### TENNESSEE BUREAUOFWORKERS' COMPENSATION INTHE COURT OFWORKERS' COMPENSATIONCLAIMS ATNASHVILLE Leonardo Calderon-Fuentes, Employee, 

### v. CEVALogistics U.S. Holdings, Employer, And New HampshireIns. Co., Carrier. ) DocketNo. 2018-06-1735 ) ) 

### ) StateFile No. 58665-2018 ) ) 

### ) JudgeKenneth M. Switzer )



### EXPEDITEDHEARING ORDERDENYINGREQUESTED RELIEF

This case requires the Court to determine whether Leonardo Calderon-Fuentes, while driving a forklift, collided with another moving forklift and suffered injuries. At a September 26 hearing, CEVA Logistics U.S. Holdings offered evidence from four ofits employees disputing Mr. Calderon-Fuentes's account of the events. Based on the evidence, the Court finds Mr. Calderon-Fuentes did not demonstrate that he would likely prevail at ahearing on the merits. His requested reliefis denied atthis time. Claim History According to Mr. Calderon-Fuentes, on July 25, 2018, while driving his forklift, he collided with another forklift driven by Anthony Banks. 1 

### He felt immediatepain but he thought it would subside with time. Mr. Calderon-Fuentes observed no damage to the forklifts and stated that CEVA has cameras at work that would have recorded the accident.
Mr. Calderon-Fuentes testified that he and Mr. Banks summoned their supervisor, Carie Williams, to report the accident. He told Ms. Williams he "had pain but I didn't think it was going to get worse." He did not ask to go to a doctor at that time. Ms. Williams told him to keep working, which he did, finishing his shift. He moved the

1Mr. Calderon-Fuentes's first language is Spanish. Steven Robinson interpreted atthe hearing. 

## FILED Oct 02, 2019 02:19 PM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS

### forklift because it was "on the line," but he did not drive anymore that day. Mr. Calderon-Fuentes worked for eight more days after the incident, until August 2, when he asked to leave because he was not feeling well.
Mr. Calderon-Fuentes said he never received a panel ofphysicians. Tomie Hill, CEVA's training and safety manager, confirmedthis in his directtestimony, stating, "We have a panel ofdoctors that we choose. Uh, Concentra was chosen

... for his care." CEVA did not introduce into evidence a signed panel form. Ultimately, Mr. CalderonFuentestreated on his own, but he introduced no records ofthe treatment otherthan work excuses. Mr. Hill further testified regarding Mr. Calderon-Fuentes's assertion that video footage exists ofthe accident. Mr. Hill stated he reviewed the available footage but no cameras are in the areawhere the incident occurred. When asked why, he said he did not placethe cameras; rather, security did.
Ms. Williams testified live and in a declaration that she investigated the incident on July 25. Another worker who speaks Spanish interpreted Mr. Calderon-Fuentes's account ofthe accident, which she documented in an incident report. Near the top ofthe document, a box is checked that characterized the incident as a "near miss." However, the interpreter wrote that "other driver appear [sic] from receiving stagin[g] areawhen he hit me[.]" The report states "no injuries." Ms. Williams testified that following the incident, she asked whether Mr. Calderon-Fuentes had any injuries or needed to see a doctor, and he said no. He signed the report, which is in English. Mr. Calderon-Fuentes testifiedthat he does notreadEnglish.
Ms. Williams further testified that she took statements from eye witnesses, Marise Edouard and Anthony Banks. Ms. Edouard told her the drivers stopped before impact. Mr. Banks, the other driver, likewise told her no impact occurred. Ms. Edouard and Mr. Banks signed sworn declarations statingthe same but did nottestify at the hearing.2


### Much of the testimony revolved around sensors placed on the forklifts. Ms. Williams explainedthat when a forklift hits an object, an "impact alert" sends an email to Mr. Hill, and the forklift becomes inoperable until it is reset. In this instance, however, she said both Mr. Banks and Mr. Calderon-Fuentes were able to operate their forklifts afterward. Mr. Hill statedthat he did notreceive an impact email from the sensors on the forklifts, which he described as "sensitive." On cross-examination, Mr. Hill said, "It's rare that a lift doesn't lock-out when there's an impact." He explained that a sensor might not send an alert if a forklift hit a support beam, but "a hard impact forklift collision" would set it off, and he hasn't "had a forklift collision that hasn't shut down on

2 CEVA subpoenaed them, but for unknown reasons they did not appear. Mr. Calderon-Fuentes did not subpoenathem to appear. 2[him]." For his part, Mr. Calderon-Fuentes testified, "I've been working there for six years, and a forklift will never lock up, even ifit'shard-crashed."
As for authorized treatment, Mr. Calderon-Fuentes saw a physician assistant at Concentra on August 3, who noted he "was on forklift was hit by another forklift pain in back DOl 07/25/2018." The physician assistant placed him on restrictions. Mr. Hill testified that CEVA offered to accommodate Mr. Calderon-Fuentes's work restrictions. CEVAintroduced aBonaFide Offer ofEmployment in support ofthis contention.
CEVA denied the claim on August 13, citing "no accident arising out ofthe course and scope ofhis employmen[t]." Mr. Calderon-Fuentes took leave under the Family and Medical Leave Act. He returned to work without restrictions in December 2018 and continues working at CEV A. Findings ofFact and Conclusions ofLaw
An injured worker retains the burden of proof at all stages of a workers' compensation claim. 

