The opinion
FILED
Oct 02, 2019
02:19 PM(CT)
TENNESSEE COURT OF
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Leonardo Calderon-Fuentes, ) Docket No. 2018-06-1735
Employee, )
V. )
CEVA Logistics U.S. Holdings, ) State File No. 58665-2018
Employer, )
And )
New Hampshire Ins. Co., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF
This case requires the Court to determine whether Leonardo Calderon-Fuentes,
while driving a forklift, collided with another moving forklift and suffered injuries. At a
September 26 hearing, CEVA Logistics U.S. Holdings offered evidence from four of its
employees disputing Mr. Calderon-Fuentes’s account of the events. Based on the
evidence, the Court finds Mr. Calderon-Fuentes did not demonstrate that he would likely
prevail at a hearing on the merits. His requested relief is denied at this time.
Claim History
According to Mr. Calderon-Fuentes, on July 25, 2018, while driving his forklift,
he collided with another forklift driven by Anthony Banks.’ He felt immediate pain, but
he thought it would subside with time. Mr. Calderon-Fuentes observed no damage to the
forklifts and stated that CEVA has cameras at work that would have recorded the
accident.
Mr. Calderon-Fuentes testified that he and Mr. Banks summoned their supervisor,
Carie Williams, to report the accident. He told Ms. Williams he “had pain but I didn’t
think it was going to get worse.” He did not ask to go to a doctor at that time. Ms.
Williams told him to keep working, which he did, finishing his shift. He moved the
"Mr. Calderon-Fuentes’s first language is Spanish. Steven Robinson interpreted at the hearing.
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WORKERS' COMPENSATION
forklift because it was “on the line,” but he did not drive anymore that day. Mr.
Calderon-Fuentes worked for eight more days after the incident, until August 2, when he
asked to leave because he was not feeling well.
Mr. Calderon-Fuentes said he never received a panel of physicians. Tomie Hill,
CEVA’s training and safety manager, confirmed this in his direct testimony, stating, “We
have a panel of doctors that we choose. Uh, Concentra was chosen . . . for his care.”
CEVA did not introduce into evidence a signed panel form. Ultimately, Mr. Calderon-
Fuentes treated on his own, but he introduced no records of the treatment other than work
excuses.
Mr. Hill further testified regarding Mr. Calderon-Fuentes’s assertion that video
footage exists of the accident. Mr. Hill stated he reviewed the available footage but no
cameras are in the area where the incident occurred. When asked why, he said he did not
place the cameras; rather, security did.
Ms. Williams testified live and in a declaration that she investigated the incident
on July 25. Another worker who speaks Spanish interpreted Mr. Calderon-Fuentes’s
account of the accident, which she documented in an incident report. Near the top of the
document, a box is checked that characterized the incident as a “near miss.” However,
the interpreter wrote that “other driver appear [sic] from receiving stagin[g] area when he
hit me[.]” The report states “no injuries.” Ms. Williams testified that following the
incident, she asked whether Mr. Calderon-Fuentes had any injuries or needed to see a
doctor, and he said no. He signed the report, which is in English. Mr. Calderon-Fuentes
testified that he does not read English.
Ms. Williams further testified that she took statements from eye witnesses, Marise
Edouard and Anthony Banks. Ms. Edouard told her the drivers stopped before impact.
Mr. Banks, the other driver, likewise told her no impact occurred. Ms. Edouard and Mr.
Banks signed sworn declarations stating the same but did not testify at the hearing.”
Much of the testimony revolved around sensors placed on the forklifts. Ms.
Williams explained that when a forklift hits an object, an “impact alert” sends an email to
Mr. Hill, and the forklift becomes inoperable until it is reset. In this instance, however,
she said both Mr. Banks and Mr. Calderon-Fuentes were able to operate their forklifts
afterward. Mr. Hill stated that he did not receive an impact email from the sensors on the
forklifts, which he described as “sensitive.” On cross-examination, Mr. Hill said, “It’s
rare that a lift doesn’t lock-out when there’s an impact.” He explained that a sensor
might not send an alert if a forklift hit a support beam, but “a hard impact forklift
collision” would set it off, and he hasn’t “had a forklift collision that hasn’t shut down on
* CEVA subpoenaed them, but for unknown reasons they did not appear. Mr. Calderon-Fuentes did not
subpoena them to appear.
[him].” For his part, Mr. Calderon-Fuentes testified, “I’ve been working there for six
years, and a forklift will never lock up, even if it’s hard-crashed.”
As for authorized treatment, Mr. Calderon-Fuentes saw a physician assistant at
Concentra on August 3, who noted he “was on forklift was hit by another forklift pain in
back DOI 07/25/2018.” The physician assistant placed him on restrictions. Mr. Hill
testified that CEVA offered to accommodate Mr. Calderon-Fuentes’s work restrictions.
CEVA introduced a Bona Fide Offer of Employment in support of this contention.
CEVA denied the claim on August 13, citing “no accident arising out of the course
and scope of his employmen[t].” Mr. Calderon-Fuentes took leave under the Family and
Medical Leave Act. He returned to work without restrictions in December 2018 and
continues working at CEVA.
Findings of Fact and Conclusions of Law
An injured worker retains the burden of proof at all stages of a workers’
compensation claim. Buchanan v. Carlex Glass Co., 2015 TN Wrk. Comp. App. Bd.
