Opinion

Garrett, Jody v. Precision Piping and Plumbing

  • 2019 TN WC 92
Court
Tennessee Court of Workers' Compensation Claims
Filed
Jun 4, 2019
Status
Published
On the bench
Brian K. Addington
Cited by
0 cases

The opinion

FILED

Jun 04, 2019

08:27 AM(CT)

TENNESSEE COURT OF

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT GRAY

JODY GARRETT, ) Docket Number: 2018-02-0076

Employee, )

Vv. )

PRECISION PIPING AND ) State File Number: 9524-2018

PLUMBING, )

Employer, )

And )

ACCIDENT FUND INSURANCE OF ) Judge Brian K. Addington

AMERICA, )

Carrier. )

EXPEDITED HEARING ORDER

Jody Garrett requested that Precision Plumbing pay for medical and temporary

disability benefits for a thumb injury that he claimed arose primarily out of and in the

course and scope of his employment. Precision Plumbing denied the accident occurred

while Mr. Garrett was at work. The Court held an Expedited Hearing on May 31, 2019,

and concludes Mr. Garrett failed to establish he would likely prevail at a hearing on the

merits regarding his request for medical and temporary disability benefits.

Claim History

Mr. Garrett worked for Precision as a plumber and received a salary as opposed to

hourly pay. He primarily worked under Jeff Underwood, supervisor of Precision’s

remodeling and service division. Mr. Underwood had no ownership interest in Precision.

As head of the remodeling and service division, Mr. Underwood kept Precision’s

supplies at his residence. On occasion, Mr. Garrett worked at Mr. Underwood’s

residence cleaning the work van and sorting supplies. In addition to the work for

Precision, he also performed occasional odd jobs at Mr. Underwood’s home, including

helping to install siding. It was this type of odd job that led to Mr. Garrett’s injury.

WORKERS' COMPENSATION

On October 10, 2017, Mr. Garrett finished his plumbing jobs early. He rode back

to Mr. Underwood’s house.’ Mr. Underwood was splitting firewood for a church

festival, and he gave Mr. Garrett the option to either get a ride home or stay and help split

wood. Mr. Garrett chose to stay and help. He partially amputated his thumb while

splitting the wood. Mr. Garrett received emergency treatment at two hospitals and was

released later that night. The following day, and for a short time afterward, he continued

working for Precision.

In November, Precision terminated Mr. Garrett after determining he used the

company’s debit card without permission and incurred excessive absences. It also

received customer complaints concerning alcohol on his breath. Although Mr. Garrett

admitted using the debit card without permission, he testified he repaid the money the

next day. He denied the other allegations and argued that Precision terminated him

because he asked Precision to pay his medical bills and provide temporary disability

benefits.

Precision denied compensability of his injury. It argued that Mr. Garrett’s injury

did not arise primarily out of or in the course and scope of his employment because he

was not at work at the time of the accident and the log-splitting did not benefit Precision.

Therefore, he is not entitled to workers’ compensation benefits. Additionally, even if the

injury were work-related, Mr. Garrett’s termination for cause prohibited recovery of

temporary disability benefits.

Mr. Garrett countered that the injury arose out of his work for Precision. He

asserted that because he completed his plumbing jobs early, he was required to help Mr.

Underwood, his supervisor, cut and split firewood as part of his job duties.

Finding of Facts

Precision denied that Mr. Garrett’s injury arose primarily out of and in the course

and scope of his employment. Thus, it argued the claim is not compensable. To recover

benefits at this expedited hearing, Mr. Garrett must show a likelihood of proving

compensability of his claim at a hearing on the merits. Tenn. Code Ann. § 50-6-

239(d)(1) (2018).

To be compensable under the workers’ compensation statutes, an injury must arise

primarily out of and in the course and scope of the employment. Tenn. Code Ann. § 50-

6-102(14). An injury occurs in the course and scope of employment if it takes place

while an employee is performing a duty he was hired to perform and focuses on the time,

place, and circumstances of the injury. Jacobs v. Bridgestone Americas Tire, 2018 TN

Wrk. Comp. App. Bd. LEXIS 4, at *9-10 (Feb. 7, 2018).

' Mr. Garrett had no driver’s license, so Precision hired a driver to take him to and from job sites.

2

Precision hired Mr. Garrett as a plumber. Therefore, any activity not directly or

indirectly related to plumbing, including splitting logs for his supervisor, fell outside the

scope of his work. Also, his injury occurred after the work day, when Mr. Garrett could

have gone home but volunteered to help Mr. Underwood prepare for a church event.

The Court finds no casual connection between Mr. Garrett’s job as a plumber and

the work he performed chopping wood as an act of kindness for Mr. Underwood. The

work did not benefit Precision. Therefore, the Court holds he is not likely to prevail at a

hearing on the merits in proving compensability of his injury.

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Garrett’s requested relief is denied at this time.

2. This case is set for a Status Hearing on September 27, 2019 at 10:00 a.m. Eastern

Time. The parties must call 855-543-5044 toll-free to participate in the hearing.

Failure to appear by telephone may result in a determination of the issues without

your further participation.

ENTERED JUNE 4, 2019.

/S/ Brian K. Addington

BRIAN K. ADDINGTON, JUDGE

Court of Workers’ Compensation Claims

APPENDIX

Exhibits:

1. Jody Garrett’s Affidavit

2. Pay Stubs from January to November 2017

3. Collective Exhibit Medical bills (for Identification Purposes)

4. Medical Records of Sycamore Shoals

5. Medical Records of Johnson City Medical Center

6. Jody Garrett’s Deposition

7. Photo

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

4. Agreed Order of Continuance

5. Employer’s Motion to Continue Expedited Hearing

6. Order Continuing Expedited Hearing and Setting Hearing

7. Employee’s Witness and Exhibit Lists

8. Employee’s Pre-Hearing Brief

9. Employer’s Witness List

CERTIFICATE OF SERVICE

I certify that a correct copy of this Order was sent to the recipients below as

indicated on June 4, 2019

Name Certified | First | Email Service Sent to:

Mail Class

Mail

Todd East, todd@toddeast.com

Employee’s Attorney X | jennifer@toddeast.com

Cole Stinson, cole.stinson@accidentfund.com

Employer’s Attorney X | christine.spear@accidentfund.com

Linney Ma as

PENNY SHUM, COURT CLERK

we.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.

LB-1099

EXPEDITED HEARING NOTICE OF APPEAL

Tennessee Division of Workers’ Compensation

www. tn.gov/labor-wid/weomp.shtml

wce.courtclerk@tn.gov

1-800-332-2667

Docket #:

State File #/YR:

Employee

Vv.

Employer

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

L] Medical benefits for current injury

LC Medical benefits under prior order issued by the Court

List of Parties

Appellant (Requesting Party): At Hearing: LJEmployer 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 *

rev. 10/18 Page 1 of 2 RDA 11082

Employee Name: SF#: DOI:

Appellee(s)

Appellee (Opposing Party): At Hearing: L]JEmployer LJEmployee

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,

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

, certify that | have forwarded a true and exact copy of this

[Signature of appellant or attorney for appellant]

LB-1099 rev. 10/18 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 Ail 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

ssl $ 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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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