Erwin, Joe v. BT REDI MIX, INC.

FILED
Nov 17, 2020
01:48 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
JOE ERWIN, ) Docket No. 2018-07-0065
Employee, )
v. )
BT REDI MIX, INC., ) State File No. 7429-2018
Employer, )
And )
ERIE INS. CO., ) Judge Allen Phillips
Carrier. )
COMPENSATION ORDER DENYING BENEFITS
This case came before the Court for a Compensation Hearing on October 21, 2020.
Mr. Erwin requested benefits for an injury to his right eye. BT Redi-Mix contended the
injury did not arise out of his employment. The Court agrees with BT and denies his claim.
History of Claim
Mr. Erwin’s injury is a detached retina in his right eye, the presence of which is
undisputed; however, its relation to Mr. Erwin’s employment at BT is highly disputed.
Specifically, the parties contest whether the detachment occurred when Mr. Erwin was
struck by a co-worker during an altercation.
The Court first considered the dispute at an Expedited Hearing. Evidence produced
there provides a contextual background.
Namely, Mr. Erwin, a former cement truck driver for BT, then attributed his
detached retina to an incident on June 7, 2017, when another driver, Ray Boyd, punched
him directly in the right eye. He said his eye turned “black, blue, and bloody,” though he
later said he did not “look in the mirror.” Nevertheless, he said by the next day he “couldn’t
see” out of the eye. Conversely, BT offered the testimony of Mr. Erwin’s former
supervisor, David Lovelace, who was “100% certain” he saw Mr. Boyd slap Mr. Erwin’s
1
left cheek, leaving a red mark. BT also offered the signed declaration of co-employee
Brando Shaw, who saw Mr. Boyd strike Mr. Erwin’s left cheek with a “right-handed
smack.”
Medical records revealed Mr. Erwin’s first evaluation did not occur until November
13, when he saw Dr. Lewis Kizer. He told Dr. Kizer that his right eye “went black” in
March after getting cement in it. He also said he “was hit in [the] same eye by a guy with
the palm of his hand” but did not say when. Dr. Kizer diagnosed the detached retina and
referred him to Dr. Sunny Khamapirad, a retina specialist.1 On November 22, Mr. Erwin
told Dr. Sunny that he was “hit with powdered cement in May 2017” and then was
“punched” in the eye, presumably in May as well.2 Then, BT provided Mr. Erwin a panel
of ophthalmologists from which he chose Dr. Adam Luka, who on March 30, 2018, said
the retinal detachment was “presumably secondary” to trauma at work and of “8 months
duration.”
The Court ruled against Mr. Erwin at the Expedited Hearing, finding his credibility
suspect. Specifically, the Court found Mr. Erwin testified his co-employee struck him
directly in the right eye, while two eyewitnesses swore the co-employee slapped him on
the left cheek. Mr. Erwin claimed the appearance of a black, blue and bloody eye but then
said, “somewhat incredulously, that he ‘did not look in the mirror.’” Mr. Erwin also said
he “loses track of years,” a statement that appeared both “flippant and incredible,” given
that the question centered on when his blindness began.
Further, the Court found that, “Mr. Erwin’s problem [was] not that he is a poor
historian” but, instead his questionable histories prevented the Court from finding a causal
connection between his injury and his work. Thus, the Court held Mr. Erwin was unlikely
to prevail at a hearing on the merits and denied his claim.
After engaging in discovery and taking medical proof, the parties proceeded to the
Compensation Hearing, where Mr. Erwin and several other witnesses testified
Mr. Erwin’s wife testified she recalled her husband getting cement in his eye but,
rather than losing his vision then like he told Dr. Kizer, she said it improved with no
problems. Then, on the date of the altercation, she observed Mr. Erwin’s right eye was
“black clear down past his nose,” swollen, and looked like it was bleeding. She said it was
“easily visible” and “lasted for about two weeks.” She urged him to see a physician.
Roy Alexander, a former driver at BT, testified the altercation between Mr. Erwin
and Mr. Boyd occurred after Mr. Erwin asked BT for a pay raise for the drivers without
1
The parties and other physicians referred to Dr. Khamapirad as “Dr. Sunny,” and the Court will do the
same.
2
Both parties argued Mr. Erwin provided a history to Dr. Sunny of being struck in the right eye in May;
the Court found the handwritten note difficult to read but adopts the parties’ interpretation of it.
2
their consent. By his direct observation, he saw Mr. Boyd “slap” Mr. Erwin, leaving a
handprint on his face, first saying the right side but then clarifying it was on the left side
because Mr. Boyd led with his right hand while facing Mr. Erwin.
Chris Maness, who still drives for BT, saw Mr. Boyd hit Mr. Erwin, striking him
with such force that his “head went back.” But he did not remember which side of Mr.
