Iboy, Olga Esperanza v. Kenten Management, LLC

FILED
Feb 15, 2018
08:51 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIM
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Olga Esperanza Iboy, ) Docket No. 2017-06-1855
Employee, )
Vv. )
Kenten Management, LLC, ) State File No. 54088-2017
Employer, )
And )
Employers Preferred Ins. Co., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER
Olga Esperanza Iboy' filed a Request for Expedited Hearing seeking a ruling on
the compensability of her claim. This Court held the hearing on February 13, 2018. The
central legal issue is whether Kenton Management, LLC is likely to prevail at trial in its
denial of Ms. Iboy’s claim based on its affirmative defense that she willfully failed to use
a safety device resulting in her work injury. For the following reasons, the Court holds
Kenten Management failed to satisfy its burden of proof regarding its defense of willful
failure to use a safety device and rejects it.’
History of Claim
Ms. Iboy worked as a laundry attendant at Kenten Management’s hotel. On June
' She testified that her full name is Olga Esperanza Iboy Barrientos, but the majority of the Court
documents simply refer to her as “Esperanza Iboy.”
* The Dispute Certification Notice lists the sole issue as compensability. The parties briefed Ms. Iboy’s
entitlement to medical and temporary disability benefits, but the Court cannot rule on uncertified issues.
See Tenn. Code Ann. § 50-6-239(b)(1) (2017) (“[O]nly issues that have been certified by a workers’
compensation mediator within a dispute certification notice may be presented to the workers’
compensation judge for adjudication.”). Ms. Iboy’s counsel additionally requested that the Court order
payment of his attorney fee under Tennessee Code Annotated section 50-6-226(d)(1)(B), but the Court
cannot reach this issue if it cannot address Ms. Iboy’s entitlement to medical and/or temporary disability
benefits.
16, 2017, she stood on a one-step stool to attempt to turn on a dryer where the on/off
button was located above her head near the top of the appliance. She lost her balance and
fell forcefully on her buttocks, injuring her back. Ms. Iboy sought emergency care,
where providers diagnosed a compression fracture of the vertebra and performed surgery.
Kenten Management offered a panel for her post-surgery care, and Ms. Iboy chose
Concentra. Kenten Management later filed a Notice of Controversy, terminating
medical benefits. The notice explained, “Your employer told you to utilize the 2 step
stool while working you [sic] chose to utilize the one step stool.”
The parties dispute the circumstances surrounding the fall. Ms. [boy testified that
the single-step stool was the only stool available immediately before the accident.
However, on previous occasions, both stools were available at times, and co-workers
used either stool. Ms. Iboy stated that a male co-worker occasionally took the two-step
stool outside of the laundry room where she worked. On the date of injury, he was not
present nor was the two-step stool. Ms. Iboy testified that her supervisor, Terrie Pattum,
was not present in the laundry room before she fell, but afterward she came into the room
when Ms. Iboy lay on the floor in pain.
Kenten Management did not offer live testimony and gave a different account of
the incident in Terrie Pattum’s declaration. She stated that on the date of injury, Ms. Iboy
began to use the one-step stool, which Ms. Iboy removed from a maintenance closet.
According to Ms. Pattum, she saw her with the one-step stool and told Ms. Iboy to use
only the two-step stool, pointing at it “under the laundry table indicating that it was the
correct stool to use.” Kenten Management offered no proof as to why a one-step stool
was safer than a two-step stool or why a two-step stool should be considered a safety
device. The only proof provided indicated Ms. Iboy fell off the stool, not that the stool
tipped over.
Significantly, Ms. Iboy speaks Spanish and used an interpreter during the hearing.
She testified that she never went to school, and she learned how to write her signature as
an adult but otherwise cannot write. Per Ms. Iboy, Ms. Pattum speaks some Spanish, and
the two also communicated via “sign language.” Ms. Iboy testified that no one at Kenten
Management ever told her she was not permitted to use the single-step stool. She denied
retrieving the single-step stool from a maintenance closet on the day she fell. She stated
that if the stool were dangerous, her employer should not have allowed it in the
workplace. Ms. Iboy further stated that Kenten Management did not discipline her after
the incident for using the single-step stool, nor was she aware of any co-workers being
disciplined for using it.‘
> The Court notes that the panel offered is rather an odd choice, given that Ms. Iboy underwent major
orthopedic surgery and the panel consisted of urgent care facilities rather than orthopedists. However, as
previously noted, medical benefits were not the subject of this hearing.
* Kenten Management additionally mentioned in its brief that Ms. Iboy allegedly wore improper footwear
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Findings of Fact and Conclusions of Law
At an expedited hearing, Ms. Iboy must provide sufficient evidence from which
the Court can determine she 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). However, since Kenten Management raised the willful refusal to use
safety equipment defense, it bears the burden of proof. Tenn. Code Ann. § 50-6-110(b).
