Opinion

Stewart, Michael v. Don Kennedy Roofing

  • 2019 TN WC 174
Court
Tennessee Court of Workers' Compensation Claims
Filed
Dec 6, 2019
Status
Published
On the bench
Kenneth M. Switzer
Cited by
0 cases

The opinion

FILED

Sree

Dec 06, 2019

10:03 PM(CT)

TENNESSEE COURT OF

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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

Michael Stewart, ) Docket No. 2019-06-0815

Employee, )

Vv. )

Don Kennedy Roofing, ) State File No. 23463-2019

Employer, )

And )

American Cas. Co. of Reading, PA, ) Judge Kenneth M. Switzer

Carrier. )

EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF

Michael Stewart filed a Request for Expedited Hearing challenging the denial of

his workers’ compensation claim. The present focus of this case is whether Mr. Stewart

suffered an injury when he allegedly fell at work. After an expedited hearing on

December 3, 2019, the Court holds Mr. Stewart is unlikely to prevail at a hearing on the

merits and denies the requested relief.

History of Claim

Mr. Stewart testified that on March 26, 2019, he arrived at work at approximately

5:46 a.m., used an employee entrance to the left side of the main entrance near a gate, got

some coffee and then went to the restroom. He slipped on “something wet” on the

restroom floor, fell and hit his left shoulder. In response to the Court’s questioning, Mr.

Stewart clarified he went to the restroom on the side of the building near the employee

entrance he used.

According to Mr. Stewart, about eight or nine minutes later, he saw Tom Burns, a

superintendent, and told him about his fall. Mr. Burns responded that he was busy and

walked into his office. Mr. Stewart then saw Bill Childress, the safety director, and told

him about the fall, but Mr. Childress likewise said he was busy and would talk to him

later.

A few minutes later, per Mr. Stewart, Mr. Childress said he and Mr. Burns wanted

to meet with him. They went to a large conference room, where Mr. Childress and Mr.

Burns terminated Mr. Stewart.

Mr. Stewart testified that he sought emergency treatment on his own two days

later but introduced no records of that treatment.

Don Kennedy Roofing denied the claim, arguing Mr. Stewart did not fall in the

bathroom as described. It relied on the testimony of Mr. Childress and Mr. Burns.

Specifically, Mr. Childress denied having a conversation with Mr. Stewart before they

fired him and added that Mr. Stewart did not report a fall in the restroom during the

termination meeting. Mr. Burns’s testimony was equivocal. He testified on direct

examination that Mr. Stewart neither reported a fall in the bathroom before the

termination meeting nor did he mention it during the meeting. However, on cross-

examination, he said he did not remember speaking with Mr. Stewart about a fall in the

bathroom.

Much of the testimony revolved around videos from various vantage points inside

the building on the morning at issue. Mr. Stewart did not object to the admissibility of

the videos. Mr. Childress stated that Don Kennedy Roofing has forty-one or forty-two

surveillance cameras. Mr. Childress stated repeatedly that the video shows Mr. Stewart

using the main entrance, but it does not; it shows Mr. Stewart walking down the front

hallway. Mr. Stewart denied using the front entrance.

The footage, time-stamped 5:58:30 a.m., shows Mr. Stewart in the front hallway,

turning left, and walking down another hall. At 5:59:30, Mr. Stewart entered the work

kitchen. Once inside, he got a cup of coffee at approximately 6:00:40. The video then

shows Mr. Burns and Mr. Childress back in the hallway. They looked into a room, then

turned around and walked in the other direction until they entered the large conference

room at 6:02:45. Mr. Burns, Mr. Childress and Mr. Stewart talked for approximately two

minutes. The video then shows Mr. Childress escorting Mr. Stewart toward the main

entrance in the front hallway.

