FILED
Oct 21, 2020
03:44 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
JOSHUA MASK, ) Docket No. 2019-07-0281
Employee, )
v. )
HILL’S TRUCKING, INC., ) State File No. 96546-2016
Employer, )
and )
TECHNOLOGY INS. CO., ) Judge Amber E. Luttrell
Carrier. )
COMPENSATION ORDER
The Court held a Compensation Hearing on September 24, 2020, on Mr. Mask’s
claim for workers’ compensation benefits for a pelvic injury. Hill’s Trucking contended
Mr. Mask’s claim is barred based on willful misrepresentation of his diabetes and/or willful
violation of a safety rule. For the reasons below, the Court holds Hill’s Trucking did not
prevail on its defenses. Thus, Mr. Mask’s claim is compensable, and the Court awards him
seven-percent permanent partial disability and open future medical benefits.
History of Claim
Mr. Mask worked as a truck driver for Hill’s Trucking. On May 4, 2016, he was
traveling home from a second consecutive trip to Arkansas when he crashed his truck. He
testified he did not remember how the accident occurred because of a concussion resulting
from it. The Highway Patrol’s report stated Mr. Mask ran off the road and then
overcorrected and overturned the truck. Hill’s Trucking did not provide treatment or
immediately report the accident to its insurance carrier.
Mr. Mask suffered injuries to his pelvis, hands, and back, and he required
emergency treatment. He underwent pelvic surgery.1 He later saw Dr. Samuel Chung at his
attorney’s request for an independent medical evaluation. Dr. Chung prepared a report and
1
Mr. Mask did not introduce records of his medical treatment or bills into evidence.
1
Form C-32, concluding that Mr. Mask reached maximum medical improvement on March
7, 2017, and his injuries arose primarily out of the work accident. He did not address Mr.
Mask’s work status in the C-32. He assigned a seven-percent permanent impairment. Hill’s
Trucking offered no conflicting expert testimony and stipulated to Dr. Chung’s impairment
rating if the Court found Mr. Mask had a compensable claim.
Hearing testimony
Mr. Mask
Mr. Mask testified he was diagnosed with diabetes when he was a teenager, and he
started insulin.2 He stated there have been times when he took pills to manage his diabetes
instead of insulin over the years.
Mr. Mask testified he completed a truck driving course and obtained his commercial
driver’s license (CDL) in 2012. He agreed he was trained to follow Department of
Transportation guidelines. During his physical, he told the physician he was a type-two
diabetic. He acknowledged on cross-examination that he knew type-one diabetes could
preclude him from driving. He testified he started taking pills for his diabetes at the time
he obtained his CDL.
Mr. Mask denied knowingly or willfully making false statements to Hill’s Trucking
regarding his physical condition when he applied for employment in January 2016. He
testified he first spoke to Mr. Hill by phone about the job and told him he had diabetes
during that conversation. He stated Mr. Hill said he was a diabetic, too, and as long as Mr.
Mask knew how to control his condition, “it’s ok.” Mr. Mask stated he managed his
diabetes with pills at the time and was not insulin-dependent. Two days later, he met with
Vicky Hill to fill out the application.3 The application did not request medical information.
Mr. Mask testified to a second conversation he had with Hill’s Trucking regarding
his diabetes. He stated that after he started working for them, he was not feeling well due
to low blood sugar during a trip to Texas, and his mother contacted Mr. or Ms. Hill urgently
trying to get help for him. After he returned from the trip, he stated he met with the Hills
and discussed his diabetes and that he needed to keep snacks with him in the truck to control
it.
On cross-examination, Mr. Mask acknowledged he has “passed out” in the past
related to his diabetes, but he denied ever doing so while driving a truck.
2
The evidence contains discrepancies as to whether Mr. Mask is a type-one or type-two diabetic. In Mr.
Mask’s pre-trial brief, he stated he was type-one diabetic. However, he testified he told the medical provider
at his physical that he was a type-two diabetic, and Dr. Chung’s record stated he reported he was a type-
two diabetic.
3
Mr. Mask testified he completed the application himself except for the fact that someone else signed his
name to the last page entitled “Fit for Duty.” Ms. Hill testified she later signed his name to that page.
