Tuznik, Olivia v. Pump It Up

2023 TN WC 44
CourtTennessee Court of Workers' Compensation Claims
DecidedJune 5, 2023
Docket2022-08-1220
StatusPublished

This text of 2023 TN WC 44 (Tuznik, Olivia v. Pump It Up) 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
Tuznik, Olivia v. Pump It Up, 2023 TN WC 44 (Tenn. Super. Ct. 2023).

Opinion

FILED Jun 05, 2023 11:01 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT MEMPHIS

OLIVIA TUZNIK, ) Docket No. 2022-08-1220 Employee, ) v. ) PUMP IT UP, ) State File No. 73085-2022 Employer, ) And ) AMGUARD INSURANCE CO., ) Judge Shaterra R. Marion Carrier. ) )

EXPEDITED HEARING ORDER GRANTING BENEFITS AND DENYING ATTORNEY’S FEES

The Court held an Expedited Hearing on May 22, 2023, to determine whether Ms. Tuznik is entitled to medical and temporary disability benefits for her right-hand injury. Ms. Tuznik also seeks attorney’s fees for wrongful denial of her claim. The Court finds that Ms. Tuznik is likely to prove at a hearing on the merits that her hand injury occurred in the course and scope of her employment, entitling her to benefits, but declines to award attorney’s fees at this time.

History of Claim

On October 7, 2022, Ms. Tuznik came up behind a co-worker, startled her, and the co-worker then sprayed Ms. Tuznik in the eyes with cleaning solution. Ms. Tuznik backed up, hit a helium tank, and it fell, crushing her right hand. Pump It Up denied the claim based on horseplay and deviation from employment.

Ms. Tuznik suffered a partial amputation of one finger and multiple fractures in three fingers. Her treatment with Dr. Jake Weller has included imaging, multiple surgeries, placing and removing multiple pins, and physical therapy. Dr. Weller wrote that the helium tank falling on Ms. Tuznik’s hand caused her injury and need for treatment.

1 On the night of the accident, Ms. Tuznik worked alongside a new trainee. She testified that they completed their party responsibilities, and the trainee was simply watching the children eat. Ms. Tuznik went to help clean another room connected to the room with the trainee by a closed door. Because they were closing for the night, everything needed to be cleaned before the employees went home. Normally employees would clean dirty rooms even if that room was not assigned to them. As Ms. Tuznik headed to the supply closet to get a vacuum, she saw her coworker enter the closet and decided to scare her.

Ms. Tuznik described Pump It Up as a fun place to work. She testified to and presented videos of employees having scaring competitions with each other, playing in large buckets, playing with candles, climbing on trash cans, laughing while using knives to pop balloons, and playing with a security guard’s handcuffs. She stated that this playful behavior was routine at Pump It Up. She could not recall anyone getting written up or reprimanded due to these behaviors.

Kaya Johnson, Ms. Tuznik’s supervisor, testified that a few months before the injury, she advised Ms. Tuznik not to scare people anymore. She further said that if she saw Ms. Tuznik attempting to scare someone, she would reprimand Ms. Tuznik, inform the owner, and write her up. Ms. Johnson testified that she had been provided with an employment handbook, but she was not sure if it outlined disciplinary procedures.

Ms. Johnson saw Ms. Tuznik engaging in horseplay between the first incident and the date of injury and told Ms. Tuznik not to do it and to return to work. Ms. Johnson said she believed Ms. Tuznik was violating orders to not engage in that sort of behavior at the time of the injury. However, she could not recall if a rule exists related specifically to horseplay, and she never informed the owner of any problems with Ms. Tuznik and horseplay.

Ms. Johnson stated she was aware of a security guard who played with handcuffs, but no employees were disciplined for handcuffing or any other horseplay. Additionally, videos were presented showing Ms. Johnson wearing a dinosaur mask walking into a room to scare another employee, stabbing balloons with a butcher knife, and spinning Ms. Tuznik in a large bin.

Stephanie Woods, owner of Pump It Up, testified that Ms. Tuznik did not have any disciplinary write-ups in her file, although she had spoken with her about scaring people. She further testified that Ms. Tuznik had begun supervisor training and was a good employee.

Ms. Woods said that the employee handbook contained language about horseplay. However, Ms. Tuznik testified she did not receive the handbook or a safety manual, and Ms. Woods admitted she did not have a signature page showing that Ms. Tuznik was given

2 a handbook. Ms. Woods could not testify as to the disciplinary process for horseplay, though she said that she gives “a couple” verbal warnings before writing up an employee. She outlined situations where employees were written up in the past, including for being late to work, not showing up, and wearing the wrong kind of shoes. However, she did not offer an example of write-ups for horseplay.

Ms. Woods testified that Ms. Tuznik was training a new employee on the date of injury and that she expected Ms. Tuznik to stay with the trainee as opposed to cleaning a separate room. However, she acknowledged that sometimes employees do leave their posts to clean other areas.

Dr. Weller stated he would have taken Ms. Tuznik off work for two weeks after her October 13, 2022 surgery, then would have returned her to work with restrictions. He placed her work status as “weightbearing as tolerated” effective May 9, 2023. Ms. Woods testified that she could accommodate Ms. Tuznik’s light-duty work restrictions and contacted her in November 2022 about returning to work. According to Ms. Woods, Ms. Tuznik could answer calls, work on the computer, and continue parts of supervisor training. Ms. Tuznik testified that she could have taken pictures of the customers or greeted people while the pins were in her fingers.

Gerard Tuznik, Ms. Tuznik’s father, testified that he and/or his personal health insurance paid for Ms. Tuznik’s treatment. He paid approximately $6,400.00. Further, they traveled approximately thirty-four miles roundtrip forty-nine times to transport Ms. Tuznik for medical treatment.

The parties agreed that Ms. Tuznik’s compensation rate is $168.15.

Findings of Fact and Conclusions of Law

Ms. Tuznik has the burden to come forward with sufficient evidence from which the trial court can determine she is likely to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

Course and Scope of Employment

Ms. Tuznik must prove she is likely to prevail at a hearing on the merits that her hand injury arose primarily out of and in the course and scope of her employment. Tenn. Code Ann. § 50-6-239(d)(1) (2022). Pump It Up argued that Ms. Tuznik’s actions were a deviation from her work activities and fell outside the course and scope of her employment.

An injury occurs in the course and scope of employment if it takes place “within the period of the employment, at a place where the employee reasonably may be, and while

3 the employee is fulfilling work duties or engaged in doing something incidental thereto.’” Blankenship v. Am. Ordnance Sys., 164 S.W.3d 350, 354 (Tenn. 2005). Arising out of employment refers to causation. Reeser v. Yellow Freight Sys., Inc., 938 S.W.2d 690, 692 (Tenn. 1997). An injury arises out of employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. Fritts v. Safety Nat’l Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005).

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Cite This Page — Counsel Stack

Bluebook (online)
2023 TN WC 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tuznik-olivia-v-pump-it-up-tennworkcompcl-2023.