By Taylor Skees, staff attorney, Memphis

The Appeals Board heard oral arguments on Oct. 1 in Dingus v. Grand Piano and Furniture Company to determine if Gary Dingus willfully failed to wear a safety device, which would bar his claim for benefits.

The parties agree that Dingus fell from a forklift and fractured his spine and ankle. However, did Dingus secure himself to the forklift harness? Or did he willfully unhook himself?

The trial court granted benefits after a compensation hearing, and Grand Piano appealed.

It argues that Dingus willfully committed misconduct and even admitted to it. After he fell, someone asked him, “Were you buckled up, were you harnessed up?” and he responded: “no, I effed up, I effed up.” Grand Piano’s attorney, Gerard Jabaley, argues that this is an admission he didn’t properly secure his harness and that this action constitutes willful misconduct.

Grand Piano also points to inconsistencies in Dingus’s testimony. Dingus first testified that his harness was properly attached to the metal safety ring, and he pulled the tether up and down to hear a metal clang. However, he later said that he didn’t hear metal, so he must’ve hooked his tether to the safety strap instead of the metal ring.

Grand Piano also brought up a photograph, which showed a footprint on a box that Dingus testified he wouldn’t be able to reach if he were properly tethered.

Grand Piano’s argument is that Dingus unhooked himself when the forklift was up in the air to gain leverage to move a sofa, which constituted willful misconduct and led to his injury.

Jabaley said, “The only logical conclusion—not speculation as the trial court referenced, but probability—is that he unhooked himself. Otherwise you can’t have the footprint, and you can’t fall.”

Presiding Judge Timothy Connor characterized Grand Piano’s argument as res ipsa loquitur, observing, “It seems like you’re saying, ‘It happened, so he must have unhooked himself.’” Jabaley agreed, emphasizing that Dingus did it intentionally.

Dingus’s attorney, Michael Muncy, paints a different picture. He acknowledges that Dingus didn’t know what happened with complete certainty. However, Dingus testified that he attempted to attach his safety harness in a safe manner, and that once he tethered his harness it followed him around on the platform, which suggested that he was indeed safely attached.

As to the “I effed up” comments, Dingus’s attorney doesn’t believe that amounts to willful misconduct. He believes that for the conduct to be willful, Dingus would’ve later explained that he took the safety harness off before the fall, as opposed to this statement made while “writhing in pain.”

Muncy says Grand Piano didn’t meet its burden to prove its defense. Dingus’s actions were possibly negligent, but, “The case law is clear: negligence just isn’t enough. Actual willful conduct is required. This is a tough standard.”

Dingus also points out that at an earlier time, he jumped off the forklift to go to lunch, and forgot he was tethered. He’d worked on forklifts before, and when you jump off, the tether is supposed to pull you back. However, in this instance the tether just slid out instead of stopping him from jumping.

As to the photograph, Dingus’s attorney contends that the employer representative who testified to the photograph couldn’t say who took the photo, what condition the box was in before the fall occurred, or even whose footprint was on the box.

Thus, Dingus’s view of the facts is that he properly attached his harness, either to the safety ring or the safety strap, but that the tether slid out when he fell, instead of preventing his fall.

Muncy additionally points out that the trial court had the ability to gauge Dingus’s credibility. Dingus explained his story to the judge “under oath, eye to eye, and the judge found him credible and understandable.”

Ultimately, the Appeals Board will have to balance these conflicting views and determine: was Dingus unsafe? And if so, was he willfully unsafe?

The Board will release its opinion within 45 days after the arguments.

Photo by Kim Weaver, paralegal, Knoxville.