COURT OF WORKERS' COMPENSATION CLAIMS DIVISION OF WORKERS' COMPENSATION

EMPLOYEE: JEFFREY SCARBROUGH DOCKET#: 2014-03-0006 . FILED Mtuch J, 21115**f~4._'HJRI** OJ.**~YOimt:R.."i'** CO,\fi'J'::"iS,YIW:"o'

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STATE FILE#: 69072-2014 EMPLOYER: RIGHT WAY RECYCLING, LLC DATE OF INJURY: JULY 23,2014 INSURANCE CARRIER: N/AJNO COVERAGE

EXPEDITED HEARING ORDER THIS CAUSE came before the undersigned Workers' Compensation Judge upon the Request for Expedited Hearing filed by Jeffrey Scarbrough (Employee). Considering the positions ofthe parties, the applicable law, and all ofthe evidence submitted, the Court hereby finds as follows: On January 21, 2015, Jeffrey Scarbrough, through counsel, filed a Request for Expedited Hearing with the Tennessee Court of Workers' Compensation Claims, Division of Workers' Compensation, pursuant to Tennessee Code Annotated section 50-6-239 to determine ifthe provision oftemporary disability and/or medical benefits is appropriate. ANALYSIS Issues

• Whether Mr. Scarbrough sustained an injury that arose primarily outofandinthe course and scope ofemployment with Right Way Recycling; • Whether Right Way Recycling must provide a panel ofphysicians to Mr. Scarbrough; • Whether Right Way Recycling must pay for past medical and/or mileage expenses; • Whether Right Way Recycling must provide Mr. Scarbrough additional medical care as recommended by a physician; • Whether Right Way Recycling must pay Mr. Scarbrough any past or future temporarytotal disability benefits and ifso, in what amount; • Whether Right Way Recycling has adequate grounds to denyMr. Scarbrough's claim based on the affirmative defenses ofwillful misconduct.



### 1

### Evidence Submitted The following witnesses testified in person at the hearing:

o Jeffrey Scarbrough o Kumar Roopchan o Francisco Sebastian o Johnny Munsey The parties introduced the following exhibits into evidence:



### • Exhibit 1: Affidavit ofJeffrey Scarbrough 

### • Exhibit 2: Deposition transcript ofJohnny Munsey 

### • Exhibit 3: Deposition transcript ofFrancisco Sebastian 

### • Exhibit 4: Deposition transcript ofKumar Roopchan 

### • Exhibit 5: Wage Statement with stipulated rate of$360.00 

### • Exhibit 6: Medical Records and Expenses of: o University ofTennessee Medical Center o Neurosurgical Associates 

### • Exhibit 7: Deposition transcript ofJeffrey Scarbrough 

### • Exhibit 8: Time Cards 

### • Exhibit 9: Jeffrey Scarbrough's employment application The Court designated the following as the technical record:

o Petition for Benefit Determination filed September 4, 2014 o Dispute Certification Notice filed November 21, 2014 o Request for Expedited Hearing filed January 21, 2015 The Court did not consider documents attached to the above-designated filings unless admitted into evidence during the Expedited Hearing. The Court considered factual statements in the above filings as allegations unless established by the evidence. 

### History ofClaim Mr. Scarbrough worked as a laborerfor Right Way Recycling (Right Way) pullingparts offcars and striping wires (Exhibit 7, p. 26). Right Way employees usually arrived at 8:00a.m. In order to open the business eachmorning, someone had to movethe trackhoe/crane (trackhoe), bobcat, and forklift. Francisco Sebastianregularly operatedthe trackhoe (Exhibit 3, p. 16). OnJuly 23, 2014, Mr. Sebastian did not arrive at opening time (Ex. 3, p. 7). On that date, Mr. Scarbrough attempted to move the trackhoe but could not to start it (Ex. 7, p. 26). Mr. Scarbrough fell while climbing down from.the trackhoe, injuring his head/neck (Ex. 7, p. 38). He received treatment from: UTMedical Center; Dr. Michael Walsh, and Dr. BrianPowell. The Court convened an Expedited Hearing onFebruary 3, 2015. Attorney Chris Beaversrepresented Mr. Scarbrough and attorney Joshua Wolfe represented Right Way. The following witnesses provided live 2testimony at the hearing: Jeffrey Scarbrough; Kumar Roopchan; Francisco Sebastian; andJohnny Munsey. 

