1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MEMPHIS

FREDERICK JOHNSON

, ) Docket No. 2018

- 08

- 1394 Employee, )

v. )

ENTERPRISE RENT

- A

- CAR

, ) State File No. 63023

- 2018 Employer
, )

a nd )

FARMINGTON CASUALTY CO., ) Judge Deana C. Seymour

Carrier. )

EXPEDITED HEARING ORDER

The Court convened an Expedited Hearing on August 30, 2019, to decide Mr. Johnson’s entitlement to medical and temporary disability benefits. Enterprise denied

benefits

, alleging that Mr. Johnson’s injuries resulted from prohibited “horseplay” that constituted willful misconduct. For the reasons below, the Court holds that Mr. Johnson is likely to prevail at a hearing on the merits and grants his request ed benefits. 1

History of Claim

Mr. Johnson testified he worked for Enterprise as a s ervice technician

. On August 20, 2018

, he noticed a dollar coin on the floor of the wash bay. As his co

- worker, Brike n a Dimce

, backed a van from the bay

, Mr. Johnson yelled , “Don’t run over the dollar.” She stopped and opened her door. Mr. Johnson gestured toward the coin and told Ms. Dimce

that he intended to get the dol lar

, but then he told her to go on. Before she closed her door, Ms. Dimce mistakenly “hit the gas” and struck Mr. Johnson.

Upon learning of the accident, Manager DeAnthony Smith went to the wash bay.

He discover ed Mr. Johnson somewhat unresponsive, bleeding

, and lying four to five feet

from the front driver’s side of the van

. He called 9

- 1

- 1 , and a n ambulance transported Mr. Johnson to Regional One Hospital.

1 The parties stipulated to a weekly compensation rate of $ 155.04. 

### FILED Sep 25, 2019 07:15 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS2 According to hospital records

, Mr. Johnson suffered scalp and facial lacerations

, cervical fractures

, and disk extrusions at two levels

. He received medication and physical therapy and was discharged on August 29. 2

Mr. Johnson followed up twice with Dr. Fredrick Pharr. Dr. Pharr took him off

work from September 20 to October 20 , but Mr. Johnson did not resume work until

November 6 . He worked until M arch 16, 2019

, when he decided he could no longer do his job. As a result, Enterprise terminated him for job abandonment.

Enterprise denied Mr. Johnson’s claim

, contending that his injuries resulted from horseplay involving a prank he played on Ms. Dimce as she backed from the wash bay.

He gestured and yelled, “You hit Darla” ( their co

- worker )

. According to Enterprise, Mr.

Johns on’s actions panicked Ms. Dimce

, and she mistakenly p ushed the gas , striking Mr.

Johnson.

Mr. Smith testified that he told Mr. J ohnson of Enterprise’s horseplay rule during orientation. He described Mr. Johnson as a good employee who did his best and liked to make others laugh. Mr. Smith did not witness the accident

. He knew of no other incident

where Mr. Johnson engaged in horseplay, and he did not discipline Mr. Johnson after the

accident

. Following t he accident , Mr. Smith searched for but could not find the coin Mr.

Johnson described. He admitted someone could have picked up the coin without his

kno wledge.

Ms. Dimce testified she began work ing for Enterprise a month before the accident.

She stated that Albanian was her native language

, and she had English language barriers.

Ms. Dimce testified Mr. Johnson was kind, helpful

, and never prank ed her before the

accident. He helped Ms. Dimce with her English and her driving skills.

Ms. Dimc e testified the accident occurred as she began backing from the wash bay . She understood Mr. Johnson to yell “You hit Darla” and saw him walking toward

the fro nt of the van, pointing behind it. Ms. Dimce panicked, opened her driver’s door to

look behind the van

, and accidently h it the gas instead of the brake . The van’s front

driver’s side door hit Mr. Johnson and knock ed him into a pole.

At first, Ms. Dimce thought Mr. Johnson was “playing with her” as Darla worked

inside the shop . However, when she visited Mr. Johnson in the hospital , he told her he was trying to tell her about a dollar coin lying on the ground behind the van. Ms. Dimce

was unsure whether M r. Johnson said “dollar” or “Darla

. ” She said she had no reason not

2 The emergency physician referred Mr. Johnson to a rehabilitation facility, but Enterprise denied

treatment

.3 to believe Mr. Johnson said “ dollar

. ” She also agreed the incident was an accident and nobody meant for it to happen.

