Opinion

Watts, Billy Keith v. Graphic Packaging, Intl.

  • 2019 TN WC 177
Court
Tennessee Court of Workers' Compensation Claims
Filed
Dec 10, 2019
Status
Published
On the bench
Robert Durham
Cited by
0 cases

The opinion

FILED

Dec 11, 2019

09:10 AM(CT)

ett TENNESSEE COURT OF

me WORKERS' COMPENSATION

CLAIMS

ane

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT COOKEVILLE

BILLY KEITH WATTS ) Docket No.: 2019-04-0113

Employee, )

V. )

)

GRAPHIC PACKAGING, INTL. ) State File No.: 13303-2019

Employer, )

And )

)

ARCH INS. CO., ) Judge Robert Durham

Insurer. )

EXPEDITED HEARING ORDER DENYING BENEFITS

The Court conducted an expedited hearing on December 3, 2019 to determine

whether Mr. Watts is likely to prove his injury is compensable given GPI’s asserted

defense of willful misconduct. The Court holds he is not likely to do so.

History of Claim

Mr. Watts worked as a press operator for GPI on February 20, 2019 when he tried

to pull out excess paper from an active press with his right hand. At the hearing, Mr.

Watts testified that the paper was sticking out a bit when he grabbed it. In his deposition,

which was made an exhibit, he explicitly stated he reached into the press to pull out the

paper. None of the pleadings or discovery corroborated his hearing testimony.

In any event, the belts on the press pulled his hand in, causing extensive damage.’

Mr. Watts went to the emergency room and later underwent a drug test, which returned

positive for marijuana.”

'Mr. Watts underwent five surgeries on his hand, but still lost his ring and little finger and the tip of his

middle finger. He is scheduled to undergo another surgery to release scar tissue.

* GPI did not pursue intoxication as an affirmative defense, but raised it only as grounds for Mr. Watts’

termination.

Mr. Watts became an employee of GPI in June 2018 when it bought PFP, LLC,

the company where Mr. Watts had worked for five years. As with most employees, his

essential job duties did not change upon GPI’s purchase. Mr. Watts worked second shift

and Steve Chappell, who also trained him on press operation, was his only supervisor

throughout his employment with PFP and GPI.

PFP did not have any written safety or disciplinary policies. Although there were

rules of procedure that employees were expected to follow, Mr. Watts described the

atmosphere as “laid back.” Nevertheless, in May 2017, he received a written warning

from Tom White, PFP’s plant manager, after the day-shift supervisor observed him

wiping down a press plate while the machine was running” In the warning, Mr. White

described the action as “unacceptable.” This is the only documented disciplinary action

taken against Mr. Watts before his accident.

After taking over, GPI began implementing its policies, including those on safety.

Management met with its new employees and educated them on new safety procedures,

which included the “Seven Safety Absolutes.” One of the “Absolutes” was a prohibition

against “reaching into moving equipment in violation of established safe operating

procedures.” In September 2018, Mr. Watts signed a document acknowledging his

receipt and understanding of the “Safety Absolutes” and that he could be terminated for

violating one of them. GPI displayed posters of these principles around the facility.

GPI also provided Mr. Watts with a written policy emphasizing safety and the

responsibility of all employees to maintain a safe working environment. It stated that it

was the employee’s duty to report any unsafe work practices and, if a supervisor were

involved, the report should be made to Human Resources. Mr. Watts signed an

acknowledgement agreeing to abide by these provisions. In addition, Mr. Watts signed a

“Commitment to Safety Form” that reiterated GPI’s emphasis on safety, and in which he

agreed to “abide by the rules and regulations of the company at all times.”

Mr. Watts testified that he knew and understood his responsibilities as outlined in

these documents at the time he signed them. He confirmed that he was aware of the

dangers of reaching into moving equipment, and that doing so violated GPI’s “Safety

Absolutes.” Mr. Watts further conceded that he witnessed several verbal reprimands by

management after GPI took over and knew of at least one written warning issued after a

co-worker cut himself.

However, Mr. Watts stated that after GPI’s training, Mr. Chappell told him and

other operators to use their own discretion about abiding by GPI’s safety policies, but if

they decided not to, they “better not get caught.” Further, he saw several operators,

including Mr. Chappell himself, reach into the presses to remove paper. Following Mr.

*Mr. White remains the plant manager at GPI.

Watts’ written warning in 2017, Mr. Chappell even asked him to stand in front of a

camera so Mr. Chappell could wipe down a press plate on a running machine without

being seen.’ Mr. Watts admitted that he never informed Mr. White or anyone in Human

Resources about these violations.

