Forester, Angela v. Pilgrim’s Pride Corp. ( 2021 )

FILED
Jun 18, 2021
09:59 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Angela Forester, ) Docket No.: 2020-01-0445
Employee, )
v. )
Pilgrim’s Pride Corp., ) State File No.: 20584-2020
Employer, )
And )
American Zurich Ins. Co., ) Judge: Audrey A. Headrick
Insurance Carrier. )
COMPENSATION ORDER
Ms. Forester requested workers’ compensation benefits for a left-knee injury from
a trip and fall at work. Pilgrim’s Pride denied benefits asserting her fall was idiopathic and
did not arise out of the employment due to any hazard. After a June 11, 2021 Compensation
Hearing, the Court agrees with Pilgrim’s Pride and holds Ms. Forester is not entitled to
benefits.
History of Claim
The dispute in this case is whether Ms. Forester tripped and fell over her feet or a
pressure washer wand allegedly lying on an uneven platform surface.1 The witnesses’
testimony differed over what Ms. Forester reported after she fell and what they saw at the
location where she fell. No one witnessed Ms. Forester’s fall, and the evidence suggested
that no working camera taped the incident.
While working on March 17, 2020, Ms. Forester tripped and fell, injuring her left
knee. She believed it was raining that day, and “everything was wet.” Ms. Forester was
carrying a file folder to meet with Jared Webber, her immediate supervisor, in his office.
1
The parties used the phrase “pressure washer” and “power washer” interchangeably throughout the
hearing.
She testified she exited the “Mill Office” building, went down the stairs, and attempted to
step over a pressure washer wand lying on the platform. However, her right foot caught
on the wand, causing her to fall off the platform, hitting her left leg on the pavement. Ms.
Forester stated the stepdown from the platform to the road was part of the reason for her
fall. She also said she could have been looking at the papers in her folder. Ms. Forester
stated the pressure washer was left on the platform by Edwin Hunt, who had been using it
all morning.
Mr. Hunt, who worked in utility maintenance, was the first person to see Ms.
Forester after her fall. He stated she was sitting on the ground when he approached her,
and she told him she tripped over her own feet.2 Mr. Hunt testified he pressure washed the
shop building that morning, and no equipment was near her. He acknowledged he might
have gotten into trouble if someone fell over a pressure washer but said he would have
taken responsibility had that happened.
Ms. Forester’s immediate supervisor, Mr. Webber, was the next person who saw her
after the fall. Ms. Forester testified she went straight to Mr. Webber’s office and told him
she fell over a pressure washer wand. However, Mr. Webber stated she told him, “I just
fell” without referencing a pressure washer.
After leaving Mr. Webber’s office, Ms. Forester saw co-worker/friend, Gail
Chapman. Ms. Chapman confirmed Ms. Forester said she tripped and fell but did not
mention a pressure washer. In contrast, Ms. Forester stated she told Ms. Chapman she
“tripped over the [expletive] pressure washer.” Ms. Chapman assisted her with minor first-
aid for her knee and photographed it.
Then, Ms. Forester called co-worker/friend, Faith York, who worked in the truck
shop. Ms. York stated Ms. Forester told her she tripped over a pressure washer wand but
did not want to get anyone in trouble, so she said she was going to say she tripped over her
own feet.
After Ms. Forester reported the injury to supervisor, Greg Muir, he completed an
Incident Investigation Team Report. On the form, he noted Ms. Forester “was walking
between office buildings” and stated to him, “I tripped over my own two feet.” Mr. Muir
also noted the concrete was dry, it was a sunny day, and it was 45 degrees. At trial, he
stated that no pressure washer was located near the Mill Office; Mr. Hunt had only pressure
washed the shop building.3
Mr. Muir maintained that the first time Ms. Forester told him about the pressure
washer was approximately two to three weeks after her injury, when denied short-term
2
Mr. Hunt’s May 14, 2020 handwritten statement does not state she told him she tripped over her own feet.
3
Mr. Muir stated that Ms. Forester and her attorney took the photographs of the buildings.
disability. Mr. Muir testified Ms. Forester said, “Somebody is going to [expletive] pay for
this. If I can’t get [short term disability], I’ll file for workers’ compensation. I’ll say I fell
over the power washer.” Ms. Forester explained that she applied for short-term disability
due to the pandemic, since she and her husband have heart conditions. She denied that the
first time she told Mr. Muir about the pressure washer was two to three weeks after her
injury.
