Glasgow, Jack v. 31-W Insulation Co., Inc. , 2017 TN WC App. 50 ( 2017 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Jack Glasgow ) Docket No. 2017-05-0225
)
v. ) State File No. 3128-2017
)
31-W Insulation Co., Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Dale Tipps, Judge )
Affirmed and Remanded-Filed September 6, 2017
The employee suffered multiple injuries when he fell several feet while installing
insulation in the course of his work for the employer. Although not disputing that the
employee was injured in the course of his employment, the employer denied the claim
based upon affirmative defenses grounded in the employee’s alleged willful misconduct
and willful failure or refusal to use a safety device in the performance of his work.
Following an expedited hearing, the trial court awarded benefits, determining that the
employee was likely to meet his burden of establishing that he suffered a compensable
injury at a trial on the merits and that the employer was unlikely to meet its burden of
proving the elements of its affirmative defenses. The employer has appealed, questioning
the trial court’s determination that it failed to prove bona fide enforcement of the safety
rule at issue. We hold that the preponderance of the evidence supports the trial court’s
determination that the employer failed to prove its affirmative defense. Accordingly, we
affirm the trial court’s decision and remand the case.
Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, and Judge Timothy W. Conner joined.
Owen R. Lipscomb, Brentwood, Tennessee, for the employer-appellant, 31-W Insulation
Co., Inc.
Andrea Meloff, Nashville, Tennessee, for the employee-appellee, Jack Glasgow
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Factual and Procedural Background
On January 11, 2017, Jack Glasgow (“Employee”) was in the course of his work
with 31-W Insulation Co. (“Employer”), when he fell from a height of several feet while
installing insulation in the two-story foyer of a home under construction. He suffered
multiple injuries, including a head laceration, and was rendered unconscious.
Presumably due to his head injury, he denies having any memory of the fall. In an
expedited hearing, he testified he did not remember the day of the accident, did not
remember where he was standing when he fell, and did not have any idea how he fell.
No one witnessed the fall.
According to the testimony of Employee’s co-worker who was present at the
worksite and Employer’s witnesses who testified at the hearing, Employee was standing
on the top plate of the interior first floor front foyer wall while holding onto a stud with
one hand and placing insulation batts between the studs with his other hand. The parties
do not dispute that Employee fell while installing insulation, nor do they dispute that he
suffered severe injuries. However, Employer denied the claim, asserting as affirmative
defenses that Employee engaged in willful misconduct and failed to use safety devices
available to him.
Employee was working with another insulation installer, Brian Helton, on the day
of the accident. When Employee fell, Mr. Helton was working in another area of the
house on the second floor installing ceiling insulation while wearing stilts. Mr. Helton
testified in a deposition that he saw Employee working prior to the fall and that
Employee was “scaling the wall . . . in between the first and second floor[] [a]nd I guess
he lost his footing or his hold of his hands or something and fell.” However, Mr. Helton
also testified that he did not see how Employee was working before he fell, and he
repeatedly testified he was unsure exactly how Employee was holding onto the wall
before he fell, stating that he “wasn’t paying attention to what [Employee] was doing
really.” When asked specifically whether Employee would use one arm to put up the
insulation and one to hold on, or whether Employee used both arms to put up insulation,
he stated “speculation would be he’s holding on with one and putting [insulation] in with
the other one, but I don’t know.” Nonetheless, Mr. Helton agreed that in his opinion the
method Employee used to put up insulation in that location was dangerous because “you
just need a ladder.” When asked whether he had “crawled out on that – those 2 x 4s like
[Employee] did to hang insulation,” he testified “I’ve done it before, yes.” He further
testified that if he had been installing insulation in the foyer area he “would have put the
pieces up there . . . with a stick, and then [he] would have come back with a ladder and
stapled it.”1
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Mr. Helton testified that the sticks were “one of the tricks of the trade,” and that “we’d make them,” but
that Employer did not require installers to use sticks. Mr. Helton did not know whether Employee was
using a stick when he fell and testified, “I don’t even remember if there was a stick in the house or not.”
2
Employer’s general manager, Kerry Johnson, testified he discussed Employee’s
dangerous manner of performing work with Employee when he was hired in 2016.
Employee had previously worked for Employer, and in 2014 he suffered injuries while
installing insulation on a job similar to the job being performed at the time of the January
2017 accident. Mr. Johnson testified that in the earlier incident, Employee found a scrap
piece of wood on the job and nailed it across the foyer so he could walk across the area
“in lieu of moving the ladder.” He testified Employee nailed both sides of the board
“[a]nd he stepped onto the board and it pulled the nail out of the stud, because he had a
short nail . . . and he fell because of using the scrap wood and not using the techniques he
was taught.” Mr. Johnson testified that nailing a board across the foyer and standing on it
was a violation of Employer’s safety protocol, and that “nothing in our rule book allows
you to do that.” Employee denied that his earlier accident resulted from a fall from a 2 x
4 that he had nailed across a foyer. He testified “[w]e had a scaffold made – a homemade
scaffold made up and the scaffold fell” while he had one foot on a ladder and the other
foot on the scaffold.
Mr. Johnson testified that after the 2014 incident, and while Employee continued
to work for Employer, he had several discussions with him about how the incident
occurred. He testified he rehired Employee in October 2016, which he said “was a
decision that . . . was out of friendship,” and that when Employee was rehired he
discussed the requirement that Employee follow procedures and protocols, including the
use of ladders. He testified:
And my words were, look, you can’t put yourself in harm’s way. You can’t
expose me as your supervisor. You have got to be careful. You have to
take care of yourself, you know, and use a ladder. I mean, you can’t – you
can’t come in here and, you know, act like a cowboy and . . . take
unnecessary chances.
Mr. Johnson testified that upon hiring a worker, a Safety Handbook is available
and employees are required to review the handbook and sign a document acknowledging
that they reviewed the handbook. Both the Safety Handbook and an acknowledgment
signed by Employee, dated October 11, 2016, were admitted into evidence.
Mr. Johnson testified that, in conjunction with his assistant manager, Larry Moore,
he conducted an investigation following Employee’s January 2017 accident. After
contacting Mr. Moore immediately following the accident and directing him to go to the
jobsite for an initial walk-through, Mr. Johnson “made an accident report . . . and then
went to the hospital while Larry [Moore] did the initial walk-through and investigation at
the site.” He testified he went to the accident scene the following morning with Mr.
Moore and talked in-depth with Employee’s co-worker, Mr. Helton, to determine how the
accident happened. He testified that Employee “was probably – and what Brian [Helton]
told [him], that he was . . . holding on to a stud . . . [indicating] in a horseshoe shape,
3
clamped onto it while trying to install insulation above him.” He testified that is
“absolutely not” the way insulation is supposed to be installed. Mr. Johnson further
testified that, while visiting Employee in the hospital, Employee expressed remorse,
stating he knew he should not have been climbing on the exposed studs to install
insulation and that he was sorry the incident occurred.
Employer asserted affirmative defenses to Employee’s claim based upon
Tennessee Code Annotated section 50-6-110(a). It contended that no compensation was
due because of Employee’s willful misconduct in performing his work in such a
dangerous manner and in violation of Employer’s rules, and because of his willful failure
or refusal to use safety devices that Employer made available for installing insulation.
Employer contended that its Safety Handbook provided “the foundation” for the rules it
alleged Employee violated. As stated in a “Disclaimer” on the first page of the
handbook, “[Employer] asks and expects that any and all employees . . . undertake all
possible efforts to prevent exposing themselves or others to hazards; . . . and to ensure
that all required protective clothing and equipment is regularly worn, inspected, and
maintained.” Mr. Johnson acknowledged there was not a specific rule addressing the use
of ladders and testified it would be impossible to foresee every instance in which an
employee might behave in an unsafe manner. In addition, he testified that Employer held
safety meetings at which the use of ladders to install insulation at heights was discussed.
Employer’s assistant manager, Mr. Moore, testified that he conducted an
investigation of the accident and went to the jobsite about an hour after the accident “and
took pictures and tried to portray what happened.” Based on his investigation, he
concluded that Employee “was standing on the top plate of the wall . . . hanging on with
one arm and insulating with the other.” He testified that was not the proper way to install
batt insulation and was unsafe, and that he had “never seen or heard of anybody doing
anything of that nature.” He testified there were “quite a few different ways” that would
be proper to install batt insulation at a location like this, stating “[y]ou can use a
legitimate wide board; you can use a ladder; [and] you can use a stick.” He testified he
knew that Employee had been trained or told the proper method to install insulation
“[b]ecause we have monthly and bi-monthly meetings about safety,” which Employee
attended. Mr. Moore testified that he concluded from his investigation that Employee
committed a safety violation because he “could have used a hard hat, ladder,” and that
this accident was preventable because Employee “could have used a ladder or a stick.”
Further, when asked about enforcement of Employer’s safety policies, he testified “if I
[saw] you doing that, that you would be terminated immediately because you’re working
in an unsafe manner.” He testified that the method used to determine whether an
employee is violating policies was to “go around to the job sites,” and that he did
so “[j]ust about every day.”
