Priddy, Steven v. Barker Brothers Waste, Inc. , 2018 TN WC 193 ( 2018 )

FILED
Nov 30, 2018
12:30 PM(CT)
TENNESSEE COURT OF
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
STEVEN PRIDDY, ) Docket No. 2018-07-0084
Employee, )
v. )
BARKER BROTHERS WASTE, INC., _) State File No. 80495-2017
Employer, )
and )
INDEMNITY INSURANCE COMPANY ) Judge Amber E. Luttrell
OF NORTH AMERICA, )
Carrier. )
EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS
The Court held an Expedited Hearing on November 8, 2018, on Mr. Priddy’s
request for medical and temporary disability benefits. The legal issue is whether Mr.
Priddy is likely to prevail at a hearing on the merits in establishing that he sustained a
knee injury arising primarily out of and in the course and scope of his employment. For
the following reasons, the Court holds Mr. Priddy did not meet his burden and denies his
request.
History of Claim!
Mr. Priddy drove a garbage truck for Barker Brothers Waste, Inc. (BBW). He
drove a “side loader,” which picked up trash from the right side of the truck using a
mechanical arm. Mr. Priddy alleged that while working on October 13, 2017, he injured
his left knee. BBW disputed Mr. Priddy’s alleged injury date and contended he injured
his knee at home the day before.
The parties disputed the details surrounding the alleged injury. However, it was
undisputed that Mr. Priddy suffers from gout, a preexisting condition, which regularly
“flares up” in different joints in his body, including his knees. The parties introduced
medical records before October 2017, documenting Mr. Priddy’s gout treatment in
' The hearing testimony and exhibits established the facts set forth in the History of Claim section.
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WORKERS' COMPENSATION
various joints. The records specifically indicated Mr. Priddy was off work and sought
treatment for gout in his left leg and knee on August 22, 2017, two months before his
alleged injury. The gout caused pain, swelling, and difficulty walking and weight-
bearing, and Mr. Priddy’s physician kept him off work following that visit due to his
symptoms.
At the hearing, Mr. Priddy provided the following details regarding his alleged
injury. He reported to work around six o’clock a.m. on Friday, October 13, spoke to his
supervisor, Charlie Hayes, and started his route. He acknowledged he was limping that
morning but stated it was due to a gout flare up in his right foot. He denied any gout
symptoms or problems in his left knee in the days leading up to his mjury date. At nine
o’clock, he serviced a home on a dead-end street in Milan, Tennessee. When he extended
the mechanical arm on his truck to grab a customer’s garbage container, the arm knocked
it over instead. Mr. Priddy got out of his truck, picked up the trash and was lifting the
heavy container off the ground when it fell back on him, causing his left knee to
“hyperextend.” He heard a “pop” and “crunch” and fell to the ground. Mr. Priddy stated
he got up and sat on the bumper of his truck. He then climbed back in the truck and
finished his route for the day.
Mr. Priddy acknowledged BBW’s policy required him to immediately report work
injuries to Mr. Hayes. However, he stated he did not do so because he thought his knee
pain might be his gout flaring up. On his return trip to the shop, Mr. Priddy called his
wife to pick him up because he was unable to weight-bear on his left knee.* He then
called Jennifer Pratt, the scale operator, once he reached the shop to find someone to help
him get out of his truck and into his wife’s van.
Mr. Priddy initially testified he sought treatment over the weekend with his family
physician, Dr. Michael Bryant, who instructed him to report his injury to his employer
before treating. Mr. Priddy did not introduce any record from his visit that weekend and
later testified that he did not seek any treatment until Monday, October 16. On Monday,
Mr. Priddy and his wife drove to the shop, reported an injury to Mr. Hayes, and prepared
an accident statement. Mr. Priddy’s description of the accident in his statement varied
somewhat from his testimony. In his statement, Mr. Priddy did not mention the heavy
container falling back on him causing his knee to hyperextend and him to fall. Rather, he
stated, “I got out to pick up the spilled trash, and when I stepped into the yard my knee
was forced backwards. It was sunny and the ground not soft.” (Ex. 4.) In his affidavit,
Mr. Priddy’s account varied again stating, “I rocked the barrel and due to its heavy
weight it came back on me and while trying to control it, my knee buckled.” (Ex. 7.) He
explained that his attorney drafted the affidavit but acknowledged that he reviewed and
signed it.
