FILED

May 02, 2018

07:56 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT MEMPHIS 

EDWARD OGLESBY, 

Employee, 

v. 

) 

) 

) 

) 

UNITED PARCEL SERVICE. INC., ) 

Employer, ) 

And 

LIBERTY MUTUAL INS. CO., 

) 

) 

Carrier. ) 

Docket No.: 2017-08-1148 

State File No.: 68608-2017 

Judge Deana C. Seymour 

EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS 

Mr. Oglesby requested medical and temporary disability benefits for an injury on 

September 4, 2017. UPS denied his claim on grounds that he violated a safety rule. The 

Court heard the contested issues at an Expedited Hearing on April 6, 2018, and holds 

UPS failed to establish it would likely prevail on its defense at a hearing on the merits. 

Thus, the Court holds Mr. Oglesby is entitled to medical benefits but finds he did not 

present sufficient evidence to prove entitlement to temporary disability benefits at this 

time. 

History of Claim 

Mr. Oglesby was a plant engineering mechanic for UPS. On September 4, he 

attempted to repair a stopped conveyor belt on an unloader machine. The power to the 

unloader was on, but the belt was not moving. An illuminated belt-tracking light on the 

control panel indicated the conveyor belt was off track. He noted the conveyer belt was 

misplaced further off track than other belts he had seen. He concluded the conveyer belt 

stopped because it had tracked off line. 

Mr. Oglesby elected to adjust the pulley located underneath the front of the 

unloader to center the belt to track properly. The unloader was powered up and had the 

ability to run, so Mr. Oglesby chose to perform a live (power on) tracking repair to see 

the belt run as he adjusted the pulley. Mr. Oglesby stated that he asked a hub operations 

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manager, Nate Barker, to stand by the power disconnect panel to turn the unloader off 

during repair if necessary. 1 He lay on his back and removed a guard to determine where 

to make the belt adjustments.2 The belt began to move and pulled Mr. Oglesby's right 

arm into the unloader. Mr. Barker heard Mr. Oglesby's scream and hit the disconnect 

switch. 

Rodney Robinson, UPS's facility engineering manager, described Mr. Oglesby as 

a good safety-consciou employee but testified that he should ha e powered off the 

unloader while he inspected it. 3 Mr. Oglesby could then have elected to turn on the 

machine and perform a live conveyor repair if necessary. Mr. Robinson acknowledged 

UPS's safety rules did not require an employee to turn off the unloader before performing 

a live repair. Mr. Robinson testified that once Mr. Oglesby determined what he needed to 

repair the conveyer, "it's his discretion whether it's a live conveyor repair." 

Mr. Robinson further testified he visited Mr. Oglesby in the hospital where Mr. 

Oglesby told him that he reached for debris "and the next thing he knew, he was hung in 

the machine." Mr. Oglesby did not recall that exchange with Mr. Robinson and denied he 

grabbed debris while beneath the unloader. Mr. Robinson said he did not see paper or 

debris at the scene. 

Mr. Robinson sent an email to UPS's human resources and his management team 

regarding Mr. Oglesby's admission. Mr. Robinson testified that UPS determined the belt 

stopped because the belt tracking switch activated, but UPS did not know what activated 

the switch. Andy Holliman, plant engineering supervisor, testified by deposition that, in 

his opinion, a live conveyor repair cannot be performed on a nonmoving conveyor belt. 

However, he did not see Mr. Oglesby working on the conveyor belt on September 4, and 

he agreed he did not know why the conveyor stopped. 

Nate Barker testified he saw Mr. Oglesby initially disconnect the power from the 

unloader, then reconnect the power before he began his repair. 4 Mr. Barker was standing 

near the emergency disconnect button when he heard Mr. Oglesby scream and 

immediately hit the emergency stop to turn off the unloader. 

1 Nate Barker denied Mr. Oglesby asked him to stand by the power disconnect. UPS argued Nate Barker 

did not know about live conveyor repair but conceded he was a member of management. 

2 Mr. Ogelsby used a key he was authorized to carry to unlock the machine guard. 

3 Mr. Robinson testified in person at trial, and his deposition, containing twenty-one exhibits, was 

introduced into evidence. The Court reviewed the deposition, considered all objections, and accepted all 

testimony and exhibits in reaching its decision. 

4 Mr. Oglesby testified he did not remember disconnecting the power from the unloader or Mr. Barker 

asking him if he intended to disconnect the power before returning underneath the unloader. 

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UPS denied Mr. Oglesby's claim, asserting he willfully violated a safety rule when 

he failed to "lock out and tag out," which means he failed to power-off the machine 

before crawling underneath it. UPS contended that violation of this rule barred Mr. 

Oglesby's claim. 

For his part, Mr. Oglesby asserted he was performing a "live conveyor repair" 

under UPS' safety policy and procedures, consistent with his experience and training. He 

testified this routine repair allowed him to inspect the conveyor belt as he adjusted the 

pulley to move the belt on line. 

Findings of Fact and Conclusions of Law 

Standard applied 

The parties stipulated the injury occurred at work. 

UPS bears the burden of proof on the essential elements of its affirmative defense. 

Roper v. Allegis Group, 2017 TN Wrk. Comp. App. Bd. LEXIS 14 (Feb. 10, 2017). It 

must present sufficient evidence from which this Court might determine it is likely to 

prevail on its defense at a hearing on the merits. 

Misconduct defense 

Tennessee Code Annotated section 50-6-110(a)(4) (2017) provides that no 

compensation shall be allowed for an injury due to an employee's "willful failure or 

refusal to use a safety device." After careful consideration, the Court holds UPS is 

unlikely to meet its burden of establishing all elements of this defense at a hearing on the 

merits. 

In Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442 (Tenn. 2012),5 the Supreme 

Court held that an employer must prove the following to prevail on a safety rule defense: 

(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 for 

violating the rule. ld. at 453. 

Here, the proof shows that UPS trained Mr. Oglesby in all areas of its policies and 

procedures, which included lock out/tag out and live tracking repairs. UPS provided him 

with training materials and courses related to maintenance and tracking repairs. Mr. 

Oglesby acknowledged his extensive training through UPS. He diagnosed the belt 

tracking issue without having to turn off the unloader. Mr. Oglesby intended to perform a 

5 The Appeals Board cited Mitchell v. Fayetteville Pub. Utils. as applicable to cases under the Reform Act 

of 2013 in Gonzales v. ABC Prof' l Tree Servs., 2014 TN Wrk. Comp. App. Bd. LEXIS 2 (Nov. 20, 

2014). The Mitchell Court also noted that the violation of a safety rule is analogous to willful failure to 

use a safety device. 368 S.W.3d at 453. 

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"live conveyor repair" under UPS's safety policy and procedures, consistent with his 

experience and training. Mr. Robinson acknowledged that UPS's rules do not require that 

an employee turn off the unloader to make this repair and that the decision to undertake a 

live conveyor repair is discretionary. 

Based on this evidence, the Court cannot conclude that Mr. Oglesby violated a 

safety rule. To the contrary, at this time, the evidence shows he performed the task in an 

acceptable manner. The evidence is insufficient to show that Mr. Oglesby intentionally 

violated a safety rule. 

Thus, the Court holds UPS failed to establish it would likely prevail on its defense 

at a hearing on the merits and that Mr. Oglesby has shown he is likely to prevail at a 

hearing on the merits regarding his claim for benefits. 

Medical Benefits 

Having found Mr. Oglesby is likely to prevail at a hearing on the merits, the Court 

holds he is entitled to medical benefits in accordance with Tennessee Code Annotated 

section 50-6-204 (2017). Therefore, UPS "shall furnish [Mr. Oglesby] ... such medical 

and surgical treatment ... made reasonably necessary by [his] accident[.]" Tenn. Code 

Ann.§ 50-6-204(a)(l)(A). In addition to payment of medical bills incurred to date, UPS 

shall furnish Mr. Oglesby a panel of physicians competent to treat his injuries related to 

the claim. 

Temporary Disability Benefits 

To establish entitlement to temporary disability benefits, Mr. Oglesby must show 

(1) he became disabled from working 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. Crencor, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at 

*7 (Dec. 11, 2015). 

Here, Mr. Oglesby did not establish the time he was unable to work because of his 

injury. Therefore, the Court finds Mr. Oglesby did not present sufficient evidence to 

demonstrate his entitlement to temporary disability benefits at this time. The Court notes 

that Mr. Oglesby sustained a substantial right arm injury and has not yet returned to 

work. Therefore, the parties may determine the amount of temporary disability benefits to 

which Mr. Oglesby is entitled. Otherwise, Mr. Oglesby may file a request for hearing to 

present proof to the Court related to this issue. 

IT IS, THEREFORE, ORDERED as follows: 

1. UPS shall pay for medical treatment incurred to date and provide Mr. Oglesby with a 

panel of physicians pursuant to Tennessee Code Annotated section 50-6-204. 

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2. Mr. Oglesby's request for temporary disability benefits is denied at this time. 

3. This matter is set for a Scheduling (Status) Hearing on June 11, 2018, at 10:00 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 may 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 this Order to 

the Bureau by email to WCComplianc .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 may result in a penalty assessment for noncompliance. For questions regarding compliance, please contact the Workers' 

Compensation Compliance Unit via email at WCCompliance.Program@tn.gov. 

ENTERED this the).~ day of May, 2018. 

-~.( , JUDGE DEANA c. SEYMOUR 

Court of Workers' Compensation Claims 

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APPENDIX 

Exhibits: 

1. Affidavit of Edward Oglesby 

2. Medical bills from Regional One Health 

3. 2017 Compliance/CHSP Assessment- Lockout Authorized Employee - DOK 

4. Safe Work Methods- Plant Engineering- Training Form 

5. Certificate of Completion 0193- HS CBT Lockout dated May 24, 2017 

6. CHSP/4: 1 Process Observation Form: PIE Mechanic 

7. Certificate of Completion 0193- HS CBT Lockout dated February 1, 2017 

8. Annual Periodic Inspection and Employee Observation Form 

9. Form C-20 Employer's First Report of Work Injury or Illness 

10. Form C-23 Notice of Denial of Claim for Compensation 

11. Form C-41 Wage Statement 

12. Deposition transcript of Rodney Robinson with exhibits 

· 13. Deposition transcript of Andy Holliman 

14. Deposition transcript of Edward Oglesby 

Technical Record: 

1. Petition for Benefit Determination 

2. Dispute Certification Notice 

3. Request for Expedited Hearing 

4. UPS's Expedited Hearing Submission 

5. Mr. Oglesby's Pre-Hearing Brief 

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2nd

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of this Expedited Hearing Order was 

sent to the following recipients by the following methods of service on this the _ day of 

May 2018. 

Name Certified 

Mail 

William Ryan, 

Employee's Attorney 

Garrett Estep, 

Employer's Attorney 

Via Via Service sent to: 

Fax Email 

X billy@donatilaw .com 

X gestep@farris-law .com 

rum, Clerk 

Court 1 Workers' Compensation Claims 

WC. CourtClerk@tn. gov 

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