Mr. Moore acknowledged that none of the personal protective equipment that
Employee was required to wear would have prevented the fall. When asked to identify
4
any specific rule in the Safety Handbook that he thought Employee violated that could
have prevented the fall had Employee followed the rule, he responded, “[w]orking in an
unsafe manner.” When asked whether the rule prohibiting working in an unsafe manner
was the rule Mr. Johnson was referring to when he testified employees were not to “put
themselves in harm’s way,” he agreed it was. He testified that the handbook also
required employees to use and practice safe means and methods and to use equipment,
but neither Mr. Johnson nor Mr. Moore identified any other rule in the Safety Handbook
as having been violated by Employee. Additionally, Mr. Moore testified that Employee
was still an employee at the time of the expedited hearing.
Following the conclusion of the expedited hearing, the trial court determined that
Employee established that he suffered injuries that arose primarily out of his employment
and that he was likely to meet his burden at trial of proving he suffered a compensable
injury. The trial court further determined that Employer “is unlikely to meet its burden of
establishing all of the elements of [its] defenses at a hearing on the merits.” More
specifically, the trial court found that the Employer’s “failure to enforce its rule on the
occasion of [Employee’s] first work injury . . . precludes a finding of a consistent, bona
fide enforcement of the rule in question.” Accordingly, the trial court awarded Employee
the requested medical benefits and a portion of the requested temporary disability
benefits. Employer has appealed.
Standard of Review
The standard we apply in reviewing a trial court’s decision is statutorily mandated
and limited in scope. Specifically, “[t]here shall be a presumption that the findings and
conclusions of the workers’ compensation judge are correct, unless the preponderance of
the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2016).
Analysis
Initially, we note that Employer cites Tennessee Code Annotated section 50-6-
217(a)(3) (2016) (repealed 2017) in support of its argument that the trial court’s decision
is not “supported by substantial and material evidence.” Section 50-6-217(a)(3)
authorized the Appeals Board to reverse or modify the decision of a workers’
compensation judge if the rights of any party were prejudiced because findings of the
judge “[a]re not supported by evidence that is both substantial and material in light of the
entire record.” However, this code section was deleted effective May 9, 2017.
Consequently, and as noted above, the standard we apply in reviewing the trial court’s
decision presumes that the trial judge’s factual findings and conclusions are correct,
unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-
239(c)(7). Accordingly, the trial court’s findings and conclusions concerning whether
Employer established the elements of its affirmative defenses come to us with a
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presumption of correctness that can only be overturned if the preponderance of the
evidence is otherwise.
In Mitchell v. Fayetteville Public Utilities, 368 S.W.3d 442 (Tenn. 2012), the
Tennessee Supreme Court addressed the affirmative defenses of willful misconduct and
willful failure to use a safety device. After addressing prior opinions concerning both
defenses, the Court in Mitchell noted an overlap in the elements required to successfully
establish both defenses and accepted Professor Larson’s suggestion that the elements
required to assert successful defenses for willful misconduct and failure to use a safety
device should be determined by the same standard. Concluding that “Larson’s four-step
test establishes straightforward guidelines for evaluating claims of willful misconduct and
the willful failure or refusal to use a safety appliance,” the Court “adopt[ed] the [Larson]
standard for this and future cases involving these statutory defenses.” Id. at 453. In the
instant case, the trial court recognized Mitchell as controlling and analyzed the four
elements that Mitchell required Employer to prove to establish affirmative defenses under
sections 50-6-110(a)(1) and (4): (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.
Although Employer relied upon the affirmative defenses in sections 50-6-
110(a)(1) and (4) in the trial court,2 it bases this appeal on the willful misconduct defense
alone. In addition to its argument that Employee failed to abide by the safety policies
identified in its Safety Handbook, it asserts that Employee failed to use a ladder as he had
been counseled and argues these failures evidence Employee’s willful misconduct.
Employer cites as error the trial court’s determination that it would be unlikely to prove
at trial “the 3rd element of [Mitchell], ‘bona fide enforcement’ because [Employee] might
assume [Employer] was not serious about enforcement of [the] rule because of its past
conduct.”
