Polk, Ricky v. Delta Faucet , 2019 TN WC 74 ( 2019 )

FILED
May 10, 2019
08:39 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
RICKY POLK, ) Docket No. 2017-07-0644
Employee, )
Vv. ) State File No. 40864-2017
DELTA FAUCET, )
Self-Insured Employer. ) Judge Allen Phillips
)
COMPENSATION HEARING ORDER DENYING BENEFITS
The Court held a Compensation Hearing on May 7, 2019, on Mr. Polk’s request
for medical and permanent disability benefits. For the reasons below, the Court holds Mr.
Polk did not prove entitlement to the requested benefits and denies his claim.
History of Claim
Mr. Polk claimed an injury as a result of a lift truck accident on May 22, 2017. On
June 7, Delta provided him a panel of physicians and required him to take a drug test.
During the drug test, a nurse discovered a container of “yellow liquid” in Mr.
Polk’s underwear. The nurse terminated the test, and Delta fired Mr. Polk. Delta also
denied Mr. Polk’s claim for benefits, contending his concealment of the container was an
attempt to provide a false sample and the equivalent of a positive test. Because Delta was
a member of the Tennessee Drug Free Workplace Program, it further asserted that a
positive test created a presumption that drug use was the proximate cause of the accident.
For his part, Mr. Polk admitted he concealed a container of urine in his underwear.
He offered an explanation of why he did so that the Court later found implausible and
lacking credibility. However, he also argued that if Delta had tested him immediately
after the accident, then the test would not have been an issue.
After an Expedited Hearing, the Court held Mr. Polk would likely prevail at a
hearing on the merits in rebutting Delta’s Drug Free Workplace defense. In so holding,
the Court found that administration of the test sixteen days after the accident was
untimely and that OSHA regulations require testing when an accident is recorded in the
OSHA injury log. In this case, the Court found Delta should have recorded the injury in
the log on May 22 and administered the test then. Because it did not, the test was invalid.
Delta appealed the Court’s order. The Appeals Board affirmed but found the Court
erred when it determined that the test was invalid. Instead, the Board held that the Court
had insufficient evidence to conclude Delta should have recorded the accident on May
22. However, the Board found that Mr. Polk came forward with sufficient evidence that
he would likely prevail at a hearing on the merits and remanded the case for further
proceedings.
After remand, the Court entered a Scheduling Order that set a deadline for expert
medical proof, provided dates for pre-Compensation Hearing filings, and set the
Compensation Hearing date. Mr. Polk obtained no medical evidence and did not file the
required pre-hearing statement. At the hearing, he said he still suffered pain that affected
his ability to work, but he had no health insurance to seek further treatment. On cross-
examination, he admitted Delta provided him a medical evaluation pursuant to the
Court’s Expedited Hearing Order and that the authorized physician did not recommend
further treatment.
Findings of Fact and Conclusions of Law
At a Compensation Hearing, Mr. Polk must establish his entitlement to benefits by
a preponderance of the evidence. Willis v. All Staff, 2015 TN Wrk. Comp. App. Bd.
LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-239(c)(6) (2018). As
pertinent here, he must establish his injury arose primarily out of his employment at Delta
by showing that his employment contributed more than fifty percent in causing his injury.
Tenn. Code Ann. § 50-6-102(14)(A) and (B). Mr. Polk must establish the required
contribution to a reasonable degree of medical certainty. Tenn. Code Ann. § 50-6-
102(14)(C).
Here, Mr. Polk did not introduce any medical expert opinion. Thus, he did not
establish to a reasonable degree of medical certainty that his injury arose primarily out of
his employment, and the Court must deny his claim for further benefits. Because of this
holding, the Court need not address any issues regarding the Drug Free Workplace.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Polk’s claim against Delta is dismissed with prejudice against its refiling.
Za.
4,
ENTERED May 10, 2019.
Costs of $150.00 are assessed against Delta under Tennessee Compilation Rules
and Regulations 0800-02-21-.07 (2018), to be paid to the Court Clerk within five
business days of this order becoming final.
Delta shall prepare and file a statistical data form (SD2) with the Court Clerk
within ten business days of the date of this order under Tennessee Code Annotated
section 50-6-244.
Absent an appeal, this Order shall become final in thirty days.
Court of Workers’ C pensation Claims
APPENDIX
Exhibits:
None
Technical record:
Pee Pe
Expedited Hearing Order and Exhibits
Appeals Board Opinion
Scheduling Order
Amended Scheduling Order
Pre-Compensation Hearing Order
Employer’s Index of Medical Records
Post-Discovery Dispute Certification Notice
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Compensation Hearing Order was sent to
the following recipients by the following methods of service on May 10, 2019.
Name First Class Email Service Sent To:
Mail
Ricky Polk, x Xx 513 Reid Ave.
Self-Represented Employee Brownsville, TN 38012
rickypolk@gmail.com
Hailey David, x davidh@waldrophall.com
Attorney for Employer
{ /
LLY M1 —
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
Wwc.CourtClerk@tn.gov
Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, you must:
1. Complete the enclosed form entitled: “Compensation Hearing Notice of Appeal,” and file
the form with the Clerk of the Court of Workers’ Compensation Claims within thirty
calendar days of the date the compensation hearing order was filed. When filing the
Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the filing fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of your appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar days of the filing of the
Notice of Appeal. The statement of the evidence must convey a complete and accurate
account of the hearing. The Workers’ Compensation Judge must approve the statement
of the evidence before the record is submitted to the Appeals Board. If the Appeals
Board is called upon to review testimony or other proof concerning factual matters, the
absence of a transcript or statement of the evidence can be a significant obstacle to
meaningful appellate review.
4. After the Workers’ Compensation Judge approves the record and the court clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
party has fifteen calendar days after the date of that notice to submit a brief to the
Appeals Board. See the Practices and Procedures of the Workers’ Compensation
Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann. § 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of All Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam employed by:
My employer’s address is:
My employer’s phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker’s Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe: }
10. Assets:
Automobile $ _ (FMV)
Checking/Savings Acct. $
House $ _ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082
LB-1103
COMPENSATION HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www.tn.gov/labor-wfd/wcomp.shtml
wc.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals Board.
[List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
List of Parties
Appellant (Requesting Party): At Hearing: _]EmployerL_lEmployee
Address:
Party’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing:[|_]Employer|_lEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a true and exact copy of this
Compensation Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all
parties and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee
Rules of Board of Workers’ Compensation Appeals on this the day of , 20
[Signature of appellant or attorney for appellant]
Attention: This form should only be used when filing an appeal to the Workers’ Compensation Appeals
Board. If you wish to appeal a case to the Tennessee Supreme Court, please utilize the form provided by
the Court which can be found on their website at the following address:
http://www.tncourts.gov/sites/default/files/docs/notice of appeal - civil or criminal.pdf
LB-1103 rev. 10/18 Page 2 of 2 RDA 11082