2
Nathaniel and Vicky Hill
Mr. Hill owns and operates Hill’s Trucking, and his daughter, Vicky, dispatches
trucks and handles paperwork and billing. They both testified they comply with
Department of Transportation guidelines. Mr. Hill stated he is somewhat familiar with the
guidelines. Ms. Hill keeps a copy of DOT guidelines in her office. Hill’s Trucking
introduced a document entitled “Fleet Safety Compliance Manual,” which Ms. Hill
testified provides physical qualifications for drivers. The manual requires that drivers have
“no established medical history or clinical diagnosis of diabetes mellitus currently
requiring insulin for control.”
Mr. Hill acknowledged he is diabetic but does not take insulin. He did not recall
talking to Mr. Mask about diabetes when he hired him and stated he learned of it after his
accident.
Ms. Hill also denied knowledge of Mr. Mask’s diabetes until after his accident. They
both testified they would not have hired him had they known. Ms. Hill did not recall
meeting with Mr. Mask about his diabetes, but she did remember his mother calling them
urgently trying to reach Mr. Mask. She stated she did not know the reason and did not ask.
Finally, Ms. Hill testified regarding her conversation with Mr. Mask when they
reviewed his application. She discussed the company’s expectations regarding punctuality,
communication with the office, and customer service. She testified Mr. Mask provided a
Medical Examiner’s Certificate showing he passed the physical qualifications to drive a
truck. (Ex. 6.)
Findings of Fact and Conclusions of Law
At a Compensation Hearing, Mr. Mask must establish by a preponderance of the
evidence that he is entitled to the requested benefits. Willis v. All Staff, 2015 TN Wrk.
Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-
239(c)(6) (2019).
The Court first considers Hill’s Trucking’s central argument that Mr. Mask’s claim
is barred based on his alleged willful misrepresentation of his diabetes during the
application process. In Federal Copper and Aluminum Company v. Dickey, 493 S.W.2d
463, 464 (Tenn. 1973), the Tennessee Supreme Court decided that a willful
misrepresentation defense existed in workers’ compensation cases and adopted the
following test for its application:
(1) The employee must have knowingly and willfully made a false
representation as to his physical condition; (2) the employer must have relied
upon the false representation and this reliance must have been a substantial
factor in the hiring; and (3) there must have been a causal connection between
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the false representation and the injury.
Id. at 465.
Regarding the first and second Dickey factors, the Hills testified that Mr. Mask did
not disclose he was a diabetic at the time he was hired. They said they would not have hired
Mr. Mask had he done so because DOT guidelines in the Fleet Safety Compliance Manual
mandate that a driver have “no established medical history or clinical diagnosis of diabetes
mellitus currently requiring insulin for control.”
Mr. Mask countered that the Hills were aware of his diabetes because he discussed
it with Mr. Hill in their first call about the job and later in a meeting after he experienced
low blood sugar on the road. Mr. Mask further contended he did not require insulin at the
time he was hired because he was taking pills.
As to the third prong, the Hills argued they established a connection between Mr.
Mask’s diabetes and the accident. Mr. Mask disagreed.
The Court holds Hill’s Trucking did not satisfy the requirements of its willful
misrepresentation defense. Mr. Mask testified without contradiction that he was not
insulin-dependent at the time he was hired. He said he took pills to manage his condition
at that time. The DOT rule on which the Hills relied in support of their testimony only
precludes hiring a driver currently requiring insulin for control of his diabetes.
Further, the Court credits Mr. Mask’s testimony that the Hills knew of his diabetes
at the time he was hired. The fact that Mr. Mask knew that Mr. Hill also had diabetes and
gave details of the conversation reasonably supports his version of the call where Mr. Mask
and Mr. Hill discussed their diabetes. Further, Ms. Hill recalled Mr. Mask’s mother
urgently calling to reach Mr. Mask while he was on a trip. The Court finds unconvincing
her testimony that Mr. Mask’s mother did not tell her why she urgently needed to reach her
son and she never asked Mr. Mask’s mother about the urgent need for the call.
Lastly, the Hills introduced no medical proof establishing a causal connection
between Mr. Mask’s diabetes and his injury. The only proof concerning the accident was
Mr. Mask’s uncontroverted testimony that he could not remember the accident due to a
concussion, and the accident report, which showed he ran off the road and overturned the
truck. Hill’s Trucking argued that because Mr. Mask could not explain the accident and he
acknowledged he has “passed out” in the past due to his diabetes, the Court could presume
Mr. Mask’s condition caused the accident and his resulting injuries. The Court declines to
speculate as to a causal connection between Mr. Mask’s diabetes and his injury. Without
proof to satisfy this factor, the willful misrepresentation defense fails.
