Johnson, Garry Wayne v. Alloy Fabrication, Inc.

2016 TN WC 254
CourtTennessee Court of Workers' Compensation Claims
DecidedOctober 27, 2016
Docket2016-03-0301
StatusPublished

This text of 2016 TN WC 254 (Johnson, Garry Wayne v. Alloy Fabrication, Inc.) is published on Counsel Stack Legal Research, covering Tennessee Court of Workers' Compensation Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson, Garry Wayne v. Alloy Fabrication, Inc., 2016 TN WC 254 (Tenn. Super. Ct. 2016).

Opinion

FILED Oct.ober 27.• 2016

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TENNESSEE BUREAU OF WORKERS' COMPENSATION IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT KNOXVILLE

GARRY WAYNE JOHNSON, ) Docket No.: 2016-03-0301 Employee, ) v. ) ALLOY FABRICATION, INC., ) State File No.: 997-2016 Employer, ) And ) AMERICAN INTERSTATE INS. CO., ) Judge Pamela B. Johnson Carrier. )

EXPEDITED HEARING ORDER

This matter came before the undersigned Workers' Compensation Judge on September 21, 2016, on the Request for Expedited Hearing filed by the Employee, Garry Johnson, pursuant to Tennessee Code Annotated section 50-6-239 (2015). The central legal issue 1 is whether Mr. Johnson's January 6, 2016 injury is compensable under the Workers' Compensation Law in light of the defenses raised pursuant to Tennessee Code Annotated section 50-6-110(a)(l)(willful misconduct), 2 (4) (willful failure to use a safety device), and (5) (willful failure to perform a duty required by law) (2015) by the Employer, Alloy Fabrication, Incorporated, and its carrier, American Interstate Insurance Company. Under section 50-6-11 O(b ), the burden of proof shifts to Alloy to establish the defenses raised. For the reasons set forth below, the Court holds Alloy failed to present sufficient evidence demonstrating that it is likely to prevail at a hearing on the merits that Mr. Johnson's injury is not compen ab le purs uant to ection 50-6-110(a). 3 Accordingly,

1 The parties submitted an Agreed Order entered September 15, 2016, and announced their agreement to limit the issue for resolution at the Expedited Hearing to the "compensability of the claim in light of the defenses raised pursuant to TCA § 50-6-llO(a)(l), (4) and (5). All other matters raised by the dispute certification notice are to be held in abeyance for the hearing at another time, pending the outcome of the issued to be determined on September 21, 2016." 2 Alloy admitted that it was currently unaware of sufficient facts to prove Mr. Johnson's willful misconduct as required by section 50-10-11 O(a)(l )-willful misconduct, and chose to focus its argument on subsections (4)-failure or refusal to use a safety device, and (5)-failure to perform a duty required by law. 3 The attached Appendix contains a complete listing of the technical record and exhibits admitted at the Expedited Hearing.

1 based upon the evidence presented at this time, this Court concludes Mr. Johnson is likely to prevail at a hearing on the merits that his January 6, 2016 injury is compensable under the Workers' Compensation Law.

History of Claim

The following facts were established through the evidence presented at the Expedited Hearing. Mr. Johnson is a sixty-six-year-old resident of Anderson County, Tennessee and worked for Alloy as a laborer. Alloy manufactures industrial boilers for the food industry.

On January 6, 2016, Mr. Johnson used a scissor lift to reach the top of a boiler, twenty feet in height and six feet in diameter. He exited the scissor lift to work atop the boiler. As he turned to step back into the scissor lift, he fell to the ground and suffered serious injuries. Mr. Johnson does not recall his fall; the last thing he remembers is being in the scissor lift. Charles Milani, a coworker, witnessed Mr. Johnson's fall and testified as to Mr. Johnson's movements prior to and at the time of his fall. 4

At the time of the fall, Mr. Johnson was not wearing a safety harness. As such, the focus of the testimony was whether Alloy required Mr. Johnson to wear a safety harness while working atop the boiler; and if so, whether his failure to wear a safety harness at the time of his fall resulted from his willful failure to use a safety device and/or willful failure to perform a duty required by law under section 50-6-110(a)(4), and (5).

Concerning the safety requirement purportedly violated by Mr. Johnson, Steve Irons, Vice-President of Alloy, testified that Alloy required its employees to take proper steps to insure their safety while working at an elevation above six feet. Mr. Irons explained employees were not required to wear a safety harness and tie-off while working inside the scissor lift due to its enclosure. However, he stated it was "general common sense" for employees to use a safety harness and tie-off while working at heights outside the scissor lift. Mr. Irons indicated he corrected safety violations when observed, but he could not recall disciplining any employee for failing to tie-off when working at an elevation above six feet. He went on to later testify, "I don't enforce these rules ... I can't say that it was drilled into their head."

Tina Headrick, Secretary and Safety Coordinator at Alloy, testified she conducted monthly safety meetings with Alloy employees. She stated that prior to Mr. Johnson's 4 Counsel for Mr. Johnson moved to introduce the Affidavits of Garry Johnson and Charles Milani, and counsel for Alloy objected on grounds of hearsay. The Court took the matter under advisement. Considering that both Mr. Johnson and Mr. Milani were present and testified at the hearing and subject to cross-examination, this Court sustains Alloy's objection. Counsel for Alloy later moved to introduce an audio recording of Mr. Milani's Recorded Statement, and counsel for Mr. Johnson objected on grounds of relevance. This Court sustained the objection during the hearing. Accordingly, this Court did not consider the Affidavits of Garry Johnson and Charles Milani and the Audio Recording of Mr. Milani when making its findings of fact or reaching its conclusions of law.

2 fall, she did not specifically address the requirement to use a safety harness and tie-off when working at elevation of six feet or higher during any of the monthly safety meetings. She further stated she did not know at what elevation Alloy employees were required to use a safety harness and tie-off. She also testified that she did not know whether Alloy employees were told to be tied-off at any given elevation. She testified that, if Mr. Johnson were working at an elevation outside the scissor lift, he should have known that he needed to use a safety harness and tie-off based on the elevation and common sense.

Mr. Milani and Mr. Johnson testified that, while Dow Chemical required Alloy employees to wear a safety harness and tie-off when working above four feet on its site, Alloy employees were not required to wear safety harnesses and tie-off when working on Alloy's premises prior to Mr. Johnson's fall. Mr. Milani testified he observed Alloy employees working every day above six feet without a harness and he never saw anyone disciplined prior to Mr. Johnson's fall. Mr. Johnson testified that he probably worked on seventy-five to one hundred boilers over the twenty-six years he worked at Alloy, he regularly worked above six feet, he was never told to wear a safety harness and tie-off, and he was never disciplined for not wearing a safety harness and tying-off.

Regarding knowledge and enforcement of the safety requirement, Mr. Irons testified Alloy created a safety manual at the recommendation of the insurance carrier, and the manual was in effect at the time of Mr. Johnson's fall. Mr. Irons could not state whether the safety manual was provided to Alloy employees when hired. Ms. Headrick testified that she did not think Alloy has a safety manual signed by Mr. Johnson. Mr. Johnson testified he never saw the safety manual prior to the hearing. Mr. Irons and Ms. Headrick testified that the requirement to wear a safety harness and tie-off at elevations above six feet was not contained in the manual. Mr. Irons and Ms. Headrick confirmed that Alloy did not discipline Mr. Johnson for his failure to use a safety harness and tie- off.

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2016 TN WC 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-garry-wayne-v-alloy-fabrication-inc-tennworkcompcl-2016.