LEXIS 39, at *6 (Sept. 29, 2015). At an expedited hearing, a trial court may grant relief
if the court is satisfied that an employee has met the burden of showing that he or she is
likely to prevail at a hearing on the merits. Jd. Here, Mr. Calderon-Fuentes must show
he suffered an accidental injury “caused by a specific incident, or set of incidents, arising
primarily out of and in the course and scope of employment, and is identifiable by time
and place of occurrence.” Tenn. Code Ann. § 50-6-102(14)(A) (2018).
The proof about the events leading to this claim of injury varies significantly. On
one hand, Mr. Calderon-Fuentes credibly testified about the events before and after the
alleged forklift collision on July 25. He stated that his forklift made actual contact with
Mr. Banks’s, resulting in pain and injury. Although Ms. Williams’s accident report
characterizes the incident as a “near miss,” it also states, “other driver appear [sic] from
receiving stagin[g] area when he hit me[.]” Further, Mr. Calderon-Fuentes gave a similar
history of injury to providers at Concentra. The Court finds it plausible that the forklifts
could collide without damaging either one.
On the other hand, the Court must weigh the testimony of supervisors who did not
witness the accident but rather conducted investigations afterward. Ms. Williams spoke
to, and CEVA obtained declarations from, two eye witnesses who said the forklifts did
not collide. Although they were not present at the hearing for Mr. Calderon-Fuentes to
cross-examine, their statements are sworn, and the Court must assign some weight to
them.
But perhaps most compelling is the testimony regarding the sensors, which is
circumstantial evidence. The Appeals Board cited longstanding law that “[a]ny fact may
3
be proved by direct evidence, circumstantial evidence, or a combination of the two” and
that “[t]he law does not distinguish between the probative value of direct evidence and
the probative value of circumstantial evidence.” LaGuardia v. Total Holdings USA, Inc.,
d/b/a Hutchinson Sealing Sys., 2017 TN Wrk. Comp. App. Bd. LEXIS 73, at *8-9 (Nov.
29, 2017).
Mr. Hill credibly testified that he did not receive an email alerting him of a forklift
collision on the date of the incident and that the sensors are “sensitive.” He said that it is
“rare” for a sensor not to send an alert on impact. He acknowledged that it might not
happen when striking a support beam but maintained that a “hard impact” collision would
have sent an alert. Likewise, Ms. Williams credibly explained the forklifts would have
been inoperable after an impact until they are reset. However, Mr. Calderon-Fuentes
admitted he was able to move his forklift after the incident, albeit merely to move it off
the line.
Mr. Calderon-Fuentes insisted that he never saw a forklift stop working after a
hard impact over the course of his six years at CEVA. The Court finds no explanation for
the discrepancies in their testimony. Regardless, weighing Mr. Calderon-Fuentes’s
testimony on this point against that of Mr. Hill and Ms. Williams, the Court credits their
contention that the sensors on their forklifts would have alerted Mr. Hill and that the
forklifts would have been inoperable had a collision occurred.
Therefore, on this record, Mr. Calderon-Fuentes did not satisfy his burden to show
likelihood of a “specific incident, or set of incidents, arising primarily out of and in the
course and scope of employment,” as the statute requires. The Court is unable to grant
the requested medical or temporary disability benefits at this time.
Having ruled, the Court must also comment on CEVA’s handling of Mr.
Calderon-Fuentes’s assertion of an injury. Mr. Calderon-Fuentes testified that he never
received a panel of physicians. Mr. Hill confirmed, “We have a panel of doctors that we
choose. Uh, Concentra was chosen . . . for his care.” CEVA did not introduce a panel
into evidence.
When an injured worker expresses a need for medical care, “[t]he employer shall
designate a group of three (3) or more independent reputable physicians . . . from which
the injured employee shall select one (1) to be the treating physician.” Tenn. Code Ann.
§ 50-6-204(a)(3)(A)(i). The Court finds CEVA did not comply with this provision when
it directed Mr. Calderon-Fuentes to Concentra. This case is referred to the Compliance
Program for consideration of a penalty. See Tenn. Code Ann. § 50-6-118(a)(12) (The
Bureau may collect penalties for an employer’s failure to timely provide a panel of
physicians).
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. Mr. Calderon-Fuentes’s requested relief is denied at this time.
2. This case is set for a Scheduling Hearing on December 2, 2019, at 9:00 a.m.
Central Time. You must call 615-532-9552 or toll-free at 866-943-0025 to
participate. Failure to call might result in a determination of the issues without
your participation.
3. This case is referred to the Compliance Program for consideration of the
imposition of a penalty for CEVA’s failure to offer a panel of physicians.
ENTERED October 2, 2019.
JUDGE KENNETH M. SWITZE
Court of Workers’ Compensation-Claims
Exhibits
Denial
Senay ahh =
Technical Record
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APPENDIX
Composite medical records
Declaration of Tomie Hill/attached proof of wages
Declaration of Carie Williams and attachments
Declaration of Marise Edouard
Declaration of Anthony Banks
Bona Fide Offer of Employment
Petition for Benefit Determination
Dispute Certification Notice
Show-Cause Order
Request for Expedited Hearing
Order on Show-Cause Hearing
Employer’s Position Statement
Affidavit of Leonardo Calderon-Fuentes
First Report of Injury
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on October 2, 2019.
Name Certified | Regular | Email | Sent to
Mail mail
Leonardo Calderon- X 320 Welch Rd., Apt. G3
Fuentes, Self- Nashville TN 37211
represented
Employee
Tyler Smith, XxX tsmith@lewisthomason.com
Employer’s attorney rcorrigan@lewisthomason.com
Compliance X WCCompliance.Program@tn.gov
Program
/)
_ Sieny dd Mn
Peiiny Shr
WC.Court
6
(r)
Clerk@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