Star Massey, a co-worker/friend, also testified about the pressure washer. She
worked in the truck shop building with Ms. York, which is located approximately 400 feet
from the incident site. After Ms. Forester called Ms. York, Ms. Massey stated she looked
out a second-floor window towards Ms. Forester’s building and saw a pressure washer
lying by the steps but not on the platform. Further, Ms. Massey stated Ms. Forester never
said she tripped over her own feet, only that she tripped over the wand.
On the day of injury, Ms. York took Ms. Forrester to the in-house clinic, where Ms.
Forester completed an Employee’s Report of Injury Form. She wrote the injury occurred
in the driveway between two buildings. Ms. Forester also wrote, “walking between the
building @ feed mill fell.” In the Occupational Health Note, a nurse wrote, “EE brought
in due to fall on same level pavement. EE walked between the driveways tripped [illegible]
fell.” Ms. Forester testified she intentionally did not mention the pressure washer because
she did not want Mr. Hunt to get in trouble for leaving it unattended.
Later that day, Ms. Forester received treatment at an urgent care clinic. Records
from the visit state she was there “after tripping on her feet, she reports and falling down
with left knee, right hand and left elbow hitting the ground about 10:30 this morning.”4
The record does not mention a pressure washer.
Almost a month later, Ms. Forester sought treatment with orthopedist Dr. Jason
Rogers.5 She reported she was there “for evaluation of left knee pain after a fall at work
on March 17, 2020 when she was walking and tripped.” Ms. Forester continued treating
with Dr. Rogers, who placed her at maximum medical improvement on March 9, 2021,
with a one-percent whole-body rating. Although Dr. Rogers’s medical records do not
mention a power washer, Ms. Forester testified she was positive she told him about it.
Findings of Fact and Conclusions of Law
At a Compensation Hearing, Ms. Forester must prove by a preponderance of the
evidence that she is entitled to benefits. Tenn. Code Ann. § 50-6-239(c)(6) (2020).
4
The evidence does not reflect whether Pilgrim’s Pride authorized the visit.
5
The evidence does not suggest whether Pilgrim’s Pride authorized any of Dr. Rogers’s treatment.
Idiopathic Injury
The threshold issue is whether Ms. Forester suffered an idiopathic injury. An
idiopathic injury is defined as “one that has an unexplained origin or cause, and generally
does not arise out of the employment unless ‘some condition of the employment presents
a peculiar or additional hazard.’” McCaffery v. Cardinal Logistics, 2015 TN Wrk. Comp.
App. Bd. LEXIS 50, at *9 (Tenn. Workers’ Comp. App. Bd. Dec. 10, 2015).
Here, the Court finds that Ms. Forester failed to show a “peculiar or additional”
hazard of employment sufficient to cause her injury to arise out of her employment.
“Tennessee courts have consistently held that an employee may not recover for an injury
occurring while walking unless there is an employment hazard, such as a puddle of water
or a step, in addition to the injured employee’s ambulation.” Bullard v. Facilities,
Performance Grp., 2018 TN Wrk. Comp. App. Bd. LEXIS 37, at *11 (Aug. 17, 2018).
Aside from her own testimony, Ms. Forester’s only corroborating evidence that she
tripped over a pressure washer rather than her feet was provided by two co-workers/friends.
Faith York and Star Massey both stated Ms. Forester told them she tripped over a pressure
washer. However, Ms. Massey said she saw the pressure washer by the steps, not on the
platform. Further, Ms. York said Ms. Forester told her she planned to say she tripped over
her own feet to keep Edwin Hunt from getting in trouble.
Nevertheless, Ms. Forester insisted that she told supervisors Jarred Webber and
Greg Muir and co-worker/friend, Gail Chapman that she tripped over a pressure washer
immediately after her fall. Mr. Webber and Ms. Chapman testified Ms. Forester told them
she just fell, and Mr. Muir testified she told him she tripped over her own two feet.
Ms. Forester also asserted for the first time at trial that she could have been looking
at the papers in her file folder, and she also blamed the step-off from the platform to the
driveway for her fall.
In addition to conflicting witness testimony, the internal forms created on the date
of the injury and the medical records are silent about a pressure washer or uneven walking
surface. The Employee’s Report of Injury Form completed by Ms. Forester specified she
fell while “walking between the building and feed mill.” The in-house nurse documented
“EE brought in due to fall on same level pavement. EE walked between the driveways
tripped [illegible] fell.” The same day Ms. Forester reported “tripping on her feet” to the
provider at the urgent care clinic. Dr. Rogers’s medical records reflect Ms. Forester
reported she was “walking and tripped.” Ms. Forester introduced no evidence of any
internal forms or medical records documenting a pressure washer or uneven walking
surface as the cause of her fall.
