Bullard, Kimberly v. Facilities Performance Group

FILED

Aug 07, 2018

03:10 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

(HEARD JULY 10, 2018 AT NASHVILLE) 1

Kimberly Bullard ) Docket No. 2017-08-1053

)

v. ) State File No. 71623-2017

)

Facilities Performance Group, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Amber E. Luttrell, Judge )

Affirmed and Remanded—Filed August 7, 2018

The employee, a janitorial crew member, suffered injuries to her arm when she missed a

step exiting a building and fell. The employer denied the claim, asserting that the injury

was idiopathic because the fall occurred on a single step outside the building which,

according to the employer, was not a hazard peculiar to the employee’s work. The trial

court concluded that the employee’s injury was not idiopathic and that the step was a

hazard of her employment. The court awarded medical benefits but denied the

employee’s requests for temporary disability benefits and the payment of certain medical

expenses. The employer has appealed. We affirm the decision of the trial court and

remand the case.

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in

which Judge Timothy W. Conner and Judge David F. Hensley joined.

Paul Nicks, Germantown, Tennessee, for the employer-appellant, Facilities Performance

Group

John Dunlap, Memphis, Tennessee, for the employee-appellee, Kimberly Bullard

1

We wish to extend our appreciation to the Nashville School of Law for allowing us the use of its

facilities to hear oral argument in this case.

1

Factual and Procedural Background

Kimberly Bullard (“Employee”), a fifty-one-year-old resident of Shelby County,

Tennessee, was employed by Facilities Performance Group (“Employer”) as a custodian.

She was a member of a janitorial crew tasked with cleaning buildings for businesses with

which Employer had contracted to provide cleaning services. She and her co-workers

cleaned roughly thirty buildings each shift.

On September 19, 2017, Employee was leaving a building she had finished

cleaning and, while walking out the door, fell to the concrete when she missed a step

from the building to the ground and broke her left arm. Employee testified that there was

nothing wet or slick on the step, that she did not have anything in her arms at the time of

the fall, and that she simply forgot the step was there.

Employee was transported to a clinic and then to the emergency room of a

hospital. The following day, Employer’s workers’ compensation insurance carrier took

Employee’s statement, after which Employer denied the claim on the basis that the injury

resulted from an idiopathic fall. Employee then sought unauthorized medical treatment

with Dr. John B. Williams, an orthopedic surgeon, who performed multiple surgeries on

Employee’s broken arm.

Employee filed a petition asserting that her injuries arose primarily out of her

employment and that she was entitled to medical and temporary disability benefits. At an

expedited hearing, the parties stipulated Employee had fallen and that she had suffered

injuries. However, Employer continued to assert that Employee’s injuries did not arise

out of the employment because the single step from which she fell was not a hazard

peculiar to her employment. Employer argued that most buildings have either a step or a

curb at or near its doors to prevent water from entering the building and, therefore, the

hazard that caused Employee’s fall is one to which the general public is equally exposed.

The trial court found Employee was likely to prevail at trial in establishing that her

injury arose primarily out of her employment and was not the result of an idiopathic

event. The court explained that Employee “was exiting the building because her job

required it,” that “the area included a step that resulted in her fall,” and that “the step

constituted a specific hazard of [Employee’s] employment beyond mere ambulation.”

The court further found that Employee justifiably sought medical treatment on her own

after Employer denied the claim and that Employer was obligated to authorize treatment

with Dr. Williams. The trial court denied Employee’s request for reimbursement of past

medical expenses and temporary disability benefits. 2 Employer has appealed.

2

Employee has not appealed the trial court’s denial of her requests for temporary disability benefits and

for payment of past medical expenses. Thus, we do not address those issues.

2

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the

court’s factual findings are correct unless the preponderance of the evidence is otherwise.

See Tenn. Code Ann. § 50-6-239(c)(7) (2017). When the trial judge has had the

opportunity to observe a witness’s demeanor and to hear in-court testimony, we give

considerable deference to factual findings made by the trial court. Madden v. Holland

Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar

deference need be afforded the trial court’s findings based upon documentary evidence.”

Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at

*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and

application of statutes and regulations are questions of law that are reviewed de novo with

no presumption of correctness afforded the trial court’s conclusions. See Mansell v.

Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are

also mindful of our obligation to construe the workers’ compensation statutes “fairly,

impartially, and in accordance with basic principles of statutory construction” and in a

way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-

116 (2017).

Analysis

A.

As an initial matter, we note that both parties cite Tennessee Code Annotated

section 50-6-217(a)(3) (2016) (repealed 2017) in support of their positions on appeal.

Section 50-6-217(a)(3) authorized us to reverse or modify a trial court’s decision if the

rights of a party were prejudiced because the findings of the trial judge were “not

supported by evidence that is both substantial and material in light of the entire record.”

However, as we have observed on numerous occasions, this code section was repealed

effective May 9, 2017. 3 Consequently, as noted above, the standard we apply in

reviewing the trial court’s decision presumes that the trial judge’s factual findings are

3

See Duignan v. Stowers Machinery Corp., No. 2017-03-0080, 2018 TN Wrk. Comp. App. Bd. LEXIS

25, *8-9 (Tenn. Workers’ Comp. App. Bd. May 29, 2018); Ogden v. McMinnville Tool & Die, Inc., No.

2016-05-1093, 2018 TN Wrk. Comp. App. Bd. LEXIS 14, at *9-10 (Tenn. Workers’ Comp. App. Bd.

May 7, 2018); Edwards v. Fred’s Pharmacy, No. 2017-06-0526, 2018 TN Wrk. Comp. App. Bd. LEXIS

9, at *5-6 (Tenn. Workers’ Comp. App. Bd. Feb. 14, 2018); Bowlin v. Servall, LLC, No. 2017-07-0224,

2018 TN Wrk. Comp. App. Bd. LEXIS 6, at *6-7 (Tenn. Workers’ Comp. App. Bd. Feb. 8, 2018);

Thompson v. Comcast Corp., No. 2017-05-0639, 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *12-13

(Tenn. Workers’ Comp. App. Bd. Jan. 30, 2018); Baker v. Electrolux, No. 2017-06-0070, 2017 TN Wrk.

Comp. App. Bd. LEXIS 65, at *5-6 (Tenn. Workers’ Comp. App. Bd. Oct. 20, 2017); Butler v. AAA

Cooper Transportation, No. 2016-07-0459, 2017 TN Wrk. Comp. App. Bd. LEXIS 54, at *5-6 (Tenn.

Workers’ Comp. App. Bd. Sept. 12, 2017); Glasgow v. 31-W Insulation Co., Inc., No. 2017-05-0225,

2017 TN Wrk. Comp. App. Bd. LEXIS 51, at *11-12 (Tenn. Workers’ Comp. App. Bd. Sept. 6, 2017).

3

correct unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-

239(c)(7).

B.

Turning to the merits of this appeal, the sole issue is whether the trial court erred

in concluding Employee’s fall resulted from a hazard incident to her employment and,

therefore, was not idiopathic. 4 We agree with the trial court and affirm.

An injured worker has the burden of proof on every essential element of his or her

claim. See Tenn. Code Ann. § 50-6-239(c)(6); see also Buchanan v. Carlex Glass Co.,

No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Tenn. Workers’

Comp. App. Bd. Sept. 29, 2015). At an expedited hearing, an employee is able to meet

this burden by presenting sufficient evidence from which the trial court can determine

that the employee is likely to prevail at trial consistent with Tennessee Code Annotated

section 50-6-239(d)(1). McCord v. Advantage Human Resourcing, No. 2014-06-0063,

2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers’ Comp. App. Bd. Mar.

27, 2015). This lesser evidentiary standard “does not relieve an employee of the burden

of producing evidence of an injury by accident that arose primarily out of and in the

course and scope of employment at an expedited hearing, but allows some relief to be

granted if that evidence does not rise to the level of a ‘preponderance of the evidence.’”

Buchanan, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6. At trial, the standard of

proof is higher, i.e., an injured worker must establish the essential elements of his or her

claim by a preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6).

