Burnett, Jay. Builders Transportation , 2017 TN WC 196 ( 2017 )

FILED
October 1 9~ 2017
TN 368
S.W.3d 442 (Tenn. 2012). 3 The Supreme Court in Mitchell held that in order to
successfully defend a workers' compensation claim on the basis of willful misconduct,
willful disobedience of safety rules, or willful failure to use a safety device, the employer
must prove: (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. !d. at 453.
Here, the proof shows that Builders trained Mr. Burnett in all areas of its policies
and procedures, which included load securement for transporting and unloading pipes.
Builders provided him with manuals containing rules and regulations related to over-the-
road truck drivers. Mr. Burnett verified receipt of this training and the manuals by signing
2
Builders did not submit an affidavit of Mr. Alford nor did it call him to testify at the hearing.
3
The Appeals Board cited Mitchell v. Fayetteville Pub. Utils. as applicable to cases under the
Reform Act of 2013 in Gonzales v. ABC Prof'! Tree Servs., 2014 TN Wrk. Comp. App. Bd.
LEXIS 2 (Nov. 20, 2014).
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the documents to which the parties stipulated. Thus, Builders proved actual notice of the
safety rule in question.
As to the second element of this defense, Mr. Burnett confirmed in his statement,
stipulated to by the parties, that he inspected his load before latching the trailer and
observed it was secured with four straps. After latching the trailer, he added more straps
and four pipe stakes to secure the load. Mr. Burnett showed he appreciated the
importance of the pipe stakes and understood the danger involved if he did not use them.
Although he understood the danger if he had violated the rule, Builders did not prove that
he had.
Considering the third factor, bona fide enforcement of the rule, Mitchell does not
appear to require perfection. The mere fact that employees sometimes ignore or break
rules does not mandate a finding that an employer failed to enforce those rules. Instead
the inquiry appears to be, at least in part, whether employees are aware of the prohibition
and that violation could result in discipline. See Carten ex rei. Carten v. MBI, No.
W2012-01507-SC-WCM-WC, 2013 Tenn. LEXIS 890, at *15 (Tenn. Workers' Comp.
Panel Nov. 14, 2013). Applying this somewhat more flexible standard, it appears
Builders made genuine efforts to instill safe practices in its employees by training and
providing them literature regarding load securement. The Court notes, however, that Mr.
Hall and Mr. Sellers did not recall ever disciplining Mr. Burnett for violation of its
policies.
The Court now looks to Roper v. Allegis Grp., 2017 Wrk. Comp. App. Bd. LEXIS
14 (Feb. 10, 2017), for an instructive analysis of the fourth element of this defense.
There, the Appeals Board rejected the employer's argument that an employee who lacked
a valid excuse for not following a safety rule acted willfully. The Board stated this
argument was "an overbroad interpretation of Mitchell that, if accepted, would allow
employers to deny benefits to employees whose mere negligent or reckless actions
resulted in a violation of a known safety rule." !d. at * 11. Instead, the Board noted it is a
conscious action of an employee to violate a rule that constitutes "willfulness," as
opposed to an employee's negligence or recklessness. The Board observed that it is
"longstanding precedent" in Tennessee that "an employee's negligent or reckless actions
generally are not enough to defeat a claim for workers' compensation benefits." !d. Here,
Builders failed to present evidence to overcome Mr. Burnett's assertion that he used the
pipe stakes. Therefore, Builders did not present sufficient evidence from which this Court
might determine it is likely to prevail on this element at a hearing on the merits.
When applying these concepts to Mr. Burnett's case, the Court finds he did not
"willfully" violate a safety rule or commit "willful" misconduct. In the present case, the
evidence is simply insufficient to show that Mr. Burnett intentionally violated a safety
rule.
For these reasons, the Court rejects Builders' defense and holds Mr. Burnett has
shown he is likely to prevail at a hearing on the merits regarding his claim for benefits.
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IT IS, THEREFORE, ORDERED as follows:
1. Mr. Burnett is entitled to medical and temporary disability benefits. Builders shall
provide Mr. Burnett with a panel of physicians and medical treatment pursuant to
Tennessee Code Annotated section 50-6-204.
2. This matter is set for a Scheduling (Status) Hearing on October 30, at 10:30 a.m.
Central time. You must call 615-532-9550 or toll-free at 866-943-0014 to
participate in the Hearing. Failure to call may result in a determination of the
issues without your participation.
3. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3).
The Insurer or Self-Insured Employer must submit confirmation of compliance
with this Order to the Bureau by email to WCCompliance.Program@tn. gov no
later than the seventh business day after entry of this Order. Failure to submit the
necessary confirmation within the period of compliance may result in a penalty
assessment for non-compliance. For questions regarding compliance, please
contact the Workers' Compensation Compliance Unit vta email at
WCComp liance.Program@tn. gov.
ENTERED the 19th day of October, 2017.
\..JUDGE
,~ DEANA C. SEYMOUR.
Court of Workers' Compensation Claims
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APPENDIX
Exhibits:
1. Form C-20 Employer's First Report of Work Injury
2. Signed certification form documenting the completion of training
3. Signed certification form documenting receipt ofBTC's safety policies and
procedures for drivers
4. Signed certification form documenting receipt ofBTC's maintenance policies and
procedures for drivers
5. Signed certification form documenting receipt of Federal Regulations
6. Page 30 ofBTC's Securement Manual2016
7. Equipment Inventory Sheet dated August 11, 20 16
8. Signed statement of Mr. Burnett dated May 23, 2017
9. Physical results dated July 26, 2016
10. Photographs of alleged accident scene (Collective)
11. Affidavit of Jay Burnett
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
2a. Employee's Additional Issues for Inclusion in Dispute Certification Notice
3. Request for Expedited Hearing and attached affidavit
4. Employer/Carrier Pre-Hearing Statement
5. Employer/Carrier Witness and Exhibit Lists
6. Notice ofFiling Wage Statement
7. Employer/Carrier Amended Witness and Exhibit Lists
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Expedited Hearing Order was sent to
the following recipients by the following methods on the ~th day of October 20 17.
Name Via Via Service sent to:
Fax Email
Shannon Toon, X stoon@taxlortoon.com
Employee's Attorney
Michael Jones, X mjones@wimberlylawson.com
Employer's Attorney
Penny S
Court of orkers' Compensation Claims
WC.CourtC ierk@tn. gov
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