Erwin’s face Mr. Boyd struck and specifically added that he was not “trying to defend or
hurt [Mr. Erwin] in any way.” Another driver, Tony Garmin, did not see the altercation but
noted the dispute over the pay raise led to it and that he did not ask Mr. Erwin to ask for
the raise.
Mr. Lovelace again testified. He said Mr. Erwin had an out-of-state commercial
driver’s license when BT hired him, and that Mr. Erwin told him then that he could not
pass an eye examination to obtain a Tennessee license. He also recalled when Mr. Erwin
got cement in his eye but said he did not complain of losing vision at that time.
Regarding the altercation, Mr. Lovelace said Mr. Erwin first argued with Brando
Shaw regarding the pay raise request; Mr. Lovelace “broke up” that argument. Mr.
Lovelace said Mr. Erwin then walked away, and Mr. Boyd approached and “came around”
to face him. Mr. Lovelace was “100% positive” that Mr. Boyd then slapped Mr. Erwin’s
left cheek with his right hand, asserting on cross-examination that it was not merely his
opinion but “what I saw.” Further, just as he testified at the Expedited Hearing, he again
said he saw a red mark on Mr. Erwin’s left cheek. Mr. Lovelace also testified Mr. Erwin
did not tell him that he lost his vision until November, and but then he attributed it to getting
cement in his eye.
Brando Shaw agreed he argued with Mr. Erwin over the pay raise request, asserting
that he never asked Mr. Erwin to ask for it. He said that when Mr. Erwin left the office
after asking for the raise, Mr. Erwin was “cussing and hollering” as if he were “drunk.”
Mr. Erwin commenced the argument with him, and Mr. Lovelace separated them. Mr.
Shaw then saw Mr. Erwin walk behind Mr. Boyd, continuing to loudly curse. At that point,
Mr. Boyd turned to face Mr. Erwin and “smacked” him on the left cheek with his right
hand. He said Mr. Boyd did not strike Mr. Erwin from behind.
For his part, Mr. Erwin testified that he “probably completed” the tenth grade and
that he worked at BT on different occasions, the last time beginning in 2015 or 2016, or
“something like that.” He related that he got cement in his right eye in March 2017 but that,
after washing it out, had no further problems. He also said he had gotten smoke in his left
eye in March, and it took him “six weeks to get the smoke out.”
Mr. Erwin confirmed that he first argued with Mr. Shaw, admitting he threatened to
“break him in half.” He also said the disputes with his fellow drivers stemmed from his
asking for a pay raise. When confronted with Mr. Garmin’s testimony that he did not ask
3
Mr. Erwin to request a raise, Mr. Erwin said he “wasn’t really listening” to Mr. Garmin’s
trial testimony, but then tried to clarify by saying, “I probably heard him say something
like that.”
As to the altercation at issue, Mr. Erwin could not remember the date. However, he
and his attorney demonstrated how they contend Mr. Boyd struck Mr. Erwin. Specifically,
counsel played the role of Mr. Boyd by approaching Mr. Erwin from behind and to his
right. He then demonstrated a motion of swinging his hand around Mr. Erwin’s right
shoulder or arm and striking his right eye. Mr. Erwin said he never saw Mr. Boyd “come
at him” and described that his head “went back and to the left” after being hit. He said Mr.
Boyd struck him with either his fist or his palm. On cross-examination, Mr. Erwin
contended that he had never said he was punched, but only said he was “hit.” He maintained
that he had no loss of vision until after Mr. Boyd struck him.
When confronted with his Expedited Hearing testimony that his eye turned black,
blue and bloody, Mr. Erwin again testified that he “never looked at” his right eye after the
incident, saying he “did not want to.” However, he also said that he saw his eye was “red”
or “bloodshot,” conceding that he might have “glanced at it one time.” Also, he said he
looked in the mirror when shaving.
For medical proof, Mr. Erwin offered the testimony of ophthalmologist Dr. James
Freeman, who recorded a history that Mr. Erwin was hit in the right eye with a fist “around
July of 2017” and lost vision afterward. Based on that history, Dr. Freeman said the blow
to Mr. Erwin’s eye was “more likely than not the injury that precipitated the [detachment].”
Conversely, BT offered the testimony of ophthalmologist Dr. David Harris, who did
not believe that a slap to the left cheek would cause a detached retina. Further, because Mr.
Erwin had preexisting degenerative conditions in both eyes, Dr. Harris stated to a
reasonable degree of medical certainty that the detachment was unrelated to any blow
sustained by Mr. Erwin.
Based on this evidence, Mr. Erwin argued that he was “very confident” that he lost
his vision after he was struck and that the “uncontroverted testimony” was that he lost
vision after he was struck. He called himself a “horrible historian,” but contended that
medical records are not “fool-proof.” Nevertheless, he contended that Dr. Freeman’s
opinion was “determinative” as to causation. Finally, he considered Mr. Alexander, the
former BT driver, most credible because he no longer works there, whereas the other
witnesses do and therefore have incentive to support BT’s position. BT maintained Mr.