This defense consists of four elements: (1) the employee’s actual, as opposed to
constructive, notice of the rule, (2) the employee’s understanding of the dangers involved
in violating the rule, (3) the employer’s bona fide enforcement of the rule, and (4) the
employee’s lack of a valid excuse for violating the rule. Roper v. Allegis Grp., 2017 TN.
Wrk. Comp. App. Bd. LEXIS 14, at *7 (Feb. 10, 2017), citing Mitchell v. Fayetteville
Public Utils, 368 S.W. 442, 453 (Tenn. 2012). Ms. Iboy argued that Kenten
Management satisfied none of these factors. The Court agrees.
In matters such as this, witness credibility plays an important role. Indicia of
witness credibility that trial courts consider include 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, 694-695 (Tenn. 2014). Although Ms. Iboy spoke only in
Spanish, the Court observed her facial expressions and mannerisms and finds Ms. Iboy
credible; she testified in a manner that was calm, at-ease, self-assured, steady, confident,
forthcoming, reasonable and honest.
Ms. Iboy credibly testified that no one with Kenten Management told her it
prohibited use of the one-step stool, and in fact, she and others used the two stools
interchangeably. The Court gives greater weight to her testimony over the declaration of
Ms. Pattum indicating that she gave a verbal instruction not to use the single-step stool.
The Court also notes that even if Ms. Pattum gave this instruction, the Court does not
know whether Ms. Iboy understood it, given the language barrier. Therefore, the first
factor — the employee’s actual notice of a rule — favors Ms. Iboy’s assertion that she had
no notice of a safety rule, if indeed this unwritten, undocumented “notice” could be
considered a safety rule. The Court reminds that fault and negligence have no foothold in
the realm of workers’ compensation. See Roper, at *11 (“[T]he Supreme Court in
Mitchell reinforced longstanding precedent that an employee’s negligent or reckless
actions generally are not enough to defeat a claim for workers’ compensation benefits.”)
As previously stated, Ms. Iboy testified she and others used the two stools
interchangeably. This suggests that she and her co-workers did not understand the
that somehow contributed to her fall, but during cross-examination it asked no questions about this, nor
did it raise the issue in closing. Therefore, the Court considers the argument abandoned.
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“dangers” involved in using the single-step stool, so the second factor also favors Ms.
Iboy. Kenten Management offered no evidence of “dangers” involved with a one-step
stool. Also, the Court notes that Ms. Iboy fell off the stool because she lost her balance.
Losing her balance is a danger associated with standing on any size stool.
As for the third factor, the employer’s bona fide enforcement of the rule, Ms. Iboy
testified that she received no discipline after her fall, nor was she aware of any other co-
workers being disciplined for using the single-step stool. Kenten Management conceded
that it disciplined none of its employees for using the single-step stool but asserts that this
is because this was the first time such a situation arose. This assertion is contrary to Ms.
Iboy’s testimony that others used both stools interchangeably. Further, what Kenten
Management essentially argued is that no one ever fell from using the single-step stool
until Ms. Iboy’s fall — and even then, it offered no proof of discipline of Ms. Iboy or
anyone else. Thus, this factor favors Ms. Iboy as well.
Finally, Ms. Iboy credibly testified that no other stool was available for
performing her job duties on the date of injury, which strikes the Court as a valid excuse
for violating the “rule” — although the Court is unconvinced this admonition rises to the
level of a “rule.”
Therefore, the Court holds that Kenten Management is unlikely to prevail at a
hearing on the merits of its affirmative defense. Kenten Management is required by
Tennessee Code Annotated sections 50-6-204(a)(1)(A) and 50-6-207 to provide certain
benefits.
This matter is set for a Scheduling Hearing on April 2, 2018, at 9:30 a.m.
Central Time. You must call 615-532-9552 or toll-free at 866-943-0025 to participate in
the hearing. Failure to call may result in a determination of the issues without your
participation.
ENTERED February 15, 2018.
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Olga Esperanza Iboy’s Affidavit
Concentra records
Causation letter
Wage statement
Choice of Physician form
Notice of Controversy
Affidavit (declaration) of Terrie Pattum
Photos of the workplace
Ms. Iboy’s Answers to Interrogatories
eae: >
Technical Record:
1. Petition for Benefit Determination
Employer’s Pre-Mediation Position Statement
Employee’s Pre-Mediation Position Statement
Dispute Certification Notice
Request for Expedited Hearing
Brief in Response of Employee’s Request for Expedited Hearing (Exhibit B not
attached; not filed)
Witness List
8. Ms. Iboy’s Pre-Hearing Statement
AnwRWN
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent to these recipients by the following
methods of service on February 15, 2018.
Name Certified | Fax | Regular | Email | Sent to
Mail mail
Michael Fisher, xX Mfisher@ddzlaw.com
Employee’s
attorney
Troy Hart, Andrew xX wth@mijs.com;
Womack, mawomack@mijs.com
Employer’s
attorneys
Ja him
Pénny Shryni, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov