### COURT OFWORKERS' COMPENSATION CLAIMS DIVISION OFWORKERS' COMPENSATION EMPLOYEE: Pamela Bates DOCKET#: 2014-06-0053 STATE FILE#: 86152-2014 FILED FebruaT)' 27 , 2015**OL:RTOF** WORKIRS '**O:'\IP :"'S** **TIO~** CLAI:'\I S Time: 9:5JA.\1



### EMPLOYER: Command Center, Inc. DATE OF INJURY: August 26,2014 INSURANCE CARRIERITPA: Gallagher Bassett EXPEDITED HEARING ORDER THIS CAUSE came before the undersigned Workers' CompensationJudge onFebruary 26, 2015, upon the Request for Expedited Hearing filed by Pamela Bates, Employee, on February 5, 2015, pursuantto Tennessee Code Annotated section 50-6-239to determine ifEmployer, Command Center, Inc. ("CCI"), is obligated to provide temporary disability and/or medical benefits. The undersigned Workers' CompensationJudge conducted atelephonic Expedited Hearing on February 26, 2015. Ms. Bates represented herself. A representative ofCCI and its workers' compensationcarrierthird-party administrator, GallagherBassett ("Carrier"), claims adjustorTamala Gilbert-Harris, appeared but did not participate 1

. Considering the applicable law, Ms. Bates' testimony and argument and the technical record, this Court finds that Ms. Bates did not sustain a compensable injury and is not entitled to the requested benefits. 

### ANALYSIS Issue Whether Ms. Bates sustained an injury that aroseprimarily out of and in the course and scope of employment with CCI

1The "Mediation and Hearing Procedures" governing practice inthe Court ofWorkers' Compensation Claimsprovides that at any hearing ormediation proceeding, "Any corporation or other artificial person may participate through a duly authorizedrepresentative such as an officer, director orappropriate employee, butmustbe representedbycounsel in all proceedings occurring in the court ofworkers' compensation claims

... []" Tenn. Comp. R. & Regs., 0800-02-21- .05(1)(c) (2014). (Emphasis added.) After the Expedited Hearing, Ms. Gilbert-Harris contacted the Clerk ofCourt for the Court ofWorkers' Compensation Claims to ascertain the e-mail address where the Notice ofExpedited Hearing was sent. It appears that due to a clerical error, Ms. Harris did not receive notice ofthe hearing, and as a result did not retain counsel. However, in light ofthe Court's finding ofnoncompensability, CCI and Carrier suffered no prejudice as a result of their nonparticipation by counsel in the hearing.Evidence Submitted Ms. Batestestified butfailed to formally move any documentation into evidence. The Court designated the following as the technical record:

• Request for Expedited Hearing, February 5, 2015 • Dispute Certification Notice, January 12, 2015 • Petition for Benefit Determination, October 16, 2015. The Courtdid not consider attachmentsto the above filings not admitted into evidence during the Expedited Hearing. The Court considered factual statements in the above filings and their attachments as allegations unless established by the evidence. History ofClaim Ms. Bates is a 50-year-old resident ofDavidson County, Tennessee. She testified that on August 26, 2014, she reported to work for CCI at Walmart on 2421 Powell Avenue in Nashville. Her supervisor assigned her to unload a truck. She stated that while performing her duties, a coworker who was not scheduled to work, Kerry Lindsey, approached her inside the truck and said, "Bitch, you're in the business." She responded that he was drunk and he should "get out ofmy face." He then "mugged" her by hitting her in the face. Ms. Bates immediately contacted her supervisor, who asked to speak with Mr. Lindsey. Ms. Bates refused to give him her phone. Mr. Lindsey proceeded to throw a water bottle, which hit Ms. Bates' face. Ms. Bates telephoned the police andthen sought medical care. TheNashvilleFire DepartmentEMS transported Ms. Bates to the hospital. Ms. Bates incurred a statement for this inthe amount of$707.20, which CCI declined to pay. Ms. Bates testified that she worked with Mr. Lindsey previously and never had any prior conflicts withhim. She did knowwhyhe waspresent. The Court asked whetherthe altercationhad anything to do with work, to which Ms. Bates responded, "I can't say." She stated she believes he was intoxicated atthe time. Accordingto Ms. Bates, CCIterminatedherthe next day because ofthe "personal conflict." Employee's Contentions Ms. Bates contends she sustained a compensable injury when Mr. Lindsey assaulted her at work. Findings ofFact and Conclusions ofLaw StandardApplied When determining whether to award benefits, the Judge must decide whether the moving party is likely to succeed on the merits at trial given the information available. See generally, McCallv. Nat'lHealth Care Corp., 100 S.W.3d 209,214 (Tenn. 2003). In a workers' compensation 2action, pursuant to Tennessee Code Annotated section 50-6-239(c)(6), the employee shall bearthe burden ofproving each and every element ofthe claim by a preponderance ofthe evidence. The employee must showthe injury arose primarily out ofand in the course and scope ofemployment. Tenn. Code Ann.§ 50-6-102(13) (2014). 

### Dispositive Factual Finding On August 26,2014, Mr. Lindsey hit Ms. Bates in the face while she was at work. The injury was the result ofan inherently private dispute. 

### Application of Law to Facts Ms. Bates' injury did not arise primarily out ofand in the course and scope ofher employment with CCI Tennessee Code Annotated Section 50-6-102(13) defines an injury as follows : "Injury" or "personal injury" mean an injury by accident

. . . arising primarily out ofand inthe course and scope ofemployment, that causes

...the need for medical treatment ofthe employee; provided, that: (A) An injury is "accidental" only if the injury is caused by a specific incident, or set ofincidents, arising primarily out of and in the course and scope ofemployment

. . . [.] Tenn. Code Ann. § 50-6-102(13)(A) (2014). An injury occurs in the "course ofemployment" ifit takes place while the employee performs a duty she was employed to perform. 