Enterprise introduced a statement from Matt Sumler

, who was installi ng a windshield for Enterprise when the accident occurred. Mr. Sumler reported he saw Ms.

Dimce back from the wash bay and Mr. Johnson yell from the front of her van

. According to Mr. Sumler, Ms. Dimce struck Mr. Johnson when he jokingly ran behind

the van and bent over to act like Ms. Dimce hit something.

Mr. Johnson responded with testimony that he did not “prank” Ms. Dimce , and he understood the importance of prohibiting horseplay for employee safety. He testified Ms.

Dimce m isunderstood him and accidently pressed the gas resulting in the accident and his injuries.

Findings of Fact and Conclusions of Law

Mr. Johnson must prove the essential elements of his claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). He must present sufficient evidence that he is likely to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing , 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015).

Enterprise does not dispute that the incident occurred and Mr. Johnson was injured but argues the injury was the result of non

- compensable “horseplay.” The Tennessee Supreme Court characterized horseplay resulting in injury as willful misconduct. Rober t s v. Kroger Co

. , 832 S.W.2d 538, 541 (Tenn. 1992). Under Tennessee Code Annotated

section 50

- 6

- 110(a)(1) (201 8 )

, no compensation shall be allowed for an injury due to an employee’s “willful misconduct.”

In Mitchell v. Fayetteville Pub. Utils. , 368 S.W.3d 442 , 453 (Ten n. 2012) , the high

court outlined the following four

- point analysis of willful misconduct : (1) the employee’s actual, as opposed to constructive notice of the rule; (2) the employee’s understanding of the danger 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 f or violating the rule.

Applying these factors, the Court finds Mr. Johnson had notice that Enterprise prohibited horseplay, demonstrated by his own admission and the testimony of his supervisor. Mr. Johnson also said he underst oo d the danger involved in horseplay at Enterprise. Although Mr. Smith said he disciplined employees engaged in horseplay, the Court finds he spoke in generalities and later confirm ed he never disciplined Mr. Johnson for horseplay before or after the incident. Further, common sense dictates that a horseplay defense does not apply if an employer fail ed to prove horseplay occur r ed

.4 The Court recognizes that credibility is an integral issue in this case and finds Mr.

Johnson , Ms. Dimce

, and Mr. Smith credible witnesses. They testified calmly and confidently and were reasonable and forthcoming. See Kelly v. Kelly, 445 S.W.3d 685,

694

- 9 5 (Tenn. 2014). Mr. Sumler ’s statement

, in contrast

, is suspect

, as it portrayed a completely different account from the other witness es and placed M r

. Johnson beh i nd the

van

. None of the other witnesses placed him there. Ms. Dimce and Mr. Johnson described impact by the driver’s door. Although Mr. Smith did not observe the impact, he located Mr. Johnson on the bay floor four or five feet to the side of t he driver’s door. The Court

finds Mr. Sumler’s statement lack s credibility and gives it no weight.

Based on all th e evidence, the Court cannot conclude that Mr. Johnso n’s injuries resulted from horseplay . The evidence established his injuries resulted fr om Ms. Dimce’s improper driving and a miscommunication : h e said “dollar

, ” and she thought he said

“Darla.” Enterprise failed to prove Mr. John s on engaged in willful misconduct. Thus, the Court finds Mr. Johnson is likely to prevail at a hearing on the meri ts.

Mr. Johnson establish ed entitlement to the medical expenses he incurred for

treatment of his injuries. After his supervisor called 9

- 1

- 1, an ambulance transported him

to the hospital , where he remained until August 29. According to his medical records, Mr.

Johnson sustained substantial lacerations to his face and head, fractured vertebra e
, and

disk extrusions. The medical records also contain two follow

- up visits , September 20 and October 4, for his wor k injuries. 3 T he m edical expenses Mr. Johnson incurred for his injuries are justified , reasonable and necessary . The Court finds Mr. Johnson is likely to prevail at a hearing on the merits regarding entitlement to payment o f his medical bills.

