Swain, Kenneth v. Standard Candy Company

2016 TN WC 76
CourtTennessee Court of Workers' Compensation Claims
DecidedApril 3, 2016
Docket2015-06-0415
StatusPublished

This text of 2016 TN WC 76 (Swain, Kenneth v. Standard Candy Company) 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
Swain, Kenneth v. Standard Candy Company, 2016 TN WC 76 (Tenn. Super. Ct. 2016).

Opinion

F~ED

April 4, 2016 lN COURT OF WORKERS ' COMPE SATION CLAIMS

TIME 10:26 AM

IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT NASHVILLE

Kenneth M. Swain, ) Docket No.: 2015-06-0415 Employee, ) v. ) State File No.: 48203-2015 Standard Candy Company, ) Employer, ) Chief Judge Kenneth M. Switzer And ) The Hartford, ) Carrier. )

EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS

This case came before the undersigned Workers' Compensation Judge on the Request for Expedited Hearing filed by the employee, Kenneth M. Swain, pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case is whether Mr. Swain sustained a compensable work-related injury while employed by Standard Candy Company. For the reasons set forth below, the Court finds Mr. Swain is entitled to a panel of physicians, but is not entitled to past medical expense reimbursement or past temporary disability benefits. 1

History of Claim

Mr. Swain is a sixty-four-year-old resident of Davidson County, Tennessee. (T.R. 1 at 1.) He worked at Standard as a maintenance mechanic technician. !d.

While at work on January 7, 2015, at approximately 10:45 p.m., Mr. Swain slipped in an oil/water mixture and fell backward on to the floor. Video surveillance captured the fall. (Ex. 6.) Standard does not dispute the fall occurred; rather, it disputes whether Mr. Swain sustained an injury . .Mr. Swain allegedly incurred injuries to the left side of his body, including his left knee, elbow back and head. 2 (T.R. 1 at 1.)

1 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order as an appendix. 2 Mr. Swain testified at the expedited hearing that injuries to his head and lower back resolved and withdrew claims of work-related injury to these areas.

1 The parties presented differing versions of the critical conversations that took place in the hours after the fall. For his part, Mr. Swain testified that after the fall he immediately told his supervisor, Steven Reeder, that:

[I] slipped and fell on the floor, and urn, urn, I hurt my knee, you know, and I -- when I fell I hurt my elbow, which pushed up [and] hurt my shoulder at the same time. But, because I've been-I played sports, which was twenty to thirty years before, which I hadn't taken into account for twenty or thirty years, I said, "It may clear up, but I do want to make a report of this."

On cross-examination, Mr. Swain denied telling Mr. Reeder he was unhurt from the fall, but rather stated he told Mr. Reeder he felt a "zing" go through him, similar to the feeling of getting hit while playing sports. According to Mr. Swain, Mr. Reeder asked him if he wanted to make out a report, and he responded that he wanted to think about it. He then went to the locker room to change clothes because they were wet from falling in liquid. Shortly afterward in the locker room, Mr. Reeder informed Mr. Swain he had to complete an accident report3 and undergo a drug test. Mr. Swain maintained he did not request, nor did Standard offer, medical treatment, even though he reported the injuries.

Mr. Reeder confirmed he spoke to Mr. Swain immediately after the fall, but denied Mr. Swain said he was hurt from the fall or specifically that he hurt his knee. Mr. Swain did not appear to Mr. Reeder to be injured from the fall. According to Mr. Reeder, Mr. Swain spoke to him after the fall merely to report the presence of water on the floor and to inform him that he fell.

The First Report of Injury, completed on July 7, 2015, by Standard's safety manager, John Kessler, stated Mr. Swain fell, but "declined any offsite medical treatment." (Ex. 3.) Standard introduced an email from Mr. Reeder to Mr. Kessler written on January 8, 2015, at 12:04 a.m. to report the fall. (Ex. 9.) The email stated Mr. Swain "said he was not hurt." !d. During the hearing, Mr. Kessler testified company policy requires that "anytime an employee has an injury at work, ah, they are sent for a-a drug test. Urn, it doesn't matter whether they want medical attention or not." Further, drug testing is immediate only if the employee asks for medical treatment, per Mr. Kessler. Standard presented no written policy confirming this testimony. Mr. Swain did not dispute the policy's existence.

3 Standard introduced into evidence a one-page, untitled internal form it uses to document workplace accidents, dated January 7, 2015 and prepared by Mr. Reeder. (Ex. 8.) Instructions for the form indicate that it "does not take the place of Employer's Report of Injury/Illness, which is required by State and Federal Law." (Italics and capitalization in originaL) However, as mentioned later on, Standard did not complete the state form until July 7, 2015 . Standard's form asks if first aid was administered, to which Mr. Reeder wrote, "N/A (None requested)." Mr. Reeder checked the "Yes" box following the statement, "First aid only required, non-recordable injury." He checked the "No" box after "Medical treatment required/physician to indicate if injury recordable."

2 Pursuant to the above-mentioned policy Mr. Swain reported to Concentra Medical Center for a drug test. 4 Testimony revealed he arrived on January 8, 2016 at approximately 7:15a.m. and left at 7:25 a.m. Mr. Swain's urine sample was not within temperature range. The record from the visit was not admitted into evidence, although on cross-examination Mr. Swain read from the document at the request of Standard's counsel. Again, according to Mr. Kessler, based on company policy the "not within temperature range" reading is interpreted as a failed test and thus results in dismissal. Therefore, Standard's human resources staff terminated Mr. Swain.

Mr. Kessler testified he spoke with Mr. Swain upon his return from Concentra and they discussed the urinalysis results, but he denied that Mr. Swain said he injured his elbow or knee or that he needed medical treatment. Mr. Kessler further denied hearing from Mr. Swain at any time from January through May 2015 regarding injuries or a need for treatment. According to Mr. Kessler, he would be in the chain of contact if Mr. Swain had communicated with Standard regarding workplace injuries or a need for medical attention. Mr. Reeder likewise denied Mr. Swain ever called him after the termination or any other time to report a work injury and/or request medical treatment.

Following his dismissal, Mr. Swain's undisputed testimony is he treated his knee with ice and heat and achieved some relief, but the elbow pain worsened and it began to swell. He attempted to visit his primary care physician but was turned away due to past unpaid bills and because he did not have insurance or finances to pay for care. Mr. Swain contended he attempted to contact Standard three times, leaving messages each time, but no one returned his calls. He believed Standard's focus turned from his injury to the perceived failed urinalysis test.

Due to the lack of response, ultimately Mr. Swain reported to the emergency room at Southern Hills Medical Center on February 21, 2015. (Ex. 1 at 2-7.) He complained primarily of left-elbow pain and swelling, and, "The Patient reports falling at work on Jan. 8, and landing on his left elbow. . .. He denies any other pain or injury to other areas." !d. at 2. Dr. Brian Lindsey, D.O. diagnosed olecranon bursitis of the left elbow and elbow injury and released Mr. Swain. Id. at 5. Notes from that visit do not causally connect the work accident and the elbow injury, nor do they mention a left-knee injury or place work restrictions upon Mr. Swain.

4 Considerable testimony revolved around the sequence of events between Mr. Swain's fall and his appearance for drug testing, specifically whether Mr.

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Bluebook (online)
2016 TN WC 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swain-kenneth-v-standard-candy-company-tennworkcompcl-2016.