about
doing work on the side several days before the accident. Mr. Griggs had done “side jobs”
in the past, and he had purchased granite for friends from Cabinet Express about five
times in a six-year period.
2
Mr. Cross testified that many people know what he does for a living, and those
people sometimes approach him seeking granite at a lower price, as Cabinet Express
allows its employees to purchase granite for wholesale prices. Mr. Cross said if he finds
the type of granite someone wants in the remnant yard, they will buy that granite from
Cabinet Express. Mr. Griggs said he also went into the remnant yard to search for pieces
of granite. After the accident, Mr. Cross and Mr. Griggs never completed the side job.
Findings of Fact and Conclusions of Law
Mr. Cross need not prove every element of his claim by a preponderance of the
evidence to obtain relief at an expedited hearing. Instead, he must present sufficient
evidence that he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-
6-239(d)(1); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *7-8, 9 (Mar. 27, 2015). The Court finds Mr. Cross would likely prevail at
a hearing on the merits.
In order for Mr. Cross to be eligible for benefits, he must have suffered an injury,
as defined by the Workers’ Compensation Law. Under the Workers’ Compensation Law,
an “injury” means “an injury by accident . . . arising primarily out of and in the course
and scope of employment, that causes death, disablement, or the need for medical
treatment of the employee[.]” “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(14). The analysis turns on
“whether the employee’s work activities more likely than not caused the accident,” and
“the . . . phrase arises primarily out of and in the course and scope of employment is
satisfied if the trial court determines . . . by a preponderance of the evidence that the
employment contributed more than fifty percent (50%) in causing the injury, considering
all causes.” Navyac v. Universal Health Serv’s, 2016 TN Workers’ Comp. App. Bd.
LEXIS 17, *12-13 (Mar. 31, 2016) (Internal quotations omitted).
Although the finding referenced above satisfies the statutory requirement, some of
the terms within the definition require explanation for completeness. “An injury occurs
in the course of employment if ‘it takes place within the period of the employment, at a
place where the employee reasonably may be, and while the employee is fulfilling work
duties or engaged in doing something incidental thereto.’” Hubble v. Dyer Nursing
Home, 188 S.W.3d 525, 534 (Tenn. 2006). Arising primarily out of employment refers to
causation. An injury arises out of employment when there is a causal connection
between the conditions under which the work is required to be performed and the
resulting injury. Fritts v. Safety Nat’l Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005).
Put another way, an injury arises out of employment when it “has a rational, causal
connection to the work.” Braden v. Sears, Roebuck & Co., 833 S.W.2d 496, 498 (Tenn.
3
1992). Additionally, “compensation should not be permitted unless the employee acts in
some way for the benefit of or in furtherance of the interests of his employer, or pursuant
to instructions given by the employer.” Lennon v. Ridge, 412 S.W.2d 638, 644 (Tenn.
1967).
Additionally, “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.” Willis v. All Staff,
2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *19 (Nov. 9, 2015). 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.” Id.
Mr. Cross suffered his injury while on the clock, on Cabinet Express’ premises,
and in area where he might reasonably have been. While Cabinet Express’ counsel stated
repeatedly that Mr. Cross should not have been in the remnant yard, Cabinet Express
presented no evidence showing that Mr. Cross was forbidden from entering the yard.
Further, another employee, Mr. Griggs, testified he went into the remnant yard to search
for granite.
The unfenced remnant yard was located next to the area where Cabinet Express
parked delivery trucks. That morning, Mr. Cross’ job duties required him to make a
delivery. His passage into the remnant yard to look for granite for use in work on the
side—work that Cabinet Express allows its employees to do—did not, in this Court’s
opinion, take him outside the course and scope of his employment. Further, the Court
holds the injury also arose out Mr. Cross’ employment because Cabinet Express allows
its employees to work on the side and ultimately benefits through the sale of granite that
would otherwise be discarded if left unsold.
Tennessee law requires an employer to provide an injured employee medical and
surgical treatment “made reasonably necessary” by a workplace accident at no cost to the
employee. This process generally begins with the employer giving the employee a list of
three “independent reputable physicians” so that the employee may choose one to be the
treating physician.” See Tenn. Code Ann. § 50-6-204(a)(3)(A). If an employer fails to
provide a three-physician panel, it risks having to pay for all reasonable and necessary
medical expenses incurred by an employee through treatment with an unauthorized
physician. See Lindsey v. Strohs Cos., Inc., 830 S.W.2d 899, 902-3 (Tenn. 1992);
McCreary v. Yasuda Fire & Marine Ins. Co. of Amer., No. 01S01-9507-CH-00106, 1996
Tenn. LEXIS 102, at *5-6 (Tenn. Workers’ Comp. Panel Feb. 20, 1996).
Cabinet Express denied this claim without providing Mr. Cross a panel. Mr. Cross
sought and received treatment from Dr. John Tullos for the injury. He asked that the
Court name him as the authorized treating physician. The Court grants this request.
4
IT IS, THEREFORE, ORDERED as follows:
1. Cabinet Express shall provide Mr. Cross reasonable and necessary medical care
with Dr. John Tullos to serve as the authorized treating physician. Dr. Tullos or
Mr. Cross shall provide Cabinet Express with any bills for treatment.
2. This matter is set for a Scheduling Hearing on Monday, July 23, 2018, at 10:00
a.m. (CDT). You must call 615-741-2113 or toll-free at 855-874-0474 to
participate in the Hearing. Failure to call in may result in a determination of
the issues without your further participation.
3. 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)
(2016). 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 WCCompliance.Program@tn.gov.
ENTERED ON MAY 25, 2018.
_____________________________________
Judge Joshua Davis Baker
Court of Workers’ Compensation Claims
5
APPENDIX
Exhibits:
1. Rule 72 Declaration of Steven Cross\
2. Medical Records
3. Photograph
4. Time Sheets
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Cabinet Express’ Response to Request for Expedited Hearing
6
CERTIFICATE OF SERVICE
I 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 May 25, 2018.
Name Certified Via Via Service sent to:
Mail Fax Email
Zachary Wiley X zwiley@forthepeople.com
Chad Jackson X cjackson@morganakins.com
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
7
Filed Date Stamp Here EXPEDITED HEARING NOTICE OF APPEAL Docket #: _______________________
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]
☐ Temporary disability benefits
☐ Medical benefits for current injury
☐ Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): ___At Hearing: ☐Employer ☐Employee
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: ☐Employer ☐Employee
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
I, , certify that I 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, I 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. I am 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. I receive or expect to receive money from the following sources:
AFDC $ ________ per month beginning
SSI $ ________ 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 $ ________ per month 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
I 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
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.