### Mr. Scarbrough's Contentions Attorney Beavers argued thatthe Right Way employees were required to move the heavyequipment in order to open the business. Mr. Sebastian usually moved the trackhoe but he was not at work onJuly 23, 2014. Mr. Scarbrough stated that Mr. Roopchan yelled at everyone to "Get the damn place open so they started moving equipment, cars, and trucks (Ex. 7, p. 33). He testified that Right Way never told him he could not operate the heavy equipment (Ex. 7, p.36). Mr. Scarbroughtried to startthe trackhoe, but it failed to start and he fell while climbing down. He testified that he told Mr. Roopchan that he fell and Mr. Roopchan said, "It'sjusta scrape. Go backto work" (Ex.7, p. 41). Mr. Scarbroughtestifiedthatthe medical providers took him offwork from July 24 until September 24, 2014. Mr. Beavers averred Right Way did not have an official policy or safety rule prohibiting Mr. Scarbrough from operating the trackhoe. Further, there was nothing inherently dangerous about movingthe trackhoe since Mr. Scarbrough had previously operated heavy equipment. Mr. Scarbrough did not have actual knowledge that Right Wayprohibited him from operating the trackhoe. Mr. Beavers further averred that Right Way did not enforce the alleged policy and Mr. Roopchan did not discipline Mr. Scarbroughwhen he allegedly violated it. Mr. Beavers stated Mr. Scarbrough did not benefit from his attempt to move the trackhoe but, ifsuccessful, his actions wouldhave benefited Right Way. Finally, Mr. Beavers notedthat Mr. Scarbrough committed an error injudgment but did not willfully or intentionally fail to follow a safety policy. Right Way, therefore, failed to establish that Mr. Scarbrough engaged in willful misconduct. Accordinlgy, Right Way must pay Mr. Scarbrough's medical expenses and also pay him temporary total disability benefits from July 24 through September 24, 2014. 

### Right Way's Contentions Mr. Wolfe stated that the employees knew that only Mr. Sebastian and Mr. Roopchan had authorization to move the trackhoe. Right Way told Mr. Scarbrough not to operate the trackhoe but he willfully and intentionally ignored the standing order. Mr. Roopchan, Mr. Sebastian, and Mr. Munsey testified that the Right Way employees were told that no one other than Mr. Roopchan and Mr. Sebastian were allowed to operate the trackhoe (Ex. 4, p.22.; Ex. 3, pp. 11, 12; Ex. 2, pp. 15, 16). They also testified that when Mr. Scarbrough came to pickup his final check, he acknowledgedthathe should nothave been on the trackhoe (Ex

. 4, pp. 2, 27; Ex. 3, pp. 25, 26; Ex. 3, pp. 18, 19). Mr. Roopchan also stated that they never needto enforcethepolicybecause no employee had everbroken it (Ex. 4, p. 39). Mr. Wolfe averredthat Mr. Scarbrough engaged inwillful misconduct and, as a result, his claimis not compensable. Further, Mr. Wolfe argued that the definition of injury has changed and, because moving the trackhoe was not part of Mr. Scarbrough'sjob duties, the injury did not arise primarily in the course and scope ofhis employment. 

### Findings ofFact and Conclusions ofLaw StandardApplied When determining whether to award benefits, the Judge must decide whether the moving party is likely to succeed onthe merits at trial giventhe information available. See generally, McCall v. Nat 'lHealth 3

### Care Corp., 100 S.W. 3d 209,214 (Tenn. 2003). In a workers' compensation actionpursuantto Tennessee Code Annotated section 50-6-239(c)(6), the employee shall bear the burden ofproving each and every element ofthe claim by a preponderance ofthe evidence. Employee must showthe injury arose primarily out ofand in the course and scope ofemployment. Tenn. Code Ann.§ 50-6-102(13). 

### Factual Findings Upon consideration ofthe testimony in open court, the exhibits introduced as evidence, the arguments ofthe parties, and the entire record in this claim, the Court finds:

• Mr. Scarbrough knew that Mr. Sebastian and Mr. Roopchan always moved the trackhoe. • On the date ofinjury, Mr. Sebastian was not at work to move the trackhoe. • Mr. Scarbrough had prior experience as a heavy equipment operator. • On the date ofinjury, Mr. Scarbrough tried to move the trackhoe so Right Way could open to its customers. • While Mr. Scarbrough's attempt to move the trackhoe may have been negligent since he had not operated heavy equipment in the past ten (1 0) years, his actions did not rise to the level ofwillful misconduct. • Mr. Scarbrough acted in the course and scope ofhis employment when he attempted to move the trackhoe because his actions furthered the business interests ofRight Way. • Mr. Roopchan and Mr. Sebation told Mr. Scarbrough not to operate the trackhoe/crane but their actions did not establish a specific safety rule in place that was enforced. • Mr. Scarbrough's injury prevented him working from July 24, through September 24, 2014. 