Erwin did not establish a compensable injury.
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Findings of Fact and Conclusions of Law
At a Compensation Hearing, Mr. Erwin must establish all elements of his claim by
a preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2019).
The dispositive issue remains whether Mr. Erwin’s injury arose primarily out of his
employment at BT. See generally Tenn. Code Ann. § 50-6-114. As at the previous hearing,
the case still turns on credibility. On that point, the Court finds Mr. Erwin’s claim is
plagued by the same ills as at his Expedited Hearing. Namely, his questionable credibility
and inconsistent histories prevent a finding that his detached retina arose primarily out of
his employment.
First, the Court finds Mr. Erwin’s credibility was suspect from the outset of the
hearing. He said he “probably completed” the tenth grade and that he began his last period
of employment stint at BT in 2015 or 2016, or “something like that.” He could not recall
the date of the incident, although he claimed it blinded his right eye.
Second, his description of the altercation conflicts with the eyewitnesses’
description. He and counsel demonstrated a blow from behind, but Mr. Alexander, Mr.
Lovelace, and Mr. Shaw saw a blow from the front. They also described a “slap” to the left
cheek, not a punch in the right eye. Mr. Erwin himself equivocated on whether he was
punched, testifying that he “never” said he was punched but rather “hit,” a statement at
odds with his previous testimony and histories to the physicians.
Third, Mr. Erwin’s assertion he looked at his eye only once after being struck is too
unbelievable to ascribe it any credibility. Notably, he admitted to looking in the mirror
while shaving. Further, even if he looked at his eye only once, he said it looked red or
bloodshot, not black, blue or bloody, contradicting his testimony at the Expedited Hearing.
This also flies in the face of his wife allegedly seeing a massive black eye extending down
the right side of his face.
Finally, the Court again considers Mr. Erwin’s inconsistent medical histories. He
first told Dr. Kizer that his vision went black in March after getting cement in it. He then
told Dr. Sunny that he got cement in his eye in May and was hit then, not in June. The
inconsistencies continued with what he told Dr. Freeman, his own evaluating physician,
when he said he was hit in the right eye with a fist “around July.” His testimony at the
Compensation Hearing was that he was not sure if he was hit with a fist or if he was even
punched.
Taken in its totality, the Court finds the evidence preponderates against Mr. Erwin.
His description of the altercation was contrary to the eyewitnesses, his histories to the
physicians were inconsistent, and his testimony that he did not look at his eye were
5
unbelievable. Thus, the Court cannot credit Mr. Erwin’s testimony and denies his request
for benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Erwin’s claim is denied, and the case dismissed with prejudice.
2. BT shall pay $150 costs to the Court Clerk within five business days under
Tennessee Compilation Rules and Regulations 0800-02-21-.06 (August, 2019).
3. BT shall prepare and submit to the Court Clerk a Statistical Data Form (SD2) within
ten business days of this order becoming final.
4. Unless appealed, this order shall become final thirty days after issuance.
ENTERED November 17, 2020.
______________________________________
JUDGE ALLEN PHILLIPS
Court of Workers’ Compensation Claims
APPENDIX
Technical record:
1. Expedited Hearing Order with attached technical record
2. Scheduling Order
3. Post-Discovery DCN
4. Joint Pre-Compensation Hearing Statement
5. Employer’s Trial Brief
6. Order of Continuance
7. Motion to Wear Face Shields
8. Order Allowing Face Shields
Exhibits:
1. Collective Medical records of Drs. Kizer, Khamapirad, Luka and David Harris
IME
2. First Report of Work Injury
3. Panel of Physicians
4. Dr. David Harris Deposition with complete exhibits filed by employer on July 29,
2020
5. Dr. James Freeman Deposition
6
CERTIFICATE OF SERVICE
I certify that a copy of this Compensation Order was sent as indicated on November
17, 2020.
Name Via Via Email Service Sent To:
Mail
Charles L. Holliday, X chuckh@garretylaw.com
Employee’s Attorney masher@garretylaw.com
Seth Granda and Catherine Dugan, X seth@petersonwhite.com
Employer’s Attorneys cate@petersonwhite.com
______________________________________
Penny Shrum, Court Clerk
Wc.courtclerk@tn.gov
7
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: “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 fullycompleted
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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries-at-
work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________ Employer
Notice is given that ____________________________________________________________________ [List
name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the Workers’
Compensation Appeals Board (check one or more applicable boxes and include the date filestamped on
the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________ issued
by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 Employee Name: _______________________________________ Docket No.:
_____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
____________________________________________
__ [Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082