Kidd, Terry v. LSO Holding Corp. , 2017 TN WC 147 ( 2017 )

FILED
August 2 .~ 20 l 7
TN 161 Tenn. 376, 380-1 (Tenn. 1930).
Several decades later, the high court found an employee's horseplay - namely, the
"goosing" of a fellow employee that caused injury - did not arise out of the employment
but instead constituted willful misconduct. Ins. Co. of Am. v. Hogsett, 486 S.W.2d 730,
733-4 (Tenn. 1972). More recently, the Supreme Court again characterized horseplay
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resulting in injury as willful misconduct under Tennessee Code Annotated section 50-6-
110(a). Rogers v. Kroger Co., 832 S.W.2d 538, 541 (Tenn. 1992).
In Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442, 453 (Tenn. 2012), the high
court revised the willful misconduct factors to eliminate "perverseness" in an analysis of
the term "willful." Instead, the Court outlined the following four-point analysis: (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. 1
Applying these factors, the Court finds Mr. Kidd had notice that LSO prohibited
horseplay, demonstrated by his signed acknowledgement during training. However, this
Court cannot conclude that Mr. Kidd fully understood the danger involved, despite this
training, given LSO's tolerance of a "joking around environment" and LSO's apparent
disregard of the rule. The Court cannot find that LSO strictly enforced the rule, given the
testimony of Ms. Thurman and Mr. Stephens that LSO disciplined no one for horseplay
previous to this incident. Considered as a whole, the Court cannot find the evidence
supports LSO's defense.
Further, common sense dictates that a horseplay defense does not apply when the
person injured did not participate in the horseplay. Here, Mr. Fisher suddenly picked Mr.
Kidd up and threw him to the ground. Perhaps the best evidence is the video. It clearly
depicts Mr. Kidd about to walk through a doorway, presumably to the loading dock,
when Mr. Fisher proceeded to pick him up, carried him for several seconds and then
threw him forcefully to the ground. Mr. Fisher essentially perpetrated an assault. Mr.
Kidd argued that whatever might have happened beforehand did not justify Mr. Fisher's
disproportionately violent response. The Court agrees and finds the more appropriate
focus is a workplace assault. 2
The Tennessee Supreme Court previously outlined categories of workplace
assaults, including "assaults with an inherent connection to employment such as disputes
over performance, pay, or termination." Woods v. Harry B. Woods Plumbing Co., 967
S.W.2d 768, 771 (Tenn. 1998). Assaults falling into this category are compensable. Wait
v. Travelers lndem. Co. oflll., 240 S.W.3d 220, 227 (Tenn. 2007).
Here, the precipitating "dispute" - albeit one lacking ill will - stemmed from an
interaction that occurred while, and was cultivated by, loading delivery vans. Mr. Kidd
and Mr. Fisher performed this task in a relaxed work environment. However, that does
1
The Appeals Board applied the Mitchell test under the Reform Act in several cases, including Gonzales
v. ABC Prof'/ Tree Servs., 2014 TN Wrk. Comp. App. Bd. LEXIS 2, at *21 (Nov. 10, 2014).
2
The amended Dispute Certification Notice lists "assault" as an issue.
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not detract from the fact that the interaction while loading the delivery vans led to the
assault shortly afterward. "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." Johnson v. Wal-Mart Assoc., Inc., et al., 2015 TN Wrk. Comp.
App. Bd. LEXIS 18, at * 12 (July 2, 20 15) (citation omitted). The Courts finds a causal
connection between the conditions of the work on the morning in question and Mr.
Kidd's injury.
In conclusion, as a matter of law, Mr. Kidd presented sufficient evidence to
establish he is likely to prevail on compensability at a hearing on the merits.
The Court sets this matter for a Scheduling Hearing on October 9, 2017, at 8:45
a.m. Central Time. You must call 615-532-9552 or toll-free at 866-943-0025 to
participate in the Hearing. Failure to call in may result in a determination of the issues
without your further participation.
ENTERED this the 2nd day of August, 2017.
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APPENDIX
Exhibits:
1. Terry Kidd Affidavit
2. Video recording
3. Employment documents
4. Deposition of Garry Lee
5. Garry Lee's written statement
6. Deposition of William Fisher
7. William Fisher's written statement
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Subpoena and Return on Service, Zakk Armstrong
5. Employer and Insurer's Witness and Exhibit List for Expedited Hearing
6. Employer and Insurer's Pre-Hearing Brief in Opposition to Employee's Request
for Benefits
7. Employee's Pre-Hearing Statement
8. Employee's legal authority
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on this the 2nd day of August, 2017.
Name Certified Via Via Service sent to:
Mail Fax Email
Michael Fisher, X mfisher@ddzlaw .com
Employee's Counsel
Chip Storey, X cstoreyj @travelers.com
Employer's Counsel
urn, Clerk of Court
Court o orkers' Compensation Claims
WC.CourtClerk@tn.gov
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