Bates, Pamela v. Command Center, Inc. , 2015 TN WC 22 ( 2015 )

FILED
FebruaT)' 27 , 2015
~ C OL:RTOF
WORKIRS' C O:'\IPE :"'S ATIO~
CLAI:'\I S
Time: 9:5JA.\1
COURT OF WORKERS' COMPENSATION CLAIMS
DIVISION OF WORKERS' COMPENSATION
EMPLOYEE: Pamela Bates DOCKET#: 2014-06-0053
STATE FILE#: 86152-2014
EMPLOYER: Command Center, Inc. DATE OF INJURY: August 26,2014
INSURANCE CARRIERITPA: Gallagher Bassett
EXPEDITED HEARING ORDER
THIS CAUSE came before the undersigned Workers' Compensation Judge on February 26,
2015, upon the Request for Expedited Hearing filed by Pamela Bates, Employee, on February 5,
2015, pursuant to Tennessee Code Annotated section 50-6-239 to determine ifEmployer, Command
Center, Inc. ("CCI"), is obligated to provide temporary disability and/or medical benefits.
The undersigned Workers' Compensation Judge conducted a telephonic Expedited Hearing
on February 26, 2015. Ms. Bates represented herself. A representative of CCI and its workers'
compensation carrier third-party administrator, Gallagher Bassett ("Carrier"), claims adjustor Tamala
Gilbert-Harris, appeared but did not participate 1. Considering the applicable law, Ms. Bates'
testimony and argument and the technical record, this Court finds that Ms. Bates did not sustain a
compensable injury and is not entitled to the requested benefits.
ANALYSIS
Issue
Whether Ms. Bates sustained an injury that arose primarily out of and in the course and
scope of employment with CCI
1 The "Mediation and Hearing Procedures" governing practice in the Court of Workers' Compensation Claims provides
that at any hearing or mediation proceeding, "Any corporation or other artificial person may participate through a duly
authorized representative such as an officer, director or appropriate employee, but must be represented by counsel in all
proceedings occurring in the court ofworkers' compensation claims ... []" Tenn. Comp. R. & Regs., 0800-02-21-
.05(1)(c) (2014). (Emphasis added.)
After the Expedited Hearing, Ms. Gilbert-Harris contacted the Clerk of Court for the Court of Workers'
Compensation Claims to ascertain the e-mail address where the Notice of Expedited Hearing was sent. It appears
that due to a clerical error, Ms. Harris did not receive notice ofthe hearing, and as a result did not retain counsel.
However, in light of the Court's finding ofnoncompensability, CCI and Carrier suffered no prejudice as a result of
their nonparticipation by counsel in the hearing.
Evidence Submitted
Ms. Bates testified but failed to formally move any documentation into evidence. The Court
designated the following as the technical record:
• Request for Expedited Hearing, February 5, 2015
• Dispute Certification Notice, January 12, 2015
• Petition for Benefit Determination, October 16, 2015.
The Court did not consider attachments to the above filings not admitted into evidence during
the Expedited Hearing. The Court considered factual statements in the above filings and their
attachments as allegations unless established by the evidence.
History of Claim
Ms. Bates is a 50-year-old resident of Davidson County, Tennessee. She testified that on
August 26, 2014, she reported to work for CCI at Walmart on 2421 Powell Avenue in Nashville.
Her supervisor assigned her to unload a truck. She stated that while performing her duties, a co-
worker who was not scheduled to work, Kerry Lindsey, approached her inside the truck and said,
"Bitch, you're in the business." She responded that he was drunk and he should "get out of my
face." He then "mugged" her by hitting her in the face. Ms. Bates immediately contacted her
supervisor, who asked to speak with Mr. Lindsey. Ms. Bates refused to give him her phone. Mr.
Lindsey proceeded to throw a water bottle, which hit Ms. Bates' face. Ms. Bates telephoned the
police and then sought medical care. The Nashville Fire Department EMS transported Ms. Bates to
the hospital. Ms. Bates incurred a statement for this in the amount of$707.20, which CCI declined
to pay.
Ms. Bates testified that she worked with Mr. Lindsey previously and never had any prior
conflicts with him. She did know why he was present. The Court asked whether the altercation had
anything to do with work, to which Ms. Bates responded, "I can't say." She stated she believes he
was intoxicated at the time. According to Ms. Bates, CCI terminated her the next day because of the
"personal conflict."
Employee's Contentions
Ms. Bates contends she sustained a compensable injury when Mr. Lindsey assaulted her
at work.
Findings of Fact and Conclusions of Law
Standard Applied
When determining whether to award benefits, the Judge must decide whether the moving
party is likely to succeed on the merits at trial given the information available. See generally,
McCallv. Nat'l Health Care Corp., 100 S.W.3d 209,214 (Tenn. 2003). In a workers' compensation
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action, pursuant to Tennessee Code Annotated section 50-6-239(c)(6), the employee shall bear the
burden of proving each and every element of the claim by a preponderance of the evidence. The
employee must show the injury arose primarily out of and in the course and scope of employment.
Tenn. Code Ann.§ 50-6-102(13) (2014).
Dispositive Factual Finding
On August 26,2014, Mr. Lindsey hit Ms. Bates in the face while she was at work. The
injury was the result of an inherently private dispute.