* Mr. Priddy referred to BBW’s office location as “the shop.”
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BBW did not offer Mr. Priddy a panel, so he sought treatment on his own with Dr.
Bryant and then with Dr. Eugene Gulish, an orthopedic specialist. According to Dr.
Bryant’s October 16 record, Mr. Priddy gave a history of joint pain in the “left knee after
hyperextension of the knee while at work last Thursday, pain with increasing swelling
occurred on Friday of last week.” Dr. Bryant further noted, “Onset followed recent
trauma (Thursday 10/12/17) he had left hyperextension injury, it did not swell
immediately and he was able to weight-bear. On Friday, the pain progressively increased
with associated swelling and pain to the point he was unable to weight-bear by end of the
day.” Dr. Bryant diagnosed acute left knee pain, ordered an MRI, and referred Mr. Priddy
to an orthopedist. At the hearing, Mr. Priddy denied telling the doctor that he was injured
on October 12.
The next day, Mr. Priddy saw Dr. Gulish, who noted Mr. Priddy “states he was
unloading his truck when he hyperextended left knee joint-had immediate severe pain and
swelling.” In a subsequent record, Dr. Gulish documented Mr. Priddy’s reported injury
date as October 13. He eventually performed arthroscopic surgery and found significant
gouty arthritis in the knee joint as well as a meniscus tear. Dr. Gulish provided follow-up
care for swelling and weakness through May 2018. He commented that because of Mr.
Priddy’s gout, he would need a longer recovery time. Mr. Priddy testified he has not
completed therapy because his insurance was cancelled.
In response to a causation letter from Mr. Priddy’s counsel, Dr. Gulish stated, “On
the MRI, Mister Priddy was found to have a torn medial meniscus. In my opinion this
was caused by his work related injury. The trauma could have aggravated the gouty
arthritis which of course preexisted the injury.”
On cross examination, Mr. Priddy confirmed the accident happened at nine a.m.
because he recalled arriving at the same house at that time each day. Counsel presented
Mr. Priddy with his “Operator Activity Sheet” from October 13, which indicated his
truck was on “downtime,” meaning it was not operational from “7:55 a.m. to 8:55 a.m.”
Mr. Priddy did not explain the time discrepancy. (Ex. 6.) Mr. Priddy also denied any prior
work injury to his left knee. When presented with a three-page BBW accident report
documenting a similar reported left knee injury the year before on August 5, 2016, Mr.
Priddy denied any recollection of the event. (Ex. 8.) In the 2016 report, Mr. Priddy
reported, “I was servicing a cart and when I stepped down off the step I stepped on the
edge of the pavement, and it snapped my knee back and I fell.”
Mrs. Priddy also testified at the hearing. She testified consistently with her
husband regarding picking him up from work because he was unable to walk and driving
him to the shop on Monday to report an injury. Mrs. Priddy stated she did not take Mr.
Priddy to the hospital after picking him up because “he had so many problems with gout
and we did not know if it was a flare up or not.” She stated she did not recall Mr. Priddy
experiencing left knee symptoms before October 13.
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BBW offered the testimony of Jennifer Pratt and Charlie Hayes to rebut Mr.
Priddy’s testimony. Ms. Pratt was the gate attendant/scale operator for BBW. Among
other duties, she collected the drivers’ daily activity logs and prepared end of the day
reports to close the routes. She testified that on October 13, at 5:46 p.m., Mr. Priddy
called her looking for the mechanic to help him out of his truck because his knee was
hurting, swollen, and he could not walk. He told her he had hyperextended his knee at
home the day before. Ms. Pratt stated Mr. Priddy did not tell her about any work injury
on his route that day.
Mr. Hayes testified that on the morning of the alleged injury he noticed Mr. Priddy
limping. He knew of Mr. Priddy’s gout and asked him if it was flaring up. Mr. Priddy
responded that he hurt his knee the day before. When Mr. Hayes asked him if he needed
to fill out an accident report, Mr. Priddy said no, he hurt it at home and it was his gout.