In addition to Mr. Watts, Mr. White also provided testimony. He stated that safety

was one of GPI’s highest priorities. He believed no employee should undertake a task if it

could not be done safely, and he communicated this to Mr. Watts in the 2017 warning.

He stated it was the primary responsibility of the shift supervisor to report safety

violations from the floor. Verbal warnings were part of GPI’s progressive disciplinary

system and shift supervisors were authorized to issue those; however, any further

disciplinary action had to be taken by himself and Human Resources. He remembered at

least six written warnings for safety violations that he issued as GPI’s plant manager,

although none for reaching into a moving machine before Mr. Watts’ accident.

As to Mr. Chappell’s alleged statements and safety violations, Mr. White testified

that once he learned of Mr. Watts’ allegations following his deposition and he

investigated them thoroughly, he demoted Mr. Chappell from shift supervisor. He further

stated that if he had known of these alleged incidents earlier, he would have certainly

investigated, and if true, would have taken disciplinary action then. However, no one

came to him or other managers asserting Mr. Chappell’s alleged safety violations or

failure to discipline safety infractions before Mr. Watts’ accident. He concluded by

stating that GPI fired Mr. Watts on March 6, 2019 for violating company policy, but it

would have otherwise accommodated his limitations.

Findings of Fact and Conclusions of Law

Mr. Watts must present sufficient evidence establishing that he is likely to prove at

trial that he is entitled to workers’ compensation benefits. See Tenn. Code Ann. § 50-6-

239(d)(1)(2019). GPI may present evidence of an affirmative defense, such as willful

misconduct, to illustrate a decreased likelihood that Mr. Watts would prevail at trial, but

the ultimate burden of proof at this expedited hearing remains with Mr. Watts. See

Burnett v. Builders Transp., 2018 TN Wrk. Comp. App. Bd. LEXIS 5 at *8, 9 (Feb. 8,

2018).

Here, the parties stipulated that Mr. Watts sustained an injury that arose primarily

out of and in the course and scope of his employment. However, GPI contended that its

willful misconduct defense under Tennessee Code Annotated section 50-6-110(a)(1)

makes it unlikely that Mr. Watts will succeed at trial.

The Appeals Board has set out several elements that an employer must prove to

“Neither party called Mr. Chappell as a witness.

show willful misconduct. First, there must be a violation of an actual safety rule. See

Neal v. Connect Express, LLC 2017 TN Wrk. Comp. App. Bd. LEXIS 9 at *10 (Jan. 30,

2017). A prohibition against placing one’s hand into moving machinery is one of GPI’s

“Seven Safety Absolutes” that GPI communicated to its employees through several

methods.

As to a violation of this rule, Mr. Watts admitted in his deposition that he reached

into the press to remove scrap paper. Several of the written discovery requests were

prefaced on the assumption that he reached into the machine, and his responses did

nothing to correct that assumption. No evidence suggested that he ever told anyone that

he did not actually reach into the machine. Nevertheless, at the hearing, Mr. Watts

testified that the scrap paper actually protruded slightly from the machine, and this is

what he grabbed rather than placing his hand into the press. The Court does not find Mr.

Watts’ testimony credible on this point. Thus, the Court finds that Mr. Watts is unlikely

to rebut the first element of willful misconduct at trial.

The Court now turns to the remaining elements of willful misconduct: (1) The

employee’s actual, as opposed to constructive, notice of the rule; (2) The employee’s

understanding of the danger involved in violating the rule; (3) The employer’s bona fide

enforcement of the rule; and (4) The employee’s lack of a valid reason for violating the

rule. Roper v. Allegis Group, 2017 TN Wrk. Comp. App. Bd. LEXIS 9, at *10 (Feb. 10,

2017.)

The first two elements are essentially undisputed. Mr. Watts testified that he was

aware of the policy against reaching into a moving machine. He signed several

documents attesting to his awareness and understanding of GPI’s safety policies and his

willingness to abide by them. He also testified that he knew the dangers of placing his

hand in the machine and admitted to such in his discovery responses.

The third element, bona fide enforcement, is the crux of the dispute between the

parties. Mr. White, GPI’s plant manager, testified that when GPI took over, safety

became a top priority and this shift was communicated to the employees. Mr. Watts

admitted that GPI was much stricter than the “laid-back” approach used by its

predecessor. He knew that, should Mr. White or someone from Human Resources catch

him violating one of the “Safety Absolutes” he would likely be disciplined, perhaps

terminated.