### Finkv. Caudle, 856 S.W.2d 952, 958 (Tenn. Workers' Comp. Panel, 1993). Ms. Bates was at work unloading a truck, her assigned task, when the assault took place. Therefore the injury occurred in the course ofher employment. The determinative issue is whether Ms. Bates' injury arose primarily out of her employment. The statutory definition of"injury"additionallyprovides: "Aninjury 'arisesprimarilyout of and in the course and scope ofemployment' only ifit has been shown by a preponderance ofthe evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes[.]" Tenn. Code Ann.§ 50-6-102(13)(B) (2014). The Tennessee Supreme Court recognized the following three categories for workplace assaults: (1) Assaults with an "inherent connection" to employment, such as disputes over performance, pay or termination; (2) Assaults stemming from "inherently private" disputes imported into the employment setting from the claimant's domestic orprivate life and not exacerbated by the employment; and, (3) Assaults resulting from a "neutral force" such as random assaults on employees by individuals outside the employment relationship.

3Woods v. Harry B. Woods Plumbing Co., 

### 967 S.W.2d 768,771 (Tenn. 1998). Assaults falling into the first category are compensable. Waitv. TravelersIndem. Co. oflll., 

### 240 S.W.3d220, 227 (Tenn. 2007). Assaults falling into the second category are not. Woods, 

### at 771. The compensability of assaults falling into the third category "depend[s] on the facts and circumstances of the employment." !d. 

### Ms. Batestestified that she "can't say" the injuryis work-related. Therefore, her injury does not fall into the first category because, by her own admission, the dispute between her and Mr. Lindsey had no inherent connection to her employment. The dispute did not stem from "performance, pay or termination," or any matter that appears to have a connection to work, other than the tangential fact that CCI employed them both. Further, the assault cannot be classified as resulting from a "neutral force," because it was not a "random assault

... by individuals outside the employment relationship," since Mr. Lindsey was a co-worker. The incident is an "inherently private dispute," not exacerbated by the employment. Ms. Bates testified that she does not know why Mr. Lindsey assaulted her, other than his intoxication. She stated that her termination was due to "personal conflict." While she likely disputes CCI's characterization, itis further indicationto the Courtthatthere is no connectionbetweenherwork and the injury. The Court finds Ms. Bates' testimony credible. The Court sympathizes with her pain and frustration. Notwithstanding, this Court finds that Ms. Bates is not entitled to workers' compensationbenefits because the injury did not arise primarilyout ofand inthe course and scope of her employment. IT 

### IS, THEREFORE, ORDERED 

### as follows: 1. Ms. Bates' claim against CCI and its workers' compensation carrier for the requested benefits is denied on the grounds ofcompensability. 2. This matter is set for Initial Hearing on April1, 2015, at 9:00a.m. Central Time. ENTERED this the 27th day ofFebruary, 2015.

enneth M. Switzer, e Court ofWorkers' Compensation Claims

4Initial Hearing: AnInitial Hearing has been set with ChiefJudge Kenneth M. Switzer, Court ofWorkers Compensation. You must dial in at 615-532-9552 or 866-943-0025 toll free to participate in your scheduled conference. Please Note: You must call in on the scheduled date/time to participate. Failure to call in may result in a determination ofthe issues withoutyourfurther participation. All conferences are set using Central Time (CT). Right to Appeal : Tennessee Law allows any party who disagrees withthis Expedited Hearing Orderto appeal the decision to the Workers' Compensation Appeals Board. To file a Notice ofAppeal, you must: 1. Complete the enclosed form entitled: "Expedited Hearing Notice ofAppeal." 2. File the completed form with the Court Clerk within seven (7) business days ofthe date the Workers' Compensation Judge entered the Expedited Hearing Order. 3. Serve a copy ofthe Request for Appeal upon the opposing party. 4. The parties, having the responsibility ofensuring a complete record on appeal, may request from the Court Clerkthe audio recording ofthe hearing for the purpose ofhavingatranscript prepared by a licensed court reporter and filing it with the Court Clerk within ten (1 0) calendar days ofthe filing ofthe Expedited Hearing Notice ofAppeal. Alternatively, the parties may file a statement ofthe evidence withinten (1 0) calendar days ofthe filing ofthe ExpeditedHearingNotice ofAppeal. TheJudge must approvethe statement ofthe evidence before the Clerk ofCourt shall submit the record to the Clerk ofthe Appeals Board. 5. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appealing party shall file such position statement with the Court Clerk within three (3) business days ofthe filing ofthe Expedited Hearing Notice ofAppeal, specifying the issues presentedfor reviewand including any argumentin supportthereof. Ifthe appellee electsto file a response in oppositionto the interlocutory appeal, appellee shall do so withinthree (3) business days ofthe filing ofthe appellant's position statement.

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### CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe Expedited Hearing Order was sent to the following recipients by the following methods ofservice on this the 27th day ofFebruary, 2015.

Name Certified First Via Fax Via Email Address Mail Class Fax Number Email Mail 

### Pamela Bates X 

### Pamelabates14(@,yahoo.com Employee Tamala Gilbert- X 

### Tamala**gilbert-harris(@,gbt~a.com** 

### Harris, Carrier's ad.iustor

, Clerk ofCourt orkers' Compensation Claims

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