### Application of Law to Facts The controlling case outliningthe willful misconduct affirmative defense is

### Mitchell v. Fayetteville Public Utilities, 368 S.W.3d 442 (Tenn. 2012). The previous statutory preference for an equitable construction and a remedial application played no role in that case's outcome. Therefore, this Court is bound by its principles. 

### See Goodman v. HBD Indus., 208 S.W.3d 373 (Tenn. 2006). In order to successfully defend a workers' compensationclaim onthe basis ofwillful misconduct, willful disobedience ofsafetyrules, or willful failure to use a safety device under Tennessee Code Annotated section 50-6-11O(a), the 

### Mitchell Court adopted a four-step test: (1) the employee's actual, as opposed to constructive, notice ofthe rule; (2) the employee's understanding ofthe danger involved in violating the rule; (3) the employer's bona fide enforcement ofthe rule; and, (4) the employee's lack ofa valid excuse for violating the rule. 

### Mitchell, 368 S.W. at453. Tennessee Code Annotated section 50-6-204(a)( 1 )(A) (20 14) provides that employers mustprovide to injured employees suchmedical care and treatment "madereasonably necessaryby accident as defined in this chapter." The statute further requires the employee to accept medical benefits furnished by the employer, provided, that: [I]in any case whenthe employee has suffered an injury and expressed a need for medical care, the employer shall designate a group ofthree (3) or more 4reputable physicians, surgeons, chiropractors or specialty practice groups if available in that community

... from which the injured employee shall select one ( 1) to be the treating physician. Tenn. Code Ann. § 50-6-204(3)(A) (20 14). TheTennessee Supreme Courthasheld thatwherethe employer fails to give the employee the opportunity to choose the ultimate treating physician from a panel ofat least three physicians, he runs the risk ofhavingto paythe reasonable costfor treatment ofthe employee's injuries by a physician ofthe employee's choice. UnitedStates Fidelity & Guaranty Co. v. Morgan, 795 S.W.2d 653, 655 (Tenn. 1990). The decision turns onthe issue ofwhether, under the circumstances, the employee was justifiedin obtaining further medical services, without first consultingthe employer orits insurer. Id, citing Burlington Industries, Inc. v. Clark, 571 S.W.2d 816 ( 1978). Temporary total disability benefits, authorized by Tennessee Code Annotated section 50-6-207(1), ensure that employees receive compensation during the time they are totally prevented from working while recuperating as far as the nature oftheir injury permits. GluckBros., Inc. v. Coffey, 431 S.W.2d 756, 759 (Tenn. 1968). In other words, "the temporary total disability period is the healing period during which the employee is totallyprevented from working." Id Inorderto establish aprima facie case for temporarytotal disability benefits, the workermust showthat (1) he or she was totally disabled and unable to work due to a compensable injury, (2) the work injury and inabilityto work are causallyconnected, and (3) the duration of the disability. Gray v. Cullom Machine, Tool & Die, Inc., 152 S.W.3d 439, 443 (Tenn. 2004). Inthis case, Right Way allegedthatMr. Roopchan and Mr. SebastiantoldMr. Scarbrough on one or two occasions notto operatethe trackhoe. Mr. Roopchantestified thatthere were no safetyrulesposted on the premises or on the trackhoe. Further, he testified that he did not have any documentation that established the rule or proved that Mr. Scarbrough knew about the rule. This Court finds telling an employee not to do something on one ortwo occasions does not rise to the level ofhaving a safetyrule or policy in place. Furthermore, the Court finds that even ifRight Way established a policy prohibiting operating Mr. Scarbroughfrom operating the trackhoe, Mr. Scarbrough didnotviolatethepolicybecause he never operated the trackhoe. It is undisputed that Mr. Scarbrough did not start the trackhoe but fell while exiting it. Accordingly, the alleged violation ofthe safety rule from operating the trackhoe did not cause Mr. Scarbrough's injury. Mr. Scarbroughtestified that he had operated heavy equipmentinthe past. Accordingly, this Court finds that Mr. Scarbrough couldnothave appreciatedthe dangerinvolved inmovingthetrackhoebecause no danger existed. This Courtfinds that evenifthere was an applicable safetyrule inplace, Right Waydid not establish that it exercised bona fide enforcement of the rule because Mr. Roopchan did not discipline Mr. Scarbrough when he attempted to move the trackhoe. Mr. Scarbroughtestifiedthathe only attemptedto move thetrackhoe because Mr. Sebastianwas not present and they had to move the equipment in order for the business to open. This Court finds Mr. Scarbrough's on this issue established a valid reason/excuse for attempting to move the trackhoe.

