### FILED May 02, 2018 07:56 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAUOFWORKERS' COMPENSATION INTHE COURT OFWORKERS' COMPENSATIONCLAIMS ATMEMPHIS EDWARD OGLESBY, Employee, 

### v. ) ) ) ) UNITED PARCEL SERVICE. INC., ) Employer, ) And LIBERTYMUTUAL INS. CO., ) ) ) Carrier. DocketNo.: 2017-08-1148

StateFile No.: 68608-2017
JudgeDeana C. Seymour

EXPEDITEDHEARING ORDERFORMEDICALBENEFITS

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. HistoryofClaim 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 offtrack. He noted the conveyer belt was misplaced further offtrack than other belts he had seen. He concluded the conveyer belt stoppedbecause it had tracked offline. 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
1manager, Nate Barker, to stand by the power disconnect panel to turn the unloader off during repair ifnecessary. 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 ifnecessary. Mr. Robinson acknowledged UPS's safetyrules did not require an employee to turn offthe unloader beforeperforming a live repair. Mr. Robinson testified that once Mr. Oglesby determined whathe neededto repairthe conveyer, "it'shis discretion whetherit's a live conveyorrepair." 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 notrecall that exchange withMr. Robinson and denied he grabbed debris while beneath the unloader. Mr. Robinson said he did not see paper or debris atthe 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 agreedhe 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 hitthe emergency stop to turn offthe unloader.

1Nate Barker denied Mr. Oglesby asked him to stand by the power disconnect. UPS argued Nate Barker did not know about live conveyorrepairbut conceded he was a member ofmanagement.

2Mr. Ogelsby used a key he was authorizedto carryto unlockthe 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 ifhe intended to disconnectthe powerbefore returning underneath the unloader.

2UPS denied Mr. Oglesby's claim, asserting he willfully violated a safetyrule 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' safetypolicy 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 ofFact and Conclusions ofLaw Standardapplied The parties stipulatedthe injury occurred atwork. UPS bears the burden ofproofon the essential elements ofits 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 ahearing onthe 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 ofestablishing all elements ofthis defense at a hearing on the merits.InMitchellv. FayettevillePub. Utils., 368 S.W.3d442 (Tenn. 2012),5the Supreme Courtheld that an employer mustprove the following to prevail on a safetyrule defense: (1) the employee's actual, as opposed to constructive notice of the 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 of a valid excuse for violatingthe rule. ld. at453. Here, the proofshows that UPS trained Mr. Oglesby in all areas ofits 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 offthe unloader. Mr. Oglesby intended to perform a

5The Appeals Board citedMitchell v. Fayetteville Pub. Utils. as applicableto cases underthe Reform Act of2013 in Gonzales v. ABCProf' l Tree Servs., 2014 TN Wrk. Comp. App. Bd. LEXIS 2 (Nov. 20, 2014). The Mitchell Court also noted that the violation ofa safety rule is analogous to willful failure to use a safety device. 368 S.W.3d at 453. 3"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 offthe unloader to make this repair and that the decision to undertake a live conveyorrepair 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 safetyrule. 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 onthe merits regardinghis claim for benefits. MedicalBenefits 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 ofmedical bills incurred to date, UPS shall furnish Mr. Oglesby a panel ofphysicians competent to treat his injuries related to the claim. TemporaryDisabilityBenefits 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 ofhis disability. Jones v. Crencor, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). Here, Mr. Oglesby did not establishthe time he was unable to workbecause ofhis 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 oftemporary disability benefits to which Mr. Oglesby is entitled. Otherwise, Mr. Oglesby may file a request for hearing to presentproofto the Courtrelatedto this issue. ITIS, THEREFORE, ORDERED as follows: 1. UPS shall pay for medical treatment incurred to date and provide Mr. Oglesby with a panel ofphysicians pursuantto Tennessee Code Annotated section 50-6-204.

42. Mr. Oglesby's request for temporary disability benefits is denied atthis 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 withoutyourparticipation. 4. Unless interlocutory appeal ofthe Expedited Hearing Order is filed, compliance with this Order must occur no later than seven 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 Employer must submit confirmation ofcompliance with this Order to the Bureau by email to WCComplianc .Program@tn.gov no later than the seventh business day after entry ofthis 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 ComplianceUnitviaemail at WCCompliance

.Program@tn.gov.

ENTEREDthis

## the**).~** day ofMay, 2018.

# -~.(**,** JUDGE DEANA

## c. SEYMOUR CourtofWorkers' Compensation Claims

5APPENDIX

Exhibits: 1. Affidavit ofEdward Oglesby 2. Medical bills from Regional One Health 3. 2017 Compliance/CHSPAssessment- LockoutAuthorizedEmployee

- DOK 4. Safe Work Methods- Plant Engineering- TrainingForm 5. Certificate ofCompletion 0193- HS CBTLockout dated May 24, 2017 6. CHSP/4: 1Process ObservationForm: PIEMechanic 7. Certificate ofCompletion 0193- HS CBTLockout dated February 1, 2017 8. Annual Periodic Inspection and Employee ObservationForm 9. Form C-20 Employer's FirstReport ofWorkInjury orIllness 10.Form C-23 Notice ofDenial ofClaim for Compensation 11.FormC-41 Wage Statement 12.Depositiontranscript ofRodney Robinson with exhibits

· 13.Depositiontranscript ofAndy Holliman

14.Depositiontranscript ofEdward Oglesby

Technical Record: 1. Petition for BenefitDetermination 2. Dispute CertificationNotice 3. Request for Expedited Hearing 4. UPS'sExpedited Hearing Submission 5. Mr. Oglesby's Pre-HearingBrief

6CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthis Expedited Hearing Order was sent to the following recipients by the following methods ofservice on this the

_ day of May 2018. Name Certified Mail WilliamRyan, Employee's Attorney GarrettEstep, Employer's Attorney Via Via Service sentto: 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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