### Buchanan v. Car/ex Glass Co., 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Sept. 29, 2015). At an expedited hearing, a trial court may grant relief ifthe court is satisfied that an employee has met the burden ofshowing that he or she is likely to prevail at a hearing on the merits. !d. Here, Mr. Calderon-Fuentes must show he suffered an accidental injury "causedby a specific incident, or set ofincidents, arising primarily out ofand in the course and scope ofemployment, and is identifiable by time andplace ofoccurrence." Tenn. Code Ann. § 50-6-102(14)(A) (2018). The proofabout the events leading to this claim ofinjury varies significantly. On one hand, Mr. Calderon-Fuentes credibly testified about the events before and after the alleged forklift collision on July 25. He stated that his forklift made actual contact with Mr. Banks's, resulting in pain and injury. Although Ms. Williams's accident report characterizes the incident as a "near miss," it also states, "other driver appear [sic] from receiving stagin[g] area when he hit me[.]" Further, Mr. Calderon-Fuentes gave a similar history ofinjury to providers at Concentra. The Court finds it plausible that the forklifts could collide without damaging either one. On the otherhand, the Court must weigh the testimony ofsupervisors who did not witness the accident but rather conducted investigations afterward. Ms. Williams spoke to, and CEV A obtained declarations from, two eye witnesses who said the forklifts did not collide. Although they were not present at the hearing for Mr. Calderon-Fuentes to cross-examine, their statements are sworn, and the Court must assign some weight to them.
But perhaps most compelling is the testimony regarding the sensors, which is circumstantial evidence. The Appeals Board cited longstanding law that "[a]ny fact may
3be proved by direct evidence, circumstantial evidence, or a combination ofthe two" and that "[t]he law does not distinguish between the probative value ofdirect evidence and the probative value ofcircumstantial evidence." LaGuardia v. TotalHoldings USA, Inc., d/b/a Hutchinson Sealing Sys., 2017 TN Wrk. Comp. App. Bd. LEXIS 73, at *8-9 (Nov. 29, 2017).
Mr. Hill credibly testified that he did notreceive an email alerting him ofa forklift collision on the date ofthe incident and that the sensors are "sensitive." He said that it is "rare" for a sensor not to send an alert on impact. He acknowledged that it might not happen when striking a supportbeambutmaintained that a "hard impact" collisionwould have sent an alert. Likewise, Ms. Williams credibly explained the forklifts would have been inoperable after an impact until they are reset. However, Mr. Calderon-Fuentes admitted he was able to move his forklift after the incident, albeit merely to move it off the line.
Mr. Calderon-Fuentes insisted that he never saw a forklift stop working after a hard impact overthe course ofhis sixyears at CEVA. The Court finds no explanation for the discrepancies in their testimony. Regardless, weighing Mr. Calderon-Fuentes's testimony on this point against that ofMr. Hill and Ms. Williams, the Court credits their contention that the sensors on their forklifts would have alerted Mr. Hill and that the forklifts wouldhave been inoperablehad a collision occurred. Therefore, on this record, Mr. Calderon-Fuentes did not satisfY his burden to show likelihood ofa "specific incident, or set ofincidents, arising primarily out ofand in the course and scope ofemployment," as the statute requires. The Court is unable to grant the requested medical ortemporary disability benefits atthis time. Having ruled, the Court must also comment on CEVA's handling of Mr. Calderon-Fuentes's assertion ofan injury. Mr. Calderon-Fuentes testified that he never received a panel ofphysicians. Mr. Hill confirmed, "We have a panel ofdoctors that we choose. Uh, Concentra was chosen

. . . for his care." CEVA did not introduce a panel into evidence. When an injured worker expresses a need for medical care, "[t]he employer shall designate a group ofthree (3) or more independent reputable physicians

... from which the injured employee shall select one (1) to be the treating physician." Tenn. Code Ann. § 50-6-204(a)(3)(A)(i). The Court finds CEVA did not comply with this provision when it directed Mr. Calderon-Fuentes to Concentra. This case is referred to the Compliance Program for consideration of a penalty. See Tenn. Code Ann. § 50-6-118(a)(l2) (The Bureau may collect penalties for an employer's failure to timely provide a panel of physicians).

4ITIS, THEREFORE, ORDERED AS FOLLOWS: 1. Mr. Calderon-Fuentes'srequestedreliefis denied at this time.
2. This case is set for a Scheduling Hearing on December 2, 2019, at 9:00 a.m. Central Time. You must call 615-532-9552 or toll-free at 866-943-0025 to participate. Failure to call might result in a determination ofthe issues without yourparticipation.
3. This case is referred to the Compliance Program for consideration of the imposition ofapenalty for CEVA's failure to offer apanel ofphysicians. ENTERED October2, 2019.

Court ofWorkers' Compensatio

5APPENDIX
Exhibits 1. Affidavit ofLeonardo Calderon-Fuentes 2. FirstReport ofInjury 3. Denial 4. Composite medical records 5. Declaration ofTomieHill/attachedproofofwages 6. Declaration ofCarie Williams and attachments 7. Declaration ofMariseEdouard 8. Declaration ofAnthonyBanks 9. BonaFide OfferofEmployment
Technical Record 1. Petition for BenefitDetermination 2. Dispute CertificationNotice 3

. Show-Cause Order 4

. Request for Expedited Hearing 5. Orderon Show-Cause Hearing 6

. Employer'sPosition Statement

CERTIFICATE OF SERVICE
I certifY that a copy ofthis Orderwas sent as indicated on October 2, 2019.
Name Certified Regular Email Sentto Mail mail Leonardo Calderon- X 320 WelchRd., Apt. G3 Fuentes, Self- NashvilleTN 37211 represented Emplo_yee Tyler Smith, X tsmith@lewisthomason.com EmpJoyer's attorney rcorrigan@lewisthomason.com Compliance X WCComQIiance.Prog ram@tn.gov Program

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