Garrett, Jody v. Precision Piping and Plumbing

FILED
Jun 04, 2019
08:27 AM(CT)
TENNESSEE COURT OF
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
JODY GARRETT, ) Docket Number: 2018-02-0076
Employee, )
Vv. )
PRECISION PIPING AND ) State File Number: 9524-2018
PLUMBING, )
Employer, )
And )
ACCIDENT FUND INSURANCE OF ) Judge Brian K. Addington
AMERICA, )
Carrier. )
EXPEDITED HEARING ORDER
Jody Garrett requested that Precision Plumbing pay for medical and temporary
disability benefits for a thumb injury that he claimed arose primarily out of and in the
course and scope of his employment. Precision Plumbing denied the accident occurred
while Mr. Garrett was at work. The Court held an Expedited Hearing on May 31, 2019,
and concludes Mr. Garrett failed to establish he would likely prevail at a hearing on the
merits regarding his request for medical and temporary disability benefits.
Claim History
Mr. Garrett worked for Precision as a plumber and received a salary as opposed to
hourly pay. He primarily worked under Jeff Underwood, supervisor of Precision’s
remodeling and service division. Mr. Underwood had no ownership interest in Precision.
As head of the remodeling and service division, Mr. Underwood kept Precision’s
supplies at his residence. On occasion, Mr. Garrett worked at Mr. Underwood’s
residence cleaning the work van and sorting supplies. In addition to the work for
Precision, he also performed occasional odd jobs at Mr. Underwood’s home, including
helping to install siding. It was this type of odd job that led to Mr. Garrett’s injury.
WORKERS' COMPENSATION
On October 10, 2017, Mr. Garrett finished his plumbing jobs early. He rode back
to Mr. Underwood’s house.’ Mr. Underwood was splitting firewood for a church
festival, and he gave Mr. Garrett the option to either get a ride home or stay and help split
wood. Mr. Garrett chose to stay and help. He partially amputated his thumb while
splitting the wood. Mr. Garrett received emergency treatment at two hospitals and was
released later that night. The following day, and for a short time afterward, he continued
working for Precision.
In November, Precision terminated Mr. Garrett after determining he used the
company’s debit card without permission and incurred excessive absences. It also
received customer complaints concerning alcohol on his breath. Although Mr. Garrett
admitted using the debit card without permission, he testified he repaid the money the
next day. He denied the other allegations and argued that Precision terminated him
because he asked Precision to pay his medical bills and provide temporary disability
benefits.
Precision denied compensability of his injury. It argued that Mr. Garrett’s injury
did not arise primarily out of or in the course and scope of his employment because he
was not at work at the time of the accident and the log-splitting did not benefit Precision.
Therefore, he is not entitled to workers’ compensation benefits. Additionally, even if the
injury were work-related, Mr. Garrett’s termination for cause prohibited recovery of
temporary disability benefits.
Mr. Garrett countered that the injury arose out of his work for Precision. He
asserted that because he completed his plumbing jobs early, he was required to help Mr.
Underwood, his supervisor, cut and split firewood as part of his job duties.
Finding of Facts
Precision denied that Mr. Garrett’s injury arose primarily out of and in the course
and scope of his employment. Thus, it argued the claim is not compensable. To recover
benefits at this expedited hearing, Mr. Garrett must show a likelihood of proving
compensability of his claim at a hearing on the merits. Tenn. Code Ann. § 50-6-
239(d)(1) (2018).
To be compensable under the workers’ compensation statutes, an injury must arise
primarily out of and in the course and scope of the employment. Tenn. Code Ann. § 50-
6-102(14). An injury occurs in the course and scope of employment if it takes place
while an employee is performing a duty he was hired to perform and focuses on the time,
place, and circumstances of the injury. Jacobs v. Bridgestone Americas Tire, 2018 TN
Wrk. Comp. App. Bd. LEXIS 4, at *9-10 (Feb. 7, 2018).
' Mr. Garrett had no driver’s license, so Precision hired a driver to take him to and from job sites.
2
Precision hired Mr. Garrett as a plumber. Therefore, any activity not directly or
indirectly related to plumbing, including splitting logs for his supervisor, fell outside the
scope of his work. Also, his injury occurred after the work day, when Mr. Garrett could
have gone home but volunteered to help Mr. Underwood prepare for a church event.
The Court finds no casual connection between Mr. Garrett’s job as a plumber and
the work he performed chopping wood as an act of kindness for Mr. Underwood. The
work did not benefit Precision. Therefore, the Court holds he is not likely to prevail at a
hearing on the merits in proving compensability of his injury.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Garrett’s requested relief is denied at this time.
2. This case is set for a Status Hearing on September 27, 2019 at 10:00 a.m. Eastern
Time. The parties must call 855-543-5044 toll-free to participate in the hearing.
Failure to appear by telephone may result in a determination of the issues without
your further participation.
ENTERED JUNE 4, 2019.
/S/ Brian K. Addington
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Jody Garrett’s Affidavit
2. Pay Stubs from January to November 2017
3. Collective Exhibit Medical bills (for Identification Purposes)
4. Medical Records of Sycamore Shoals
5. Medical Records of Johnson City Medical Center
6. Jody Garrett’s Deposition
7. Photo
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Agreed Order of Continuance
5. Employer’s Motion to Continue Expedited Hearing
6. Order Continuing Expedited Hearing and Setting Hearing
7. Employee’s Witness and Exhibit Lists
8. Employee’s Pre-Hearing Brief
9. Employer’s Witness List
CERTIFICATE OF SERVICE
I certify that a correct copy of this Order was sent to the recipients below as
indicated on June 4, 2019
Name Certified | First | Email Service Sent to:
Mail Class
Mail
Todd East, todd@toddeast.com
Employee’s Attorney X | jennifer@toddeast.com
Cole Stinson, cole.stinson@accidentfund.com
Employer’s Attorney X | christine.spear@accidentfund.com
Linney Ma as
PENNY SHUM, COURT CLERK
we.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