Mr. Childress testified that he and an IT staffer assembled the video from the

various cameras in the facility. He stated that he reviewed all the videotape, but no other

footage showed Mr. Stewart was at Don Kennedy Roofing until 5:58 that morning, and

therefore the other video was not “relevant.” Mr. Childress said the only conversation he

had with Mr. Stewart was in the large conference room when they fired him.

Mr. Stewart countered that employees generally do not use the front entrance

because it is locked at that time; Mr. Childress said that entrance automatically unlocks at

5:30 a.m. Mr. Stewart also questioned the reliability of the video generally, arguing that

Don Kennedy Roofing only provided footage favorable to its position.

2

Findings of Fact and Conclusions of Law

Mr. Stewart, as the employee, has the burden of proof on all essential elements of

his claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS

24, at *6 (Aug. 18, 2015). At an expedited hearing, he must show that he is likely to

prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2019);

McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at

*7-8, 9 (Mar. 27, 2015).

Mr. Stewart seeks medical benefits for an alleged injury to his shoulder. An

employer must provide, free of charge to the employee, medical treatment made

reasonably necessary by accident “as defined in this chapter.” Tenn. Code Ann. § 50-6-

204(a)(1)(A). Therefore, the Court looks to the statutory definition of “injury” to

determine whether Mr. Stewart’s shoulder injury falls within it. Tennessee Code

Annotated section 50-6-102(14) defines “injury” as an “injury by accident. . . arising

primarily out of and in the course and scope of employment, that causes .. . the need for

medical treatment.” Further, an injury is accidental only if “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[.]” Jd. at (14)(A).

Here, Mr. Stewart provided his account of the accident regarding how he fell in

the restroom and the events immediately preceding it. In contrast, Mr. Burns and Mr.

Childress denied Mr. Stewart ever told them he fell in the restroom. In addition, they

relied on videos to bolster their assertion that Mr. Stewart did not arrive at work that

morning until 5:58 a.m. and never entered the restroom for the brief time he was in the

building.

Considering the conflicting testimony, the Court finds it troubling that, by his own

admission, Mr. Childress and a coworker edited the video to include only portions that he

considered “relevant.” However, the Court may only take into account the evidence

before it. In that regard, the videos clearly show Mr. Stewart walking down the hallway

near the main entrance at 5:58 a.m. Importantly, while Mr. Stewart questioned

repeatedly why Don Kennedy Roofing did not present video from earlier that morning, he

made no effort to obtain it or introduce it into evidence. The Court also finds it

significant that Mr. Stewart did not testify as to why he was in the hallway near the main

entrance at that time.

In sum, the Court cannot find that Mr. Stewart presented sufficient evidence that

he is likely to prevail at a hearing on the merits.

IT IS ORDERED as follows:

l.

Di

The Court denies Mr. Stewart’s request for relief at this time.

This case is set for a scheduling hearing on February 3, 2020, at 10:45 a.m.

Central. 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.

ENTERED December 6, 2019.

GE KENNETH M. SWITZER

Court of Workers’ Compensation

APPENDIX

Exhibits:

1. Affidavit

2. Work restrictions-Identification only

3. Denial

4. Videotape

5. Text messages

6. Photo of main entrance to Don Kennedy Roofing

7. Floor plan of Don Kennedy Roofing

Technical record:

aS oe BS

Petition for Benefit Determination

Dispute Certification Notice

Show Cause Order

Order on Show Cause Hearing

Request for Expedited Hearing

Employer and Carrier’s Witness and Exhibit List

Expedited Hearing Statement of Employer and Carrier

CERTIFICATE OF SERVICE

I certify that a copy of the Expedited Hearing Order was sent as indicated on

December 6, 2019.

Name Certified | Regular | Email | Sent to:

Mail Mail

Michael Stewart, Self- x x 9953mike@gmail.com

Represented Employee 111 Hoffman PI.

Madison TN 37115

David Deming, x | ddeming@manierherod.com

Employer’s Attorney

Lenag Mion

Peniy Shr

fn, Clerk of Court

ved

Court of Werkers’ 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.

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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