As noted, Employer denied Employee’s claim based on its belief that her injury

was idiopathic. “An idiopathic injury is one that has an unexplained origin or cause, and

generally does not arise out of the employment unless ‘some condition of the

employment presents a peculiar or additional hazard.’” McCaffery v. Cardinal Logistics,

No. 2015-08-0218, 2015 TN Wrk. Comp. App. Bd. LEXIS 50, at *9 (Tenn. Workers’

Comp. App. Bd. Dec. 10, 2015) (citation omitted). However, “[a]n injury that occurs due

to an idiopathic condition is compensable if an employment hazard causes or exacerbates

the injury.” Id. at *10. “Cause in this context is not proximate cause as used in the law

of negligence; rather, cause means that the accident originated in the hazards to which the

employee was exposed as a result of performing his job duties.” Id. (internal quotation

marks and citations omitted).

4

In their briefs on appeal, both parties characterize the issue as whether Employee’s injury occurred in

the course and scope of her employment. However, at oral argument, the parties agreed that the injury

occurred while Employee was acting within the course and scope of her employment and that the issue to

be decided on appeal is whether the injury arose primarily out of the employment. See Orman v. Williams

Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991) (“The phrase ‘in the course of’ refers to time, place, and

circumstances, and ‘arising out of’ refers to cause or origin.”).

4

Employer, in asserting that the trial court erred in concluding Employee’s fall was

not an idiopathic event, relies on English v. G4S Secure Solutions, No. 2016-05-0261,

2016 TN Wrk. Comp. App. Bd. LEXIS 48 (Tenn. Workers’ Comp. App. Bd. Sept. 7,

2016). In English, the employee fell while exiting a building where she worked. Id. at

*1. There were wet leaves on the ground, which the employee believed she might have

slipped on. Id. However, ultimately, her testimony was that she was unsure what caused

her to fall, and the trial court found the fall was idiopathic and the resulting injuries were

not compensable. Id. at *4. We affirmed the trial court, as the employee was unable to

remember the fall itself and, thus, was unable to describe a hazard incident to her

employment that caused her injury. Id. at *5-6.

By contrast, the employee in the present case has been able to describe with

particularity what caused her to fall, namely, she was exiting a building, forgot a step was

there, missed the step, and fell to the concrete. This is not an idiopathic injury, as it is

neither one of unexplained origin or cause, nor the result of a condition purely personal to

the employee. See Veler v. Wackenhut Servs., No. E2010-00965-WC-R3-WC, 2011

Tenn. LEXIS 78, at *9 (Tenn. Workers’ Comp. Panel Jan. 28, 2011). As we have

previously explained, “[t]he focus is on the causal link between the employment and the

accident or injury, rather than a causal link between the employment and the idiopathic

episode.” McCaffery, 2015 TN Wrk. Comp. App. Bd. LEXIS 50 at *11. Employee fell

as she was exiting one building, which she had been cleaning, to go clean the next

building assigned to her crew. To fulfill her cleaning assignments, she was required to

navigate varying numbers of stairs in and out of the buildings while on the clock, a point

Employer’s witnesses readily acknowledged. 5

Employer makes several points regarding the circumstances of Employee’s fall

that it maintains militate against a finding that her injuries are compensable. Specifically,

it asserts Employee knew the step existed, that she had navigated the step on many

occasions, that the step was free from defects, and that Employee described the step as

“marginal.” However, these arguments sound in negligence which, of course, is not a

defense or even a factor in determining whether a claim is compensable. See Tenn. Code

Ann. § 50-6-103(a) (2017) (Employers and employees subject to the workers’

compensation laws shall pay and accept, respectively, the benefits provided by statute

“without regard to fault as a cause of the injury or death.”).