Although citing no authority, Employee insists on appeal that “[a] general safety
violation cannot be used for a willful misconduct violation.” Employee raised this issue
in the trial court, asserting that Employer did not present a specific safety rule that
Employee was alleged to have violated, “so we don’t get into that Mitchell test.” While
the issue was raised below, the trial court did not address whether Employer’s safety
rules were too vague for an alleged violation to constitute willful misconduct. However,
in addressing the first element of Mitchell requiring actual notice of a safety rule, the trial
court noted Employee’s “suggestion” to be correct that the Safety Handbook “did not
2
Tennessee Code Annotated sections 50-6-110(a)(1) and (4) (2016) provide that “[n]o compensation shall
be allowed for an injury or death due to: [t]he employee’s willful misconduct; . . . [or] [t]he employee’s
willful failure or refusal to use a safety device[].”
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identify ladders as safety equipment and contained no specific instructions or
requirements as to when workers were to use ladders.”3
The trial court stated it would be unreasonable to impose a duty on an employer to
anticipate every possible unsafe decision by an employee, adding that “[t]his is especially
true in a case such as this one, where an employee does something so patently unsafe as
to violate the general admonishment of the Safety Handbook to ‘undertake all possible
efforts to prevent exposing themselves or others to hazards.’” Noting that Employer’s
general manager, Mr. Johnson, credibly testified that he gave Employee “specific and
personal counseling about the necessity of using a ladder,” the trial court concluded that
“[c]onsequently, the Court finds that [Employee] had actual notice of a rule prohibiting
the kind of unsafe behavior that caused his injuries and thus satisfies the first criteria of
Mitchell.” In addition, the trial court found that Employee “must have understood the
danger in violating the rule . . . in light of the fact that his prior injury occurred in a very
similar manner – because of his failure to use a ladder to install insulation at a height.”
Noting that Employee’s lack of memory rendered him “unable to offer any excuse for his
failure to abide by [Employer’s] safety rules,” the trial court concluded “this case meets
both the second and the fourth criteria of Mitchell.”
Addressing Mitchell’s third element requiring bona fide enforcement of the rule at
issue, the trial court stated that it appeared Employer “made genuine efforts to instill safe
practices in its employees and made random visits to the jobsites to confirm compliance.”
However, the court found Employer had not established that it consistently disciplined
employees for violations of the rule at issue. The trial court observed that Employee had
been injured in a similar manner during a previous period of employment, but that he was
not disciplined for the violation and was subsequently rehired. The trial court stated that
Employer’s “failure to enforce its rule on the occasion of [Employee’s] first work injury
caused by a patently unsafe act precludes a finding of a consistent, bona fide enforcement
of the rule in question.” Furthermore, Employee was not disciplined following the injury
in this instance despite the fact that Mr. Johnson testified he had counseled Employee on
this very issue at the time he was rehired. Moreover, Mr. Moore acknowledged that
Employee was still an employee at the time of the hearing. Accordingly, we agree with
the trial court that Employer has not demonstrated “consistent, bona fide enforcement of
3
In arriving at a uniform approach to willful misconduct and willful failure or refusal to use a safety
device, the Mitchell Court did not express an opinion concerning the degree of specificity required of a
safety rule in order for its violation to amount to willful misconduct. It did note, however, that in
adopting Larson’s test, it is necessary for the defense to prove that “the employee had actual knowledge
of the policy.” Mitchell, 368 S.W.3d at 453. Prior to Mitchell, the Tennessee Supreme Court observed
that the statutory willful misconduct defense “has, in practical application, been largely limited to the
deliberate and intentional violation of known regulations designed to preserve the employee from serious
bodily harm.” Bryan v. Paramount Packaging Corp., 677 S.W.2d 453 (Tenn. 1984) (emphasis added).
Indeed, “willful misconduct” has been limited to the willful disobedience of “known and understood
prohibitions.” Wright v. Gunther Nash Mining Constr. Co., 614 S.W.2d 796, 798 (Tenn. 1981).
7
the rule in question,” and for that reason we agree with the trial court’s determination that
Employer failed to establish an essential element of its affirmative defense.
Conclusion
For the foregoing reasons, we hold that the evidence at this stage of the case does
not preponderate against the trial court’s decision. Accordingly, we affirm the trial
court’s decision and remand the case for any further proceedings that may be necessary.
8
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Jack Glasgow ) Docket No. 2017-05-0225
)
v. ) State File No. 3128-2017
)
31-W Insulation Co., Inc., et al. )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 6th day of September, 2017.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Andrea Meloff X ameloff@ddzlaw.com
Owen Lipscomb X owen.lipscomb@libertymutual.com
Dale Tipps, Judge X Via Electronic Mail
Kenneth M. Switzer, X Via Electronic Mail
Chief Judge
Penny Shrum, Clerk, X Penny.Patterson-Shrum@tn.gov
Court of Workers’
Compensation Claims
Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov