Webb, Jackie v. Enrema, Inc. ( 2017 )


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  • FILED
    December 18, 2017
    TN COURT OF
    EES. WORKERS’ COMPENSATION
    IT RBS. CLAIMS
    i fencapent BR
    ay Time: 1:12 P.M. EASTERN
    TENNESSEE BUREAU OF WORKERS’ COMPENSATION
    IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
    AT KNOXVILLE
    JACKIE WEBB, ) Docket No. 2016-03-1200
    Employee, )
    Vv. )
    ENREMA, LLC, ) State File No. 69263-2016
    Employer, )
    And )
    AIG INSURANCE COMPANY, ) Judge Lisa A. Lowe
    Insurance Carrier. )
    EXPEDITED HEARING ORDER
    DENYING BENEFITS
    This matter came before the undersigned Workers’ Compensation Judge on
    November 28, 2017, for an Expedited Hearing. The central legal issue is whether Jackie
    Webb demonstrated he is likely to prevail at a hearing on the merits that his injury arose
    primarily out of and in the course and scope of his employment with Enrema and, if so,
    whether he is entitled to medical and temporary disability benefits. For the reasons set
    forth below, the Court holds Mr. Webb failed to demonstrate he is likely to prevail at a
    hearing on the merits. Therefore, the Court denies his claim at this time.
    History of Claim
    Mr. Webb worked for Enrema as a well tender. His job duties consisted of
    gauging well pressures, changing belts and spark plugs, and performing general
    maintenance and landscaping around the wells. Enrema issued Mr. Webb a truck, tools,
    and a weed eater to perform his job duties. While driving his work truck in the early
    morning hours of August 13, 2016, Mr. Webb swerved to miss a deer and hit a tree. He
    injured his neck, legs, hip, and low back. Emergency personnel transported him to the
    hospital where he underwent surgery.
    Mr. Webb remained in-patient for three days before the attending physician
    discharged him, restricting him from heaving lifting, driving, and toe touch weight
    1
    bearing of the left leg. He subsequently received follow-up orthopedic care. Mr. Webb
    contacted Mr. Campbell to determine whether Enrema could accommodate his
    restrictions, but Mr. Campbell terminated him. Mr. Webb filed a C-32 Medical Report
    that indicated he was unable to work from August 13, 2016, until April 17, 2017. He
    testified that he has not worked since the accident.
    Enrema denied Mr. Webb’s claim on grounds that he was not in the course and
    scope of his employment at the time of the accident. Specifically, Enrema contended Mr.
    Webb had no reason to be working at 4:30 a.m. on August 13, a Saturday. In the
    alternative, if Mr. Webb intended to work that day, he deviated on a personal errand at
    the time of the accident. The parties gave the following testimony regarding this disputed
    issue.
    Mr. Webb
    During the week of the accident, Mr. Webb told Mr. Campbell that he needed to
    take Friday, August 12, off to take his fiancée, Ms. Barnes, to a doctor’s appointment in
    Nashville and would make up the work on Saturday, August 13.
    Mr. Webb testified he drove Ms. Barnes to Nashville on Friday and stayed in his
    vehicle while she attended her appointment. He provided an “excuse note” from Dr. Raju
    Indukuri’s office showing she had an appointment on August 12. Later in the day, Mr.
    Campbell contacted Mr. Webb to advise he could pick up his paycheck. Sometime
    around 5:00 p.m., Mr. Webb returned to Enrema. While there, he got belts and
    equipment.
    Mr. Webb testified that he got up at 4:00 a.m. on Saturday, August 13, to try to
    finish his work by 6 p.m. He loaded some of his supplies and equipment in his work
    truck and headed toward the Brimstone well. After traveling a short distance, Mr. Webb
    realized that he left his tool bag with $20.00 in it and Enrema’s weed eater at his house.
    Mr. Webb maintained he turned around to go home to get the items. He said he needed
    the money to buy oil for the weed eater. Shortly after turning around, Mr. Webb had the
    accident.
    Mr. Webb provided a recorded statement to an adjuster. He acknowledged that he
    told the adjuster he turned around to go back and get his money and did not mention
    needing his tool bag or the weed eater or that he needed money to buy oil. Mr. Webb
    conceded that Enrema had an account at a local gas station and he could have obtained
    the oil without having to pay for it and that he did not need money to perform his job
    duties. Mr. Webb agreed it was dark at 4:30 a.m. and that he had a crossbow in his truck
    at the time of his accident. However, he said it was not for deer hunting but was for
    protection in case he encountered a snake.
    Mr. Campbell
    Mr. Campbell confirmed that on a prior occasion he let Mr. Webb take off on a
    Friday and make up the work on a Saturday. He also agreed that Mr. Webb told him he
    needed this particular Friday off to take Ms. Barnes to an appointment in Nashville and
    that he would make up the work the next day. However, Mr. Campbell’s remaining
    testimony varied from Mr. Webb’s significantly. Mr. Campbell testified that when Mr.
    Webb came to pick up his check, he looked as if he had been working, so he asked Mr.
    Webb if he went to Nashville. He said Mr. Webb told him he did not have the money to
    go to the appointment. Because of that, he thought Mr. Webb worked that Friday and
    would not be working on Saturday.
    Enrema averred that Mr. Webb did not go to Nashville for Ms. Barnes’
    appointment on August 12 and filed the declaration of Dr. Indukuri. Dr. Indukuri stated
    Ms. Barnes is one of his patients; the excuse note was in error; and he was not aware of
    how Ms. Barnes came to obtain it. He said Ms. Barnes did not attend an appointment at
    his office on August 12 because his office was closed. He further stated that he saw Ms.
    Barnes on August 15. Therefore, Mr. Webb had no reason to be working Saturday.
    Even if Mr. Webb intended to work, Enrema contended he deviated on a personal
    errand at the time of the accident. Mr. Campbell testified that it was dark at 4:30 a.m.
    and a person would not be able to attend gauges in the dark. Enrema relied on Mr.
    Webb’s recorded statement where he said he turned around to get his money but failed to
    mention anything about his tool bag or weed eater or that he needed the money to buy oil.
    Mr. Campbell testified that Mr. Webb did not need money to perform his job duties and
    could have obtained oil on Enrema’s account.
    Findings of Fact and Conclusions of Law
    Mr. Webb bears the burden of proving all essential elements of his claim by a
    preponderance of the evidence. Scott v. Integrity Staffing Solutions, 2015 TN Wrk.
    Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). However, at an Expedited Hearing,
    his burden of proof requires him only to come forward with sufficient evidence from
    which this Court can determine that he is likely to prevail at a hearing on the merits. See
    McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
    *9 (Mar. 27, 2015).
    To be compensable, an injury must arise primarily out of and in the course and
    scope of the employment. Tenn. Code Ann. § 50-6-102(13) (2017). Traditionally, courts
    have held that the statutory requirements that an injury arise out of and in the course of
    the employment are not synonymous “although both elements exist to ensure a work
    connection to the injury for which the employee seeks benefits.” Blankenship v. Am.
    Ordnance Sys., 
    164 S.W.3d 350
    , 354 (Tenn. 2005). An injury occurs in the course of
    3
    employment if it takes place while the employee was performing a duty he or she was
    employed to perform. Fink v. Caudle, 
    856 S.W.2d 952
    , 958 (Tenn. Workers’ Comp.
    Panel 1993). Thus, the course of employment requirement focuses on the time, place,
    and circumstances of the injury. Saylor v. Lakeway Trucking, Inc., 
    181 S.W.3d 314
    , 318
    (Tenn. 2005).
    In contrast, arising out of employment refers to causation. Reeser v. Yellow
    Freight Sys., Inc., 
    938 S.W.2d 690
    , 692 (Tenn. 1997). An injury arises out of
    employment when there is a causal connection between the conditions under which the
    work is required to be performed and the resulting injury. Fritts v. Safety Nat’l Cas.
    Corp., 163 8.W.3d 673, 678 (Tenn. 2005). Put another way, the element of causation is
    satisfied when the “injury has a rational, causal connection to the work.” Braden vy.
    Sears, Roebuck & Co., 
    833 S.W.2d 496
    , 498 (Tenn. 1992). The mere presence of the
    employee at the place of injury because of the employment is not enough, as the injury
    must result from a hazard peculiar to the work or be caused by a risk inherent in the
    nature of the work. 
    Blankenship, 164 S.W.3d at 354
    . Accordingly, “an injury purely
    coincidental, or contemporaneous, or collateral, with the employment . . . will not cause
    the injury . . . to be considered as arising out of the employment.” Jackson v. Clark &
    Fay, Inc., 
    270 S.W.2d 389
    , 390 (Tenn. 1954).
    Applying these principles, the Court finds that Mr. Webb failed to establish that
    the accident and his injuries arose primarily out of and in the course and scope of
    employment. The sole reason Mr. Webb would have been working on Saturday, August
    13, was to make up time for missing work on Friday, August 12, for taking his fiancée to
    her appointment. Mr. Webb filed an excuse note from Dr. Indukuri’s office showing she
    had an appointment on August 12. However, the Court credits Dr. Inkukuri’s
    declaration, which unequivocally stated: the excuse note was in error and he was not
    aware of how Ms. Barnes obtained it; he did not see Ms. Barnes on August 12 because
    his office was closed; and he saw Ms. Barnes on Monday, August 15.
    Additionally, the Court finds the time of the accident important. Mr. Webb
    acknowledged it was dark, and Mr. Campbell testified Mr. Webb would not be able to
    perform his job duties in the dark. Mr. Webb offered no explanation as to how he would
    perform his work in the dark. Finally, the Court holds that even if Mr. Webb did plan to
    work that Saturday, he deviated on a personal errand at the time of the accident. Mr.
    Webb told the adjuster in his recorded statement that he turned around to get money. He
    did not mention the weed eater or his tool bag. Mr. Webb acknowledged that he did not
    need money to perform his job duties. Based on these facts, the Court concludes that Mr.
    Webb failed to meet his burden of proof.
    Therefore, as a matter of law, Mr. Webb has not come forward with sufficient
    evidence from which this Court concludes that he is likely to prevail at a hearing on the
    merits. His requests for medical and temporary disability benefits are denied at this time.
    4
    IT IS, THEREFORE, ORDERED as follows:
    1. Mr. Webb’s claim against Enrema, LLC and its workers’ compensation carrier for
    the requested medical and temporary disability benefits is denied at this time.
    2. This matter is set for a Scheduling Hearing on February 13, 2018, at 10:00 a.m.
    Eastern Time. The parties must call 865-594-0109 or 855-383-0003 toll-free to
    participate in the Scheduling Hearing. Failure to appear by telephone may result
    in a determination of the issues without the party’s participation.
    ENTERED December 18, 2017.
    wa A Woe
    LISA A. LOWE, JUDGE
    Court of Workers’ Compensation Claims
    APPENDIX
    Technical Record:
    gt
    go
    Petition for Benefit Determination
    Dispute Certification Notice
    Request for Expedited Hearing
    Employer’s Request for Evidentiary Hearing
    Employer’s Response to Employee’s Response to Request for Expedited
    Hearing
    Order Setting Expedited Hearing
    Employer’s Tenn. Comp. R. & Regs.0800-02-21-.14(b) Submissions
    Employee’s Pre-Trial Statement
    The Court did not consider attachments to Technical Record filings unless
    admitted into evidence during the Expedited Hearing. The Court considered factual
    statements in these filings or any attachments to them as allegations unless established by
    the evidence.
    Exhibits:
    CON DARWNHE
    Affidavit of Jackie Webb
    Deposition Transcript of Jackie Webb (Identification Only)
    Declaration of Shalondra Fitzgerald and attached Exhibits
    Declaration of Dr. Raju Indukuri and attached Exhibits
    Jackie Webb’s Responses to Employer’s First Set of Interrogatories
    Jackie Webb’s Responses to Employer’s Request for Admissions
    Medical Note of Dr. Raju Indukuri, dated August 12, 2016
    Gauge Sheet, 26 pps
    Well Names, Locations and Map, 4 pps
    10. Map of travels on Friday Morning and Evening Work Shifts
    11.Route Map for Saturday
    12. Photographs of Unloaded Tools and Equipment, 8 pps
    13. Table of Contents
    a.
    b.
    c.
    d.
    é.
    Scheduled for MRI on Spine
    Current Work Status Notes (/dentification Only)
    Standard Form Medical Report for Industrial Injuries, Form C-32, dated
    April 17, 2017
    Medical Records Certification and Medical Records of University
    Orthopedic Surgeons, 33 pps
    Medical Records of University of Tennessee Medical Center, 56 pp
    14. Wage Statement, Form C-41
    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 December 18,
    2017.
    Name Certified | Fax | Email | Service sent to:
    Mail
    Jackie Webb, x jackwebb4223@gmail.com
    Self-Represented
    Employee
    Catherine Dugan, Esq. x cate@petersonwhite.com
    Employer’s Attorney
    PENNY/(SHRUM, Court Clerk
    WC.CourtClerk@tn.gov