5

Employee testified that she did not consider going in and out of buildings to be part of her job duties but,

rather, part of her “routine.” Regardless, there is no dispute that, in order to move from building to

building as she cleaned, she was required to enter and exit the buildings and that she remained on the

clock while doing so. It is well-established that a worker remains within the course and scope of the

employment while on the premises. See, e.g., Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 150

(Tenn. 1989). Thus, while entering and exiting buildings may not have been among her enumerated job

duties, Employee remained in the course of her employment while performing incidental duties, including

moving from one building to another in order to perform her job functions, all while on the clock. See

Carter v. Volunteer Apparel, Inc., 833 S.W.2d 492, 494 (Tenn. 1992).

5

In addition, Employer argues that a single step is not a hazard peculiar to the

employment because most buildings have a step or curb at its doors to prevent water from

entering the building. Thus, Employer contends, a single step cannot be a hazard incident

to one’s employment because most people must navigate such a step when entering or

exiting a building, whether in a working or personal capacity. Yet, Employer asserts that

more than one step, or even a single step from the interior of the building to the exterior,

would be a hazard incident to the employment. In our view, drawing such fine lines is

neither necessary nor advisable.

An injury arises out of the employment if it is “caused by a hazard incident to such

employment.” Orman, 803 S.W.2d at 676. Our Supreme Court, addressing what

constitutes a hazard of employment in the context of injuries that occur while walking,

has observed that “Tennessee courts have consistently held that an employee may not

recover for an injury occurring while walking unless there is an employment hazard, such

as a puddle of water or a step, in addition to the injured employee’s ambulation.”

Wilhelm v. Kroger, 235 S.W.3d 122, 128-29 (Tenn. 2007) (emphasis added) (citations

omitted). Such is the case here – Employee missed a step at work and fell.

Central to Employer’s argument is that the hazard of a single step exiting or

entering a building is one that is universal to the public. However, Employer has

provided nothing other than counsel’s arguments in support of this proposition. The

record contains no proof from an engineer or architect or other qualified individual that

all buildings have a step or curb. Arguments of counsel are not evidence, see Martin v.

Norfolk S. Ry. Co., 271 S.W.3d 76, 86 n.3 (Tenn. 2008) and, in the absence of proof, we

decline to accept as a fact that all buildings have steps going in and out of them.

Regardless, we decline to adopt a rule that would require courts to count stairs and

make findings regarding whether the stairs were on the exterior or interior of the building

in order to determine whether injuries resulting from a fall arise out of the employment.

Such a rule would yield arbitrary results. For instance, an employee falling from the

bottom step of a multi-step staircase would be entitled to receive benefits simply because

the staircase had more than one step. An employee suffering the same fall with the same

results from a single step entranceway or exist, under Employer’s theory, would not have

a compensable claim. There is no indication the General Assembly intended such

disparate results based solely on the construction of the building in which the injury

occurs. 6

In sum, Employee entered a building, cleaned the building and, on exiting that

building to go to the next building during her shift, fell off a step and suffered injuries.

6

Both in the trial court and during oral argument, Employer acknowledged that Employee’s claim would

be compensable if there had been two steps rather than one. In our view, the number of steps has no

bearing on whether an injury arises out of the employment. Either the step or steps, regardless of number,

are a hazard of the employment or they are not. We agree with the trial court that they are.

6

The parties agree she was within the course and scope of her employment. We agree

with the trial court that her fall arose out of conditions presented by her employment and,

thus, she is entitled to workers’ compensation benefits.

Conclusion

For the foregoing reasons, we hold that the evidence does not preponderate against

the trial court’s decision. Accordingly, the trial court is affirmed and the case is

remanded.

7

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Kimberly Bullard ) Docket No. 2017-08-1053

)

v. ) State File No. 71623-2017

)

Facilities Performance Group, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Amber E. Luttrell, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the

referenced case was sent to the following recipients by the following methods of service

on this the 7th day of August, 2018.

Name Certified First Class Via Fax Via Sent to:

Mail Mail Fax Number Email

John E. Dunlap X jdunlap00@gmail.com

Paul T. Nicks X pnicks@travelers.com

Amber E. Luttrell, Judge X Via Electronic Mail

Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk, Court of X Penny.Patterson-Shrum@tn.gov

Workers’ Compensation Claims

Matthew Salyer

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-1606

Electronic Mail: WCAppeals.Clerk@tn.gov