Application ofLaw to Facts
Ms. Bates' injury did not arise primarily out of and in the course and scope of her
employment with CCI
Tennessee Code Annotated Section 50-6-102(13) defines an injury as follows :
"Injury" or "personal injury" mean an injury by accident . . . arising
primarily out of and in the course and scope of employment, that causes
... the need for medical treatment of the employee; provided, that:
(A) An injury is "accidental" only if the injury is caused by a
specific incident, or set of incidents, arising primarily out of
and in the course and scope of employment . . . [.]
Tenn. Code Ann. § 50-6-102(13)(A) (2014). An injury occurs in the "course of employment" if it
takes place while the employee performs a duty she was employed to perform. Fink v. Caudle, 856
S.W.2d 952, 958 (Tenn. Workers' Comp. Panel, 1993). Ms. Bates was at work unloading a truck,
her assigned task, when the assault took place. Therefore the injury occurred in the course of her
employment. The determinative issue is whether Ms. Bates' injury arose primarily out of her
employment.
The statutory definition of"injury" additionally provides: "An injury 'arises primarily out of
and in the course and scope of employment' only if it has been shown by a preponderance of the
evidence that the employment contributed more than fifty percent (50%) in causing the injury,
considering all causes[.]" Tenn. Code Ann.§ 50-6-102(13)(B) (2014).
The Tennessee Supreme Court recognized the following three categories for workplace
assaults:
(1) Assaults with an "inherent connection" to employment, such as disputes over
performance, pay or termination;
(2) Assaults stemming from "inherently private" disputes imported into the employment
setting from the claimant's domestic or private life and not exacerbated by the employment;
and,
(3) Assaults resulting from a "neutral force" such as random assaults on employees by
individuals outside the employment relationship.
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Woods v. Harry B. Woods Plumbing Co., 967 S.W.2d 768,771 (Tenn. 1998). Assaults falling into
the first category are compensable. Waitv. Travelers Indem. Co. oflll., 240 S.W.3d220, 227 (Tenn.
2007). Assaults falling into the second category are not. Woods, at 771. The compensability of
assaults falling into the third category "depend[s] on the facts and circumstances of the
employment." !d.
Ms. Bates testified that she "can't say" the injury is work-related. Therefore, her injury does
not fall into the first category because, by her own admission, the dispute between her and Mr.
Lindsey had no inherent connection to her employment. The dispute did not stem from
"performance, pay or termination," or any matter that appears to have a connection to work, other
than the tangential fact that CCI employed them both. Further, the assault cannot be classified as
resulting from a "neutral force," because it was not a "random assault ... by individuals outside the
employment relationship," since Mr. Lindsey was a co-worker.
The incident is an "inherently private dispute," not exacerbated by the employment. Ms.
Bates testified that she does not know why Mr. Lindsey assaulted her, other than his intoxication.
She stated that her termination was due to "personal conflict." While she likely disputes CCI' s
characterization, it is further indication to the Court that there is no connection between her work and
the injury.
The Court finds Ms. Bates' testimony credible. The Court sympathizes with her pain and
frustration. Notwithstanding, this Court finds that Ms. Bates is not entitled to workers'
compensation benefits because the injury did not arise primarily out of and in the course and scope of
her employment.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Bates' claim against CCI and its workers' compensation carrier for the requested
benefits is denied on the grounds of compensability.
2. This matter is set for Initial Hearing on April1, 2015, at 9:00a.m. Central Time.
ENTERED this the 27th day of February, 2015.
enneth M. Switzer, e
Court of Workers' Compensation Claims
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Initial Hearing:
An Initial Hearing has been set with Chief Judge Kenneth M. Switzer, Court of Workers
Compensation. You must dial in at 615-532-9552 or 866-943-0025 toll free to participate in
your scheduled conference.
Please Note: You must call in on the scheduled date/time to participate. Failure to call in
may result in a determination of the issues without your further participation. All conferences
are set using Central Time (CT).
Right to Appeal :
Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal the
decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, you must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven (7) business days ofthe date the
Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Request for Appeal upon the opposing party.
4. The parties, having the responsibility of ensuring a complete record on appeal, may request
from the Court Clerk the audio recording of the hearing for the purpose ofhaving a transcript
prepared by a licensed court reporter and filing it with the Court Clerk within ten (1 0)
calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the
parties may file a statement of the evidence within ten (1 0) calendar days of the filing of the
Expedited Hearing Notice of Appeal. The Judge must approve the statement ofthe evidence
before the Clerk of Court shall submit the record to the Clerk of the Appeals Board.
5. If the appellant elects to file a position statement in support ofthe interlocutory appeal, the
appealing party shall file such position statement with the Court Clerk within three (3)
business days of the filing of the Expedited Hearing Notice of Appeal, specifying the issues
presented for review and including any argument in support thereof. If the appellee elects to
file a response in opposition to the interlocutory appeal, appellee shall do so within three (3)
business days of the filing of the appellant's position statement.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to the
following recipients by the following methods of service on this the 27th day of February, 2015.
Name Certified First Via Fax Via Email Address
Mail Class Fax Number Email
Mail
Pamela Bates X Pamelabates14(@,yahoo.com
Employee
Tamala Gilbert- X Tamala gilbert-harris(@,gbt~a.com
Harris, Carrier's
ad.iustor
, Clerk of Court
orkers' Compensation Claims
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