To receive temporary disability benefits, Mr. Johnson must show (1) he became disabled from work due to a compensable injury; (2) a causal connection exists between the injury and his inability to work; and (3) the specific duration of his disability. Jones v.

Crenc or , 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015).

Here, the medical proof established Mr. Johnson received inpatient care from August 20 to August 29 and was excused from work from September 20 to October 20

for a total of five weeks and fi ve days. Therefore

, the Court holds Mr. Johnson proved entitlement to $ 885.95 in temporary total disability at this time. ( Five weeks x $155.04 = $ 775.20

, and five days x $22.15 per day = $110.75 )

. 4

IT IS, THEREFORE, ORDERED as follows:

3 The Court accepted the medical bills submitted by Mr. Johnson for identification only . However, the

Court finds the dates of service correspond with his hospital stay and first follow

- up visit. Thus, the Court allows the bills marked exhibit 3 into evidence for the limited purpose of reconciling the dates of service to the medical expenses Mr. Johnson claims.

4 Mr. Johnson did not prove work stat us from August 30 until September 19.5 1. Enterprise shall pay for reasonable and necessary med ical care Mr. Johnson incurred for inpatient treatment from August 20 to August 29 , 2018

, and two
follow

- up visits on September 20 and October 4 under Tennessee Code Annotated

section 50

- 6

- 204.

2. Enterprise shall provide Mr. Johnson a panel of physicians from which he may

select an authorized treating physician for reas onable and necessary treatment of

his wor k

- related injuries under Tennessee Code Annotated section 50

- 6

- 204(a)(1)(A).

3. Enterprise shall pay Mr. Johnson temporary total disability benefits of $885.9 5

under Tennessee Code An notated section 50

- 6

- 207(1)(A).

3. This case is set for a Status Hearing on November 4, 2019 , at 9 :00 a.m. Central

Time. You must call 615

- 532

- 9550 or toll

- free at 866

- 943

- 0014 to participate in the Hearing. Failure to call m ight result in a determination of the issues without your participation.

4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance with this Order must occur no later than seven business days from the date of entry of this Order as required by Tennessee Code Annotated section 50

- 6

- 239(d)(3)

. The Insurer or Self

- Insured Employer must submit confirmation of compliance

with th is Order to the Bureau by email to WCCompliance.Program@tn.gov no later than the seventh business day after entry of this Order. Failure to submit the necessary confirmation within the period of compliance m i ght result in a penalty

assessment for non

- compliance. For questions regarding compliance, please contact the Workers’ Compensation Compliance Unit via email at WCCompliance.Program@tn.gov

.

ENTERED Septem ber 2 5 , 2019

.

___________________________________ JUDGE DEANA C. SEYMOUR Court of Workers’ Compensation Claims6 Appendix

Exhibits:

1. Regional One medical records

2. Regional One record dated September 20, 2018

3. Regional One bills (Collective) (ID only /limited purpose )

4. Drawing of car and scene from Mr. Johnson’s deposition

5. Drawing of car and scene from Ms. Dimce’s deposition

6. Declaration of Matt Sumler

7. Mr. Johnson’s responses to Enterprise’s Request for Admissions

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing with Mr. Johnson’s Affidavit

4. Agreed Order Continuing Expedited Hearing Date

6. Employer’s Tenn. Comp. R & Regs. 0800

- 02

- 21

- .14(b) Disclosures

7. Employer’s Expedited Hearing Brief

8. Employee’s Pre

- Expedited Hearing Submissions

9. Order on Enterprise Rent

- A

- Car’s Motion to Compel Discovery

CERTIFICATE OF SERVICE

I certify a copy of this Order was sent to the parties as indicated on September 2 5

, 2019.

Name Certified

Mail Via

Fax Via

Email Service sent to:

Emily Bragg

, Employee’s attorney X ebragg@forthepeople.com

Chris Rowe

, Employer’s attorney X cgrowe@mijs.com

______________________________________ Penny Shrum, Court Clerk Court of Workers’ Compensation Claims wc.CourtClerk@tn.gov