# Stewart, Michael v. Don Kennedy Roofing > Tennessee Court of Workers' Compensation Claims · December 6, 2019 · 2019 TN WC 174 URL: https://www.frixlaw.com/law-library/cases/4560499 ## Case - **Court:** Tennessee Court of Workers' Compensation Claims - **Decided:** December 6, 2019 - **Citations:** 2019 TN WC 174 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Kenneth M. Switzer - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4560499 ## Opinion text FILED Sree Dec 06, 2019 10:03 PM(CT) TENNESSEE COURT OF BEEBE S WORKERS' COMPENSATION WOE AEE STS. a CLAIMS Pixs a H < AGRICU! RE heli : 3 ‘ (ofs 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4560499. Public record. Not legal advice.