Hill’s Trucking next argued, in general terms, that Mr. Mask’s claim for workers’
4
compensation benefits is barred based on willful misconduct for violation of its safety
rules. Under Tennessee Code Annotated 50-6-110(b), the burden of proof falls on Hill’s
Trucking to establish this affirmative defense. To prevail, it must show: “(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.” Further, before this test becomes applicable, it must be shown there was an actual
violation of a rule. Burnett v. Builders Transp., 2018 TN Wrk. Comp. App. Bd. LEXIS 5,
at *11 (Feb. 8, 2018) (“It stands to reason that the existence of a violation must occur to
successfully invoke this defense.”).
Hill’s Trucking argued in its brief that it required drivers to be physically fit to drive
a commercial truck under DOT regulations. It contended Mr. Mask knew of the danger
posed by driving a truck “without being physically qualified to do so” from his training
course, and that Ms. Hill established the company’s bona fide enforcement of the rule by
reviewing the application with Mr. Mask and discussing expectations. Finally, Hill’s
Trucking contended Mr. Mask had no valid excuse for driving a truck when he was not
physically qualified to do so.
The Court finds Hill’s Trucking’s proof insufficient to prevail in this defense
because they failed to prove that Mr. Mask violated a rule at the time of the accident. Hill’s
Trucking’s contention appears to be that Mr. Mask violated the rule prohibiting drivers
with diabetes requiring insulin from driving. However, there was no proof that Mr. Mask
was insulin-dependent at the time of his accident. He testified he took pills to manage his
condition when he applied with Hill’s Trucking four months before the accident. Yet, he
offered no proof regarding his diabetes management at the time of his accident. As stated
above, under the rule cited by Hill’s Trucking, it was not a violation for Mr. Mask to be
driving as a diabetic if he was not “currently requiring insulin for control.” This defense
must fail.4
Even if Hill’s Trucking had established a safety rule violation, the Court finds it still
cannot prevail in its defense. Specifically, Hill’s Trucking did not offer proof as to its bona
fide enforcement of its alleged rule against driving with diabetes. It argued Ms. Hill
established this element in her testimony regarding reviewing the application with Mr.
Mask and discussing the company’s “expectations.” However, Ms. Hill testified the
expectations were for drivers to be punctual, responsive to all calls, and to provide good
customer service. This testimony is insufficient to show Hill’s Trucking’s bona fide
4
The parties testified regarding the time it took Mr. Mask to make two trips to and from Blytheville,
Arkansas to pick up the loads before his accident. To the extent that Hill’s Trucking contends Mr. Mask
violated its safety rules by driving in excess of eleven hours, the Court finds the argument was not made in
its brief or at trial and is waived. In its brief, Hill’s Trucking safety rule violation argument concerned Mr.
Mask’s physical condition, and at trial, it contended, generally, that Mr. Mask was guilty of misconduct for
violating its safety rules.
5
enforcement of its safety rules. Thus, the Court holds it cannot prevail in this defense.
Permanent Disability, Temporary Disability, and Medical Bills
The Court now turns to Mr. Mask’s requested benefits. The Court holds that the
preponderance of the evidence showed he sustained an injury arising primarily out of and
in the course and scope of his employment on May 4, 2016. By stipulation, Mr. Mask’s
permanent disability benefits are calculated on a seven-percent impairment rating at the
weekly rate of $510.58, or $16,083.27.
To prove entitlement to temporary benefits, Mr. Mask must show (1) he became
disabled from working due to a compensable injury, (2) a causal connection between that
injury and his inability to work, and (3) the duration of the period of disability. Jones v.
Crencor Leasing and Sales, TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015).
Dr. Chung marked “na” on the C-32 regarding Mr. Mask’s work status, and Mr. Mask
introduced no medical proof to satisfy these factors.
Mr. Mask also requested payment of his outstanding medical bills for treatment of
his alleged injury. However, he did not introduce any medical records or bills into evidence.
For this reason, the Court holds that Mr. Mask did not show that he is entitled to his past
medical expenses, and his request is denied. The Court holds, however, that Hill’s Trucking
must provide future medical benefits for Mr. Mask’s compensable injury under the statute.
Finally, the Court holds Mr. Mask’s attorney is entitled to a reasonable attorney’s
fee. The statute provides attorney’s fees are reasonable if the fee “does not exceed twenty
percent (20%) of the award to the injured worker.” Tenn. Code Ann. § 50-6-226(a)(1).
Thus, the Court holds his counsel is entitled to a twenty-percent fee from Mr. Mask’s
award.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Mask shall recover from Hill’s Trucking, Inc. permanent partial disability
benefits in the amount of $16,083.27.
2. Mr. Mask shall receive future medical benefits under the statute.
3. The Court denies Mr. Mask’s claims for temporary disability and past medical
benefits.
4. Mr. Mask’s attorney is awarded a twenty-percent attorney’s fee and any incurred
expenses to be paid from Mr. Mask’s award.
5. Costs of $150.00 are assessed against Hill’s Trucking under Tennessee Compilation
6
Rules and Regulations 0800-02-21-.07 (August, 2019), to be paid within five days
of this order becoming final.
6. Hill’s Trucking shall prepare and file a statistical data form within ten business days
of the date of this order under Tennessee Code Annotated section 50-6-224.
7. Unless appealed, the order shall become final thirty days after issuance.
ENTERED October 21, 2020.
_____________________________________
JUDGE AMBER E. LUTTRELL
Court of Workers’ Compensation Claims
APPENDIX
Stipulated Findings of Fact
1. The parties stipulated to Dr. Chung’s seven-percent impairment rating.
2. The parties stipulated that Mr. Mask’s compensation rate is $510.58.
Exhibits
1. First Report of Injury
2. Dr. Chung’s C32
3. Driver’s Daily Log-May 3, 2016
4. Commercial Driver Application
5. Tennessee Department of Safety Supplemental Application for Commercial
Driver’s License
6. Medical Examiner’s Certificate
7. Fleet Safety Compliance Manual
8. Mississippi Department of Public Safety Driver/Vehicle Examination Report
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Scheduling Order
4. Post-Discovery Dispute Certification Notice
5. Employee’s Pre-Compensation Hearing Statement
6. Employee’s Witness List
7. Employee’s Trial Brief
8. Employer’s Pre-Compensation Hearing Statement
9. Employer’s Witness List
10. Employer’s Exhibit List
7
11. Employer’s Trial Brief
12. Employer’s Motion in Limine
13. Employer’s Motion to Continue Trial
14. Order Granting Motion to Continue Trial
15. Employee’s Motion for Extension of Scheduling Order
16. Employee’s Motion to Strike Employer’s Motion in Limine and Reply
17. Notice of Appearance and Substitution
18. Order on Pre-Trial Motions
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on October 21, 2020.
Name Email Service sent to:
J. Colin Morris, Employee’s Counsel X j.colinmorris@gmail.com
Rosalia Fiorello, X rfiorello@wimberlylawson.com
Employer’s Counsel
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
8
Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the Clerk
of the Court of Workers’ Compensation Claims within thirty calendar days of the date the
compensation hearing order was filed. When filing the Notice of Appeal, you must serve
a copy upon the opposing party (or attorney, if represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at any
Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the alternative,
you may file an Affidavit of Indigency (form available on the Bureau’s website or any
Bureau office) seeking a waiver of the filing fee. You must file the fullycompleted
Affidavit of Indigency within ten calendar days of filing the Notice of Appeal. Failure to
timely pay the filing fee or file the Affidavit of Indigency will result in dismissal of
your appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar days of the filing of the
Notice of Appeal. The statement of the evidence must convey a complete and accurate
account of the hearing. The Workers’ Compensation Judge must approve the statement of
the evidence before the record is submitted to the Appeals Board. If the Appeals Board is
called upon to review testimony or other proof concerning factual matters, the absence of
a transcript or statement of the evidence can be a significant obstacle to meaningful
appellate review.
4. After the Workers’ Compensation Judge approves the record and the court clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. The appealing party
has fifteen calendar days after the date of that notice to submit a brief to the Appeals Board.
See the Practices and Procedures of the Workers’ Compensation Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate Procedure.
If neither party timely files an appeal with the Appeals Board, the trial court’s Order will
become final by operation of law thirty calendar days after entry. See Tenn. Code Ann. §
50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries-at-
work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________ Employer
Notice is given that ____________________________________________________________________ [List
name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the Workers’
Compensation Appeals Board (check one or more applicable boxes and include the date filestamped on
the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________ issued
by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 Employee Name: _______________________________________ Docket No.:
_____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
____________________________________________
__ [Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082