Smith, Shirley v. Walbridge Construction

FILED

Mar 08, 2024

02:09 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MEMPHIS

SHIRLEY SMITH, ) Docket No. 2023-08-0115

Employee, )

v. )

WALBRIDGE CONSTRUCTION, )

Employer, )

And )

FARMINGTON CASUALTY CO., ) State File No. 860087-2023

Carrier, )

And )

TROY HALEY, as ADMINISTRATOR of )

the BUREAU OF WORKERS’ )

COMPENSATION, SUBSEQUENT INJURY ) Judge Shaterra R. Marion

& VOCATIONAL RECOVERY FUND. )

EXPEDITED HEARING ORDER DENYING BENEFITS

At a March 1, 2024, Expedited Hearing, Ms. Smith requested benefits for her

alleged work-related injuries. Walbridge denied that Ms. Smith suffered an injury primarily

arising out of and in the course and scope of her employment. The Court holds Ms. Smith

is not likely to show that her injury primarily arose out of and within the course and scope

of her employment and denies benefits at this time.

History of Claim

Ms. Smith testified that on September 12, 2022, she slipped and fell while removing

a crosstie from an excavation hole by herself. 1 She testified she injured her neck, back and

entire upper body.

1

Walbridge objected to Peter Smith testifying since Ms. Smith’s discovery responses did not list him as a

person with knowledge. The Court took the objection under advisement. The objection is overruled since

Ms. Smith did list him in the prehearing witness list.

1

According to Ms. Smith, her direct supervisor, Joshua Hovatter, witnessed the

incident. Mr. Hovatter, who no longer works for Walbridge, testified that he did not witness

Ms. Smith fall or suffer any injury. He also said she did not report an injury to him.

Several other Walbridge employees testified: General Foreman Mark Laub, Safety

Supervisor Justin Keister, and Senior Superintendent Randy Auer.

Mr. Keister and Mr. Laub stated that they did not witness Ms. Smith suffer any

injury, and she did not report any injury to them. They also testified that they rotated around

the jobsite and observed Ms. Smith’s area multiple times a day.

Walbridge requires employees to sign or initial a form in the morning, afternoon,

and at the end of their shift, noting any injuries or near misses. During the hearing, Ms.

Smith was presented the September 12 form showing no accidents, no near misses, her

written name, and initials. Ms. Smith confirmed it was her name and initials, although she

would not confirm that she signed the form that day.

Mr. Keister also explained that Walbridge keeps an incident log that would show

any reported injuries for a particular month. The log showed zero incidents for September

2022. Further, Mr. Keister said that Walbridge has an incentive program that gives

employees $50 gift cards for reporting an injury.

The parties disagreed on Ms. Smith’s job responsibilities. Walbridge’s employees

testified that her duties did not include clearing crossties out of an excavation hole. They

also said the red stripe on her helmet signaled that she was not supposed to be in or around

the excavation holes. Mr. Hovatter testified that the crossties weighed over 50 pounds and

they had machinery to move anything that heavy. Ms. Smith countered that her

responsibilities did include clearing out excavation holes, and Mr. Hovatter specifically

instructed her to remove the crosstie.

The parties agreed that the day after the alleged accident, Walbridge terminated Ms.

Smith along with several other employees. Walbridge asserted the termination was due to

a reduction in work. Ms. Smith returned to the worksite within days to work for another

contractor. When Ms. Smith returned to the worksite, she did not report an injury but

continued to work flagging trucks and picking up trash and debris.

Randy Auer stated that Walbridge’s first notice of an alleged injury was on March

16, 2023, when Ms. Smith sent him an email.

Motion to Reconsider

Before the hearing, the Court heard Ms. Smith’s motion to reconsider a February 28

order granting Walbridge’s motion to strike part of Ms. Smith’s exhibit list.

2

The Court entered the February 28 order because it had previously ordered sanctions

that prohibited entry of the proposed exhibits due to Ms. Smith’s failure to comply with

discovery deadlines and a Court order. Also, Ms. Smith failed to supplement her hearing

request with the additional documents or file the records with the clerk within the

timeframe set out by Court rules.

Ms. Smith requested that the Court enter records from Seaton Family Practice and

a December 2023 MRI report. The records were excluded because they were not signed

by a doctor and constituted inadmissible hearsay. As for the MRI report, it was not listed

on the exhibit list and was excluded as part of the sanctions order.

Therefore, the motion to reconsider is denied, and the records are excluded.

Findings of Fact and Conclusions of Law

Ms. Smith must show she is likely to prevail at trial in establishing that her injuries

arose primarily out of and in the course and scope of her employment. Tenn. Code Ann. §

50-6-102(12); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.

LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

Ms. Smith must first show that her injury arose primarily out of and in the course

and scope of employment. To do so, she must prove a work-related incident or set of

incidents to her neck, back, and upper body identifiable by time and place of occurrence.