Mr. White testified that if he became aware of a violation, he would investigate

and ensure appropriate measures were taken. As evidence of enforcement, he cited

several instances where he gave written warnings for various safety violations in the

months following GPI’s take-over. Mr. Watts admitted he knew of a warning being

issued to a co-worker who had cut himself.

Although GPI offered no proof of disciplinary action stronger than a written

warning, it must be recalled that it had only been in charge for approximately eight

months at the time of Mr. Watts’ injury. In addition, both parties testified as to verbal

warnings issued by management. Further, even while employed with PFP, Mr. White

displayed a commitment to enforcing the specific rule against reaching into active

equipment. When the first-shift supervisor advised him that he saw Mr. Watts wipe

down a plate on a moving press, he issued a written warning. Thus, the Court finds that

the evidence is likely to support GPI’s contention that, with the exception of Mr.

Chappell, management was committed to enforcing its safety policies.

However, Mr. Watts argued that Mr. Chappell’s failure to enforce the rules

negated any commitment or action as to other GPI management. He contended that since

his immediate supervisor regularly allowed such violations, and in fact committed these

violations himself, GPI will be unable to prove bona fide enforcement at trial. Given the

facts of this case, the Court finds his argument unpersuasive.

Although the unrebutted evidence established that Mr. Chappell routinely ignored

violations of GPI’s safety policy, he also made it clear to the second-shift employees that

if they were caught by other managers committing unsafe acts, they would likely be fired.

He took steps to hide one violation from Mr. White by asking Mr. Watts to step in front

of the camera while he wiped of a plate. Mr. Chappell was the only one with any

supervisory authority on second shift, but his authority as to discipline was limited to

only giving verbal warnings and reporting violations to Mr. White, who would then

determine the level of discipline necessary.

In addition, Mr. Watts admitted that he did not report any second shift safety

violations or Mr. Chappell’s failure to properly supervise the operators, even though he

knew it was his obligation to do so. If he had reported him, GPI could have taken

corrective action much sooner. Finally, once Mr. White became aware of Mr. Chappell’s

behavior, GPI disciplined him by demoting him from supervisor. Given these facts, the

Court cannot find that Mr. Chappell’s actions or inactions established that GPI is unlikely

to show bona fide enforcement of the safety rule at trial.

As to the last element regarding a valid excuse, Mr. Watts maintained that to shut

down the press to remove a paper jam could potentially stop the process for several

minutes and result in more waste paper, thus reducing productivity. However, he

provided no evidence that GPI encouraged or condoned safety violations to maintain

productivity. Thus, the Court finds that Mr. Watts’ excuse is likely insufficient to prevail

against a defense of willful misconduct. See Gonzales v. ABC Prof’! Tree Services, 2014

TN Wrk. Comp. App. Bd. LEXIS 2, *27 (Nov. 10, 2014).

1,

IT IS, THEREFORE, ORDERED that:

Mr. Watts’ request for workers’ compensation benefits is denied at this time.

2. This case is set for a Scheduling Hearing on January 23, 2020, at 10:30 a.m.

Central Time. The parties must call 615-253-0010 or toll-free at 855-689-9049 to

participate. Failure to call might result in a determination of the issues without your

participation.

ENTERED December //, 2019.

ed, / \Z

Robert V. Durham, Judge

Court of Workers’ Compensation Claims

APPENDIX

Exhibits:

L. Responses to Interrogatories

2. Responses to Requests for Admission

5. Separation Notice

4, Safety Absolutes

5. Poster of Safety Absolutes

6. Safety Policy

7. Written Warning

8. Commitment to Safety Statement

9. Wage Statement

10. First Report of Injury

11. Drug Test Results

12. Notice of Denial

13. Transcript of Mr. Watts’ Deposition

14. Employee Performance Review

Technical Record:

RYN >

Petition for Benefit Determination

Dispute Certification Notice

Request for Expedited Hearing

Notice of Expedited Hearing

5. GPI’s Pre-Hearing Statement

6. Mr. Watts Pre-Hearing Statement

CERTIFICATE OF SERVICE

A copy of the Expedited Hearing Order Denying Benefits was sent as indicated on

December 11, 2019.

Name Certified | Email | Service sent to:

Mail

David Goodman Xx dgoodman@forthepeople.com

Benjamin Reese Xx btr@smrw.com

fines AY MU (a

Penny Shruny, (Clerk of Court

Court of Wo ers’ 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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