Babb, Willis Ray v. House Hasson Hardware Company ( 2017 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Willis Ray Babb ) Docket No. 2016-03-0095
)
v. ) State File No. 88593-2015
)
House Hasson Hardware Company, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Pamela B. Johnson, Judge )
Affirmed and Remanded - Filed January 26, 2017
The employee in this interlocutory appeal suffered compensable injuries to his left foot,
which he asserts resulted in an injury to his left knee. The employer denied benefits for
the alleged knee injury. The trial court ordered the employer to provide a panel of
physicians. The employer has appealed. The trial court’s decision is affirmed and the
case is remanded.
Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge David F. Hensley and Judge Timothy W. Conner joined.
D. Brett Burrow, Nashville, Tennessee, for the employer-appellant, House Hasson
Hardware Company
Timothy A. Roberto, Knoxville, Tennessee, for the employee-appellee, Willis Ray Babb
Memorandum Opinion1
Willis Ray Babb (“Employee”), a truck driver for House Hasson Hardware
Company (“Employer”), alleged that on October 12, 2015, a pallet jack carrying a heavy
1
“The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Appeals Bd. Prac. & Proc. § 1.3.
1
load struck his left foot, breaking two toes. 2 He reported the incident immediately and
finished his delivery schedule. Employee saw a physician the following day who
recommended ice and rest, and Employee informed Employer he intended to take off the
rest of the week to recover. Employer accepted Employee’s foot injury as compensable,
and there is no dispute with respect to benefits for that injury.
Upon returning to work the following week, Employee experienced pain in his left
knee. He informed his supervisor that his knee was hurting, and both men speculated that
the knee problem might be due to Employee’s altered gait as a result of his foot injury.
No further action was taken with respect to Employee’s knee, and he continued to work
his shifts.
On December 30, 2015, Employee was making a delivery when he reported
stepping up onto a pallet and feeling either a pop or buckling of his knee. He indicated
that it was then he realized something was wrong with his knee. On January 9, 2016,
Employee texted his supervisor to request that someone else make his deliveries as his
knee “blew out” the previous evening and he needed to go to the doctor. Upon further
inquiry by Employer, Employee stated that he was at home and was getting up from the
floor when he realized his left leg would not support his weight.
Employee discussed his knee complaints with his primary care physician, Dr. Brad
Flaming, at appointments that had been previously scheduled for unrelated conditions.
Dr. Flaming recommended an MRI, which revealed a medial meniscal tear. Employer
denied the claim for the knee injury because the “complaints are not causally related to
the compensable injuries sustained to” Employee’s foot. 3
The parties agreed to forego an evidentiary hearing, and the trial court ordered
Employer to provide a panel of physicians for Employee’s knee complaints “made
reasonably necessary by the October 12, 2015 injury.” Employer has appealed, asserting
that the trial court failed “to consider or at least reference all proof” in its decision and,
therefore, the court’s decision was not supported by the record. Employer faults the trial
court for failing to consider text messages between Employee and his supervisor, as well
2
Employer’s name appears variously in the record as House Hasson Hardware Company, Inc.; House-
Hasson Hardware Company, Inc.; House-Hassan Hardware Company; House Hasson Acquisition
Company; House Hassan Acquisition Company/Triple H Delivery; and House Hasson Acquisition
Company/Triple H Delivery. It is unclear which of these names and spellings correctly identifies
Employer. For the sake of consistency, we have identified Employer as it appears in the trial court’s
order being appealed.
3
Employer’s Notice of Denial, filed on April 4, 2016, references a right knee condition and a claim for
injuries to Employee’s right toes. As Employee has made no claim for injuries to his right foot or leg, we
assume Employer intended to reference the left foot and knee.
2
as the trial court’s purported failure to consider “conflicting testimony by [Employee] in
his deposition, recorded statement, and affidavit.”
We find no merit in Employer’s contentions. While the text message sent by
Employee on January 9, 2016 indicates that he “blew out” his knee the previous night, at
a time when he was not working, Employee’s deposition testimony clarifies this
statement. Employee had been experiencing knee complaints that he believed were
related to the work accident on October 12, 2015 and, on the night of January 8, 2016,
while getting up from the floor, his left knee became unable to bear his weight. Further,
Employee described suffering a foot injury – two broken toes – such that the pain in his
foot was the only pain he initially noticed. When he returned to work, he had a severe
limp, and he attributed his more recently developed left knee pain to his altered gait, as
did his supervisor.
The trial court thoroughly addressed the evidence and determined Employee
presented sufficient proof to establish he will likely prevail at trial in establishing that his
left knee complaints are causally related to the compensable left foot injury. We find
nothing in the record to convince us otherwise. Nor is there any indication in the trial
court’s order to support Employer’s contention that the court remedially or liberally
construed the applicable law as prohibited by Tennessee Code Annotated section 50-6-
116.
Finally, Employee asks that we find Employer’s appeal to be frivolous or taken
solely for delay and that sanctions be awarded in the form of attorney’s fees. See Tenn.
Comp. R. & Regs. 0800-02-22-.04(6) (2015) (“When it appears to the appeals board that
an appeal was frivolous or taken solely for delay, the appeals board may, either upon
motion of a party or of its own motion, award expenses, including reasonable attorney’s
fees, incurred by the appellee as a result of the appeal.”). A frivolous appeal is one that is
devoid of merit, Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978),
or one that has no reasonable chance of succeeding, Davis v. Gulf Ins. Grp., 546 S.W.2d
583, 586 (Tenn. 1977). While the issue is close, we are not convinced this appeal is
frivolous.
For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court’s decision. Nor does the trial court’s decision violate any of the standards
identified in Tennessee Code Annotated section 50-6-217(a)(3). Accordingly, the trial
court’s decision is affirmed. The case is remanded for any further proceedings that may
be necessary.
3
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Willis Ray Babb ) Docket No. 2016-03-0095
)
v. ) State File No. 88593-2015
)
House Hasson Hardware Company, et al. )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 26th day of January, 2017.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Timothy Roberto X troberto@brownandroberto.com
Brett Burrow X bburrow@burrowlee.com
Pamela B. Johnson, X Via Electronic Mail
Judge
Kenneth M. Switzer, X Via Electronic Mail
Chief Judge
Penny Shrum, Clerk, X Penny.Patterson-Shrum@tn.gov
Court of Workers’
Compensation Claims
Jeanette Baird
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: Jeanette.Baird@tn.gov