Ms. Forester’s credibility is intricately tied to her claim that she tripped over a
pressure washer. Considering the testimony and documentary evidence, the Court does
not find Ms. Forester credible. Her arguments that she tripped over a pressure washer
wand, could have been looking at papers in her file folder, or that the step-down from the
platform to the driveway contributed to her fall, are not persuasive. Rather, the internal
forms generated on the date of the fall, combined with the medical records and
corroborating testimony, suggest Ms. Forester sustained an idiopathic injury when she
tripped and fell over her feet while walking between two buildings on a level surface.
Therefore, the Court holds Ms. Forester failed to show, by a preponderance of the
evidence, that her left-knee injury arose primarily out of her employment, and her claim
for workers’ compensation benefits is denied.
Alternative Findings
Solely in the event that an appellate court finds error in the compensability holding,
the Court makes the following alternative findings for the sake of judicial economy. See
Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 137-138 (Tenn. 2001). (“The trial court
should . . . hear the entire case and make appropriate findings of fact, and alternative
findings when necessary, for appellate review.”)
Regarding permanent disability benefits, the parties stipulated to the following:
◼ Dr. Rogers placed Ms. Forester at maximum medical improvement on March 9,
2021, with a one-percent rating to the body as a whole.
◼ Her average weekly wage of $1,064.9 equates to a weekly compensation rate of
$798.69.
◼ Ms. Forester is entitled to the multipliers of 1.35 for not returning to work and
1.2 because she is over forty years old.
◼ Ms. Forester’s original award and resulting award total $5,822.46.
Therefore, the Court holds in the alternative that Ms. Forester is entitled to an original
award of permanent partial disability benefits and increased benefits totaling $5,822.46.
As to future medical benefits, Ms. Forester had extensive medical treatment with
Dr. Rogers. Ms. Forester is entitled future medical treatment with Dr. Rogers as her
treating physician.
The parties stipulated Ms. Forester incurred $2,205.04 in out-of-pocket expenses
and $608.18 in unpaid mileage. The Court holds that Ms. Forester is entitled to $2,813.22
for out-of-pocket expenses and unpaid mileage.
IT IS, THEREFORE, ORDERED as follows:
1. The Court denies Ms. Forester’s workers’ compensation claim.
2. Pilgrim’s Pride shall pay the $150.00 filing fee to the Clerk within five business
days after this order becomes final under Tennessee Compilation Rules and
Regulations 0800-02-21-.06 (Aug. 2019).
3. Pilgrim’s Pride shall file form SD-2 with the Clerk within ten business days of
this order becoming final.
4. Unless appealed, this order shall become final in thirty days.
ENTERED June 18, 2021.
_____________________________________
Judge Audrey A. Headrick
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Medical records of Dr. Jason Rogers
2. Photos of accident scene
3. Incident Investigation Team Report
4. Employee’s Report of Injury Form
5. Handwritten statement of Edwin Hunt
6. Occupational Health Note
7. Physicians Care medical note, dated March 17, 2020
8. Dr. Roger’s office note, dated April 20, 2020
9. Photo of accident scene
10. Aerial photo of truck shop
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice, filed August 25, 2020
3. Request for Expedited Hearing
4. Motion for In-Person Evidentiary Hearing
5. Motion to Withdraw Expedited Hearing Request
6. Agreed Order
7. Scheduling Order
8. Agreed Order of Substitution
9. Dispute Certification Notice, filed May 28, 2021
10. Employer’s Witness and Exhibit List
11. Employer’s Trial Brief
12. Employee’s Pre-Trial Memorandum
13. Pre-Compensation Hearing Statement
14. Plaintiff’s Proposed Witness & Exhibit List
CERTIFICATE OF SERVICE
I certify that a copy of this Compensation Order was sent as indicated on June 18, 2021.
Name Certified Email Service sent to:
Mail
Brent Burks, X brentburks@mcmahanlawfirm.com
Employee Attorney
Cliff Wilson, X cwilson@howardtatelaw.com
Employer Attorney
/s/Penny Shrum w/permission JD
______________________________________
Penny Shrum, Court Clerk
WC.CourtClerk@tn.gov