Mr. Hayes confirmed that he could still drive his truck, and Mr. Priddy started his route.
At the end of the work day, Mr. Hayes received a phone call from Ms. Pratt. She
informed him that Mr. Priddy needed help getting out of his truck due to knee pain and
could not fill out his daily paperwork. Mr. Hayes called Mr. Priddy that evening.
According to Mr. Hayes, he again said he had hurt his knee the night before and he may
have re-injured it servicing a customer. He also said it could be his gout. Mr. Hayes
encouraged Mr. Priddy to see a doctor over the weekend and he agreed.
The next day, Mr. Hayes texted Mr. Priddy to see if he saw a doctor and if he
would be able to work on Monday. Mr. Priddy responded, “They couldn’t do anything
for me they told me to keep taking my medicine and see my rumortolagist wensday my
gout is deteariating my joints.” (Ex. 5.) Mr. Priddy testified that he was not referring to
his knee in the text. He stated he was experiencing a gout flare up in his right foot at that
time and was referring to his foot. He acknowledged that he had not previously discussed
his foot with Mr. Hayes and did not know why he would reach out to him over the
weekend to ask about it. Mr. Hayes adamantly disputed Mr. Priddy’s explanation and
stated he was following up on the knee.
Mr. Hayes testified he next spoke to Mr. Priddy on October 16, when he and his
wife came to the shop and reported a work injury on October 13. As Mr. Priddy
completed the accident report, Mr. Hayes noted he indicated there were no witnesses and
he could not remember many details.
Mr. Priddy denied telling Mr. Hayes or Ms. Pratt that he hurt his left knee on
October 12 or that he was experiencing any gout symptoms in his left knee the morning
of October 13.
Findings of Fact and Conclusions of Law
Mr. Priddy need not prove every element of his claim by a preponderance of the
evidence in order to obtain relief at an expedited hearing. Instead, he must present
sufficient evidence that he is likely to prevail at a hearing on the merits of his claim.
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*7-8, 9 (Mar. 27, 2015).
Analysis
To be compensable, Mr. Priddy must show his alleged injury arose primarily out
of and in the course and scope of his employment and was caused by an incident, or
specific set of incidents, identifiable by time and place of occurrence. Further, he must
show, “to a reasonable degree of medical certainty that [his alleged work imjury]
contributed more than fifty percent (50%) in causing the . . . disablement or need for
medical treatment, considering all causes.” Tenn. Code Ann. § 50-6-102(14) (2016).
The preliminary question the Court must address is whether Mr. Priddy presented
sufficient evidence to establish a specific incident to his left knee, identifiable by time
and place of occurrence, on October 13, 2017. For the reasons below, the Court cannot
find that he did.
First, the Court finds Mr. Priddy gave inconsistent accounts of his injury in his
testimony, his accident report statement, and his affidavit. He testified that as he picked
the heavy container off the ground, it fell back on him, causing his left knee to
“hyperextend” and he heard a “pop and crunch” and fell to the ground. However, he
indicated in his accident statement that when he got out [of the truck] to pick up spilled
trash, he stepped into the yard and his knee was forced backward. There is no mention of
a heavy garbage container falling back on him, causing his knee to bend back or him
falling to the ground. Then in his sworn affidavit, he indicated he “rocked the barrel and
due to its heavy weight it came back on me and while trying to control it, my knee
buckled.” Mr. Priddy attempted to explain the discrepancy in the affidavit by stating his
attorney drafted it, but he admitted he signed it swearing to its accuracy.
Secondly, the Court finds both Mr. Hayes and Ms. Pratt credibly testified that Mr.
Priddy told them he injured his knee the day before (October 12). The Court finds Mr.
Hayes’ testimony particularly compelling because he observed Mr. Priddy limping when
he arrived to work on October 13 and they discussed his knee. On direct examination,
Mr. Priddy did not disclose that he was limping that morning but later admitted it on
cross-examination and attributed it to his right foot. Mr. Hayes testified that Mr. Priddy
told him that morning that he hurt his left knee the day before. Mr. Hayes then asked if he
needed to prepare an accident report, but Mr. Priddy said no, he hurt it at home and it was
his gout. When Mr. Hayes called him that evening, Mr. Priddy again told him he hurt his
knee the day before but may have re-injured it servicing a customer or it could be his
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gout. They discussed Mr. Priddy seeing a doctor over the weekend.