5Finally, although moving the trackhoe was not one ofMr. Scarbrough's assigned work duties, his attempt to move it on the date ofinjury furthered Right Way's business interests. Therefore, this Court finds that Mr. Scarbrough' s injury arose primarily out ofand in the course and scope ofhis employment. Right Way did not provide Mr. Scarbrough with a panel ofphysicians. Therefore, it was reasonable for him to obtain medical services. Mr. Scarbrough established that he was disabled from working for the timeperiod ofJuly 24 through September 24, 2014. Therefore, he is entitled to temporary total disability benefits for that time period. IT IS, THEREFORE, ORDERED as follows: 1. Medical care for Mr. Scarbrough's injuries shall be paid and Right Way Recycling, LLC shall provide Mr. Scarbrough with medical treatment for these injuries as required by Tennessee Code Annotated section 50-6-204, to be initiatedby Right Way Recycling, LLC providingEmployee with a panel ofphysicians as required by that statute for any future care that is reasonable, necessary, and related to this July 23, 2014, injury. Further, Right Way Recycling, LLC is responsible for reimbursement/payment ofpastmedical expenses that were reasonable, necessary, and related to his July 23, 2014, injury. Medical bills shall be furnished to Right Way Recycling, LLC by Mr. Scarbrough, Mr. Beavers, or the medical providers. 2. The amount of temporary disability benefit is $360.00 per week based on the stipulation ofthe parties. 3. Payment ofpast due benefits in the amount of$3,240.00 shall be made for the period from July 24, 2014 to September 24, 2014. 4. This matter is set for Initial Hearing on March 31, 2015 at 9:30a.m. EST. 5

. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance with this Ordermust occurno laterthan seven (7) business days from the date ofentry ofthis Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The Insurer or Self-Insured Employermust submit confirmation ofcompliancewith this Orderto theDivision by email to WCCompliance.Program@tn.gov no later than the seventh (7th) business day after entry of this Order. Failureto submitthe necessary confirmationwithin the period ofcompliancemay result in a penalty assessment for non-compliance. 6

. For questions regarding compliance, please contact the Workers' Compensation Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615) 253-1471 or (615) 532-1309. ENTERED this the 3rd day ofMarch 2015.

Hon. Lisa A. Knott Workers' Compensation Judge

6Initial Hearing: Your conferencehas been set withJudge LisaA. Knott, Court ofWorkers' Compensation Claims on 

### March 31, 2015, at 9:30 a.m. EST. You must call 

### 865-594-0109 on that date and time in order to participate in your scheduled conference. PleaseNote: Failure to appear may result in a determination ofthe issues withoutyour further participation. 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 of the date the Expedited Hearing Order was entered by the Workers' Compensation Judge. 3. Serve a copy ofthe Request for Appeal upon the opposing party. 4. Theparties, having the responsibility ofensuring a completerecord on appeal, mayrequestfrom the Court Clerk the audio recording ofthe hearing for the purpose ofhaving a transcript prepared by a licensed courtreporter and filing it withthe Court Clerkwithinten (1 0) calendar days ofthefiling of the Expedited Hearing Notice of Appeal. Alternatively, the parties may file a statement of the evidence withinten (1 0) calendar days ofthe filing ofthe Expedited Hearing Notice ofAppeal. The statement ofthe evidence must be approved by the Judge before the record is submitted 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 presented for review and including any argument in support thereof. Ifthe appellee elects to file a response in opposition to the interlocutory appeal, appellee shall do so within three (3) business days of the filing of the appellant's position statement.

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### CERTIFICATE OF SERVICE I hereby certifythat a true and correct copy ofthe Expedited Hearing Orderwas sentto the following recipients by the following methods ofservice on this the 3rd day ofMarch, 2015.

Name Certified First Via Fax Via Email Address Mail Class Fax Number Email Mail Chris Beavers. Esq

. chriswbeavers@vahoo.com Joshua 

## A. Wolfe, Josh.wolfe@leitnerfirm.com Esq.

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# ..**~:-** Tenne ·ee Court ofWorkers' Compensation Claims

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