Tenn. Code Ann. § 50-6-102(12)(A). She has not done so.

Ms. Smith’s claim that her injury occurred at work and that she reported the injury

to Walbridge is not sufficient to trigger benefits. The Appeals Board explained that “mere

notice of an alleged workplace accident, in and of itself, does not trigger an employer’s

duty to provide medical benefits in every case, without regard to the particular

circumstances presented.” McCord, at *14.

In review of the “particular circumstances presented,” the Court does not find Ms.

Smith’s testimony consistent with the evidence. The form from the date of injury and the

incident log show no incidents reported, despite Walbridge’s incentive program for

reporting injuries. The Court finds that Ms. Smith signed the form and continued to work

at the worksite with no problems.

Mr. Hovatter said he did not see Ms. Smith suffer an injury nor did she appear

injured on September 12 or any day after. Mr. Keister and Mr. Laub observed Ms. Smith

multiple times daily, and they did not witness her injury, nor did she report an injury to

them either. Despite continuing to work at the site and see Walbridge management, she

never reported an injury.

3

Further, her testimony was agitated and defensive with unreasonable explanations.

See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014) (discussing indicia of witness

credibility). The Court finds Mr. Hovatter, Mr. Keister, and Mr. Laub credible. They were

steady, forthcoming, reasonable, and confident.

Therefore, the Court holds Ms. Smith is not likely to prove she suffered a work-

related injury at a hearing on the merits that entitles her to benefits.

IT IS THEREFORE ORDERED as follows:

1. Ms. Smith’s request for medical and temporary disability benefits is denied.

2. The Court sets a status conference on May 14, 2024, 1:30 p.m. Central Time.

The parties must call (866) 943-0014 to participate. Failure to call might result in a

determination of the issues without the party’s participation.

ENTERED March 8, 2023.

________________________________________

Judge Shaterra R. Marion

Court of Workers’ Compensation Claims

APPENDIX

Exhibits:

1. [for identification only] Seaton Family Medical Records

2. [for identification only] Flinn Medical Records

3. Duplicate Petition for Benefit Determination filed July 5, 2023

4. First Report of Injury

5. Notice of Denial

6. Daily Task Analysis

7. Incident Log

8. Statement of Justin Keister

9. Rule 72 Declaration of Randy Auer

10. Statement of Mark Laub

11. Statement of Joshue Hovatter

12. Email from Randy Dillard to Randy Auer

4

13. Petition for Benefit Determination filed February 23, 2023

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice with additional issues

3. Request for Hearing with Affidavit of Shirley Smith

4. Order on Status Hearing Sept. 27, 2023

5. Order Granting Motion to Compel and Motion for Continuance; Dec. 17, 2023

6. Order Denying Motion to Dismiss and Granting Motion for Sanctions

7. Employee’s Witness List

8. Employee’s Exhibit List

9. Employer’s Witness List

10. Employer’s Exhibit List

11. Employer’s Pre-Hearing Brief

12. Order on Status Hearing and Motions; February 23, 2024

13. Order Granting Employer’s Motion to Strike Employee’s Exhibit List

14. Notice of Filing (Medical Records)

15. Motion for Reconsideration re Employee’s Exhibits

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on March 8, 2024.

Name Email Sent to

Paul Robinson, X problaw937@hotmail.com

Employee’s Attorney marie8558@yahoo.com

Chancey Miller, X cmiller@carrallison.com

Employer’s Attorney

Timothy Kellum, X timothy.kellum@tn.gov

Subsequent Injury Fund

Attorney

_______________________________________

Penny Shrum

Clerk, Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov

5

NOTICE OF APPEAL

Tennessee Bureau of Workers’ Compensation

www.tn.gov/workforce/injuries-at-work/

wc.courtclerk@tn.gov | 1-800-332-2667

Docket No.: ________________________

State File No.: ______________________

Date of Injury: _____________________

___________________________________________________________________________

Employee

v.

___________________________________________________________________________

Employer

Notice is given that ____________________________________________________________________

[List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the

Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-

stamped on the first page of the order(s) being appealed):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ Other Order filed on_____________________

issued by Judge _________________________________________________________________________.

Statement of the Issues on Appeal

Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

Parties

Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee

Address: ________________________________________________________ Phone: ___________________

Email: __________________________________________________________

Attorney’s Name: ______________________________________________ BPR#: _______________________

Attorney’s Email: ______________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellant *

LB-1099 rev. 01/20 Page 1 of 2 RDA 11082

Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________

Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee

Appellee’s Address: ______________________________________________ Phone: ____________________

Email: _________________________________________________________

Attorney’s Name: _____________________________________________ BPR#: ________________________

Attorney’s Email: _____________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a

true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described

in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this

case on this the __________ day of ___________________________________, 20 ____.

______________________________________________

[Signature of appellant or attorney for appellant]

LB-1099 rev. 01/20 Page 2 of 2 RDA 11082