Foster, Eric v. JCS Logistics, LLC , 2019 TN WC 81 ( 2019 )

FILED
May 21, 2019
03:12 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
ERIC FOSTER, ) Docket No. 2018-08-1318
Employee, )
V. )
JCS LOGISTICS, LLC, ) State File No. 82938-2018
Employer, )
And )
TRAVELERS PROPERTY ) Judge Deana Seymour
CASUALTY CO., )
Carrier. )
EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS
The Court conducted an Expedited Hearing on May 10, 2019, on Eric Foster’s
request for medical benefits following an alleged work-related assault.’ The issue is
whether Mr. Foster is likely to establish entitlement to these benefits. For the reasons
below, the Court concludes that he is not.
History of Claim
Mr. Foster worked as a truck driver for JCS. He claimed his supervisor, Joey
Sichting, assaulted him at work on October 26, 2018, resulting in injuries to his neck,
back, and shoulder.
According to Mr. Foster, he and Mr. Sichting had a heated argument about a work
issue in Mr. Sichting’s office. Afterward, Mr. Foster went to the office of JCS’s Director
of Transportation, Cassandra Fryer. While Mr. Foster stood at Ms. Fryer’s desk, Mr.
Sichting allegedly struck his back and shoulder. Police were called to the scene.”
' The Dispute Certification Notice also listed temporary disability benefits as a disputed issue. However,
at the hearing, Mr. Foster only requested a panel of physicians and payment of his unauthorized medical
treatment.
* Both Mr. Foster and Ms. Fryer testified that they called the police.
1
The police arrived and prepared a report, which indicated that Mr. Sichting hit Mr.
Foster on his /eft shoulder three times. However, Mr. Foster’s affidavit stated that Mr.
Sichting hit him on the back with his phone. During the hearing, Mr. Foster testified Mr.
Sichting struck him three times, but he did not mention a phone.
JCS relied on the testimony of Mr. Sichting and Ms. Fryer to challenge Mr.
Foster’s version of events. Mr. Sichting indicated he simply tapped Mr. Foster on the
shoulder once and told him to “be safe.” Ms. Fryer also witnessed the exchange and saw
Mr. Sichting give Mr. Foster a “slight tap” on the shoulder.
JCS additionally relied on the affidavit testimony of Mark Laine, who witnessed
Mr. Foster unload his belongings from the truck after Mr. Foster’s termination
immediately following the alleged assault.’ Mr. Laine testified that he did not observe
Mr. Foster having any difficulty climbing in and out of the truck while unloading it or
carrying his possessions to his vehicle.
The day after the alleged assault, Mr. Foster went to the emergency room. He
complained of right shoulder and upper back pain from being hit in the back at work the
day before. He was diagnosed with a thoracic myofascial strain. However, his physical
examination revealed no swelling, and right-shoulder x-rays showed degenerative
changes but no acute findings. Mr. Foster’s medical provider did not restrict his activities
but told him to follow up with his primary care physician. Mr. Foster never pursued
additional treatment.
Findings of Fact and Conclusions of Law
At an Expedited Hearing, Mr. Foster must provide sufficient evidence from which
the Court can determine he is likely to prevail at a hearing on the merits. McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015). Specifically, resolution of the present issue turns on whether Mr. Foster
suffered a work-related injury.
Here, the parties’ versions of events differ drastically, and witness credibility plays
a critical role. When evaluating witness credibility, the trial court must consider whether
a witness is “calm or agitated, at ease or nervous, self-assured or hesitant, steady or
stammering, confident or defensive, forthcoming or deceitful, reasonable or
argumentative, honest or biased.” Kelly v. Kelly, 445 S.W.3d 685, 694-95 (Tenn. 2014).
The record reveals inconsistencies in Mr. Foster’s story. The police report said that
* Mr. Sichting testified that he terminated Mr. Foster after the exchange because Mr. Foster “flipped out”
when Mr. Sichting touched him and became hostile and aggressive.
2
Mr. Sichting struck him on his left shoulder. However, when he presented to the
emergency room the next day, the medical records stated he complained of right shoulder
pain. Physical examination of his right shoulder showed no swelling, and his x-rays
indicated no acute findings. Rather, the records indicated a thoracic strain and contained
no medical opinion on causation of that strain. Moreover, Mr. Laine’s affidavit suggested
that Mr. Foster had no problem climbing in and out of the truck while unloading it or
carrying his belongings to his vehicle immediately after the alleged assault.
Further, Mr. Foster’s own testimony varied. His affidavit stated that Mr. Sichting
struck him with a phone. However, during the hearing, he did not mention a phone.
Instead, he testified that Mr. Sichting hit him three times with his right hand.
The Court observed the witnesses’ testimony. Mr. Foster was hesitant in recalling
specific details of the October 26 events, and he appeared defensive and argumentative
during cross examination. In contrast, the Court finds that Mr. Sichting and Ms. Fryer
provided credible testimony. Mr. Sichting confidently and calmly described simply
tapping Mr. Foster on the shoulder once and telling him to “be safe.” Likewise, Ms. Fryer
appeared self-assured as she described the “slight tap” she witnessed.
In sum, the Court finds Mr. Foster not credible and holds he is not likely to prevail
at a hearing on the merits.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Foster’s request for medical benefits is denied at this time.
2. This matter is set for a telephonic Status Hearing on July 15, 2019, at 9:00
a.m. Central Time. You must call toll-free at 866-943-0014 to participate in the
hearing.
ENTERED May 21, 2019.
—_
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Judge Deana C. Seymour
Court of Workers’ Compensation Claims
APPENDIX
Technical record:
TRI. Petition for Benefit Determination
TR2. Dispute Certification Notice
TR3. Request for Expedited Hearing, with Mr. Foster’s affidavit
TR4. Employee’s Exhibit List, with attachments
TR5. Employee’s Witness List
TR6. Employer/Carrier’s Expedited Hearing Pre-Trial Brief
TR7. Employer’s Exhibit List with attachments
TR8. Employer’s Witness List
TR9. Employee’s Motions in Limine
Exhibits:
1. Petition for Benefit Determination
2. Correspondence dated June 5, 2017, regarding behavior on the job
3. Correspondence dated October 26, 2018, regarding pay change
4. Mr. Foster’s medical records (Collective)
5. Mr. Foster’s medical bills (Collective)
6. Police Report
7. Request for Expedited Hearing, along with Mr. Foster’s affidavit
8. Affidavit of Andrew Wener
9. Facebook post (ID only)
10. Two photographs of Ms. Fryer’s office (Collective)
11. Affidavit of Mark Laine
12. Separation Notice
13. Affidavit of Complaint
14. Work release note dated October 27, 2018
15. Ms. Fryer’s written statement
16. Email from Claudia Sichting to Bureau mediator Danny Brandon
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent to the following parties by these
methods on May 21, 2019.
Employer’s Attorney
Name Certified | Via Via Service sent to:
Mail Fax Email
Andrew Wener, xX awener @ wenerlawfirm.com
Employee’s Attorney
Paul Nicks, X | pnicks@travelers.com
/) {/
Z Loney MU (Lr
Penny Sicum, Court Clerk
Court oi Workers’ Compensation Claims
WC.CourtClerk @ tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
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 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 the 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. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business 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 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. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
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:
Additional Information
Type of Case [Check the most appropriate item]
L] Temporary disability benefits
L] Medical benefits for current injury
LC Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
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: L]JEmployer LJEmployee
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,
Expedited 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
, certify that | have forwarded a true and exact copy of this
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
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 Ail 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
ssl $ 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 $ permonth 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 I 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