The texts sent the next day support Mr. Hayes’ version of the conversations. Mr.
Hayes asked Mr. Priddy what the doctor said and he responded that they could not do
anything for him, told him to keep taking his medicine and see his rheumatologist
because his gout was deteriorating his joints. Mr. Priddy attempted to explain that he was
referring to his right foot and not his left knee in the text. The Court finds this explanation
unconvincing since Mr. Priddy acknowledged he never discussed his foot with Mr.
Hayes. The Court also notes that Mr. Priddy gave conflicting testimony regarding
whether he even saw a doctor that weekend. At first, he testified he saw Dr. Bryant that
weekend who told him to report a work injury. Later, he testified that he first sought
treatment on Monday.
Next, Mr. Priddy’s histories to his doctors immediately following the alleged
injury date are not consistent with his testimony. Dr. Bryant’s October 16 record stated,
“Onset followed recent trauma (Thursday 10/12/17) he had left hyperextension injury, it
did not swell immediately and he was able to weight-bear. On Friday, the pain
progressively increased with associated swelling and pain to the point he was unable to
weight-bear by end of the day.” Even if the Court accepted Mr. Priddy’s testimony that
Dr. Bryant recorded an incorrect date of injury, it still would not explain the
inconsistency between Dr. Bryant’s detailed narrative history and his testimony regarding
how the injury occurred. The Court finds Dr. Bryant’s record further supports Mr. Hayes’
and Ms. Pratt’s testimony.
The next day, Mr. Priddy saw Dr. Gulish who noted Mr. Priddy hyperextended his
knee while unloading a truck. This history is also inconsistent with Mr. Priddy’s
testimony regarding his October 13 incident.
Finally, the Court finds it notable that only two months before Mr. Priddy’s
alleged injury he sought treatment for gout in his left leg and knee in August 2017 for
very similar symptoms of pain, swelling, and trouble walking. According to the record,
Mr. Priddy’s symptoms were significant enough that he was off work at the time of the
visit and his doctor kept him off work for at least two more days. Mr. Priddy did not
mention this treatment in his testimony other than to admit he had previously sought
treatment for gout in various joints and it does not appear he mentioned this to Dr.
Gulish. Further, the Court notes that Mr. Priddy denied any prior injuries to his left knee,
yet he reported to BWW a similar left knee injury just one year before.
Based on the foregoing and absent any persuasive proof to reconcile the
inconsistencies in this case, the Court holds Mr. Priddy did not provide sufficient
evidence that he would likely prevail at a hearing on the merits regarding the occurrence
of a specific incident to his left knee on October 13, 2017. Accordingly, his request for
benefits is denied.
1.
IT IS, THEREFORE, ORDERED as follows:
Mr. Priddy’s request for medical and temporary disability benefits is denied.
2. This matter is set for a telephonic Status Hearing on Tuesday, December 18,
2018, at 9:00 a.m. Central Time. You must call toll-free at 855-543-5039 to
participate in the hearing.
ENTERED this the “22 day of Novémber, *Y
hoch
J = Amber E. broil
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
le
So Ge SAGs ME
Wage Statement
Notice of Denial
Medical Records-Employer’s Amended Table of Contents
Employee Statement
Text messages
Republic Services Operator Activity Sheet
Mr. Priddy’s affidavit
August 5, 2016 injury report-(3 pages)
Charlie Hayes’s timeline notes
10. Jennifer Pratt’s statement
11. Driver Check-in form
Technical record:
a Be
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Employer’s Response in Opposition to Expedited Hearing Request
Employer’s Pre-Hearing Statement
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on this the day of November, 2018.
Name Via Email Service sent to:
Jeffrey P. Boyd, Esq., x jboyd@borenandboyd.com
Attorney for Employee dmyles@borenandboyd.com
Steve Snyder, Esq., xX steve.snyder@mgclaw.com
R. Scott Vincent, Esq., scott. vincent@mgclaw.com
Attorneys for Employer
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims