Wade, John v. Karr Transpotation, Inc. , 2020 TN WC 106 ( 2020 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
JOHN WADE, ) Docket No. 2019-06-1230
Employee, )
V. )
KARR TRANSPORTATION, INC., )
Employer, ) State File No. 11197-2019
And, )
ARCH INSURANCE, )
Carrier. ) Judge Joshua Davis Baker
EXPEDITED HEARING ORDER DENYING BENEFITS
The Court held an expedited hearing on January 29, 2020, to consider Mr. Wade’s
request for temporary disability and medical benefits in light of Karr’s asserted defenses
of intoxication, violation of a safety rule, and intentional act. For the reasons below, the
Court holds that Mr. Wade would not likely prevail at a hearing on the merits due to his
violation of safety rules and denies the requested benefits.
Claim History
Mr. Wade is a U.S. Army veteran who drove a tank in combat in the Middle East
during several military conflicts. His Army training and the posttraumatic stress disorder
(PTSD) that he developed as a result of his time in the military impacted the proof in this
case.
Mr. Wade served in Iraq where he drove tanks and armored vehicles through streets
that were often loaded with improvised explosive devices placed to harm the vehicle and
the soldiers within. He further explained that enemy troops used wounded children to
encourage the vehicles to stop and assist. When the vehicle stopped and the soldiers exited,
the enemy troops would open fire on them as they moved to assist the wounded child. Mr.
Wade lost several of his military comrades in these ambushes. To avoid ambush, he and
his team had to make tactical decisions, which resulted on occasion in harm to the children
the enemy troops used to encourage the U.S. troops to stop and assist.
After his discharge, Mr. Wade tried to find work. He worked several jobs over the
years, but his PTSD and depression impeded his ability to keep a steady job. He also began
using cocaine and drinking alcohol and made several unsuccessful suicide attempts.
Eventually Mr. Wade obtained his commercial driver’s license and went to work
for Karr Transportation as a driver. Karr gave him an employee handbook. The handbook
prohibited the possession of alcohol while on Karr property or when conducting business
for Karr. Additionally, the handbook required that all drivers wear seat belts “while the
vehicle is in operation.” Bob Gale, Karr’s safety director, testified that Mr. Wade
acknowledged receiving the employee manual. He also affirmed the seat belt and alcohol
policies and testified Karr enforced both policies and terminated drivers for violations.
Mr. Wade suffered severe injuries in a trucking accident on August 23, 2018. Mr.
Wade and the defense witnesses gave conflicting testimony about the cause and
circumstances of the accident.
According to Mr. Wade, he stopped overnight at a truck stop just north of downtown
Nashville the night before the accident to take his mandatory rest period. After stopping,
he went into the store and purchased a six-pack of beer and took it back to the cab of his
truck. After drinking one, he said he relaxed in his truck to wait out his rest period.
Another witness told a different story. Eric Beers, Karr’s district manager and son
of its owner, testified that all trucks are equipped with GPS trackers, and the tracker on Mr.
Wade’s truck showed he left the truck stop and drove his truck all the way to Murfreesboro
before returning to the truck stop in north Nashville. Mr. Beers tracked him the following
morning and found him parked at a hotel near the truck stop. Mr. Beers recounted two
other people near Mr. Wade’s truck. Mr. Wade denied there was anyone near the truck
with him and said he stopped at the motel because the brakes on his truck were
malfunctioning.
After this encounter, Mr. Wade drove his truck toward Smyrna to make his delivery
with Mr. Beers following behind. Mr. Wade exited the interstate onto Sam Ridley
Parkway. After traveling a short distance, the truck went off the road and crashed into a
tree. The crash resulted in extensive injuries, including the amputation of part of his leg.
Mr. Gale came to the crash site and observed two full cans of beer that officers had
found and placed in the truck’s cab. He said Mr. Wade’s possession of the alcohol violated
company policy.
Rafael Bello, a police officer investigating the accident, said in an affidavit that there
was “a strong odor of alcohol in the truck,” empty beer cans, and drug paraphernalia. The
officer also stated nothing showed Mr. Wade turned the truck to avoid a collision. The
2
officer investigated the accident as a possible suicide attempt. After the accident, Mr. Gale
contacted Mr. Wade’s former girlfriend and told her about it. She asked him, “Did he do
it on purpose?”
Camera footage from inside the truck at the time of the accident showed that Mr.
Wade was not wearing his seat belt. In his testimony, Mr. Wade said he purposely took
off his seat belt because his commanding officers in his military training told him to
unbuckle his seat belt if he expected his vehicle to crash so that he could safely exit the
vehicle or abandon it before the crash if necessary. Mr. Wade said that the brakes from the
truck were not working correctly and, knowing he would crash, he followed his training
and removed his seat belt.
Mr. Beers, also a veteran who served in a capacity similar to Mr. Wade’s, said no
one trained him to remove his seat belt in anticipation of a vehicle accident. He also said
drivers are required to report any maintenance problems immediately, and the driver will
be sent to the nearest location to fix the problem. Mr. Beers found no record of brake
problems with Mr. Wade’s truck in the maintenance history.
Findings of Fact and Conclusions of Law
At an expedited hearing, Mr. Wade must provide sufficient evidence to show that
he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1)
(2019). The Court finds he failed to carry this burden.
Mr. Wade suffered serious injuries when he crashed his truck, which accident he
claims occurred due to faulty brakes. Karr maintains that Mr. Wade intentionally crashed
the truck after removing his seat belt in a suicide attempt. Karr argues his intentional act
of crashing the truck and violation of safety rules by removing his seat belt and having beer
in the truck bars his claim.
Karr’s defense lies in employee misconduct. Tennessee workers’ compensation law
provides that “no compensation shall be allowed for an injury or death due to the
employee’s ... intentional self-inflicted injury [or] . . . willful failure or refusal to use a
safety device[.]” Tenn. Code Ann. § 50-6-110(a)(2) and (a)(4). As these are affirmative
defenses, Karr bears the burden of proof.
Karr maintains that Mr. Wade intentionally crashed the truck in an attempted
suicide. This allegation is compelling, as Mr. Wade had a documented mental health
condition and history of prior suicide attempts. Under the stress of Mr. Beers finding him
at the hotel that morning and Mr. Wade having alcohol and drug paraphernalia in the truck
in violation of Karr’s safety rules, a suicide attempt was not out of the question. This
supposition is further supported by the lack of any credible evidence that the truck had
brake problems, Officer Bello’s statement that the accident was investigated as a possible
suicide attempt, and Mr. Wade’s former girlfriend’s reaction to the news of the accident.
However, whether Mr. Wade acted intentionally or not, he violated safety rules by
unbuckling his seat belt before the accident and by having alcohol in the truck. To show
Mr. Wade engaged in willful misconduct by violating a safety rule, Karr must prove: (1)
that Mr. Wade had actual, as opposed to constructive, notice of the rule; (2) that he
understood the danger involved in violating the rule; (3) that Karr practiced bona fide
enforcement of the rule; and (4) that Mr. Wade lacked a valid excuse for violating the rule.
Mitchell v. Fayetteville Pub. Utilities, 368 S.W.3d 442, 452-53 (Tenn. 2012).
Karr proved Mr. Wade received a copy of the manual requiring seat belt use, so he
had actual notice of the rule. Mr. Gale provided unrefuted testimony that Karr enforced
the rule.
As for understanding the danger involved in violating the seat belt rule and Mr.
Wade’s excuse for the violation, the Court also finds these factors in Karr’s favor. The
danger inherent in not wearing a seat belt is obvious, given the possibility of ejection and
further injury by a person’s body moving on impact. The Court does not find Mr. Wade’s
testimony that his military training taught him to remove his seat belt in the event of an
accident persuasive. Even if he had received that military training, Mr. Wade was working
for Karr, not the military, at the time of the accident, and Karr required him to wear a seat
belt. He therefore had no valid excuse for removing it.
Mr. Wade also had actual notice he could not have alcohol in the cab of the truck
and did so anyway. He knew of the dangers associated with drinking and driving and had
no valid excuse for carrying the alcohol. While the evidence is insufficient to show that he
was intoxicated when the accident occurred, the mere possession of the alcohol constituted
a safety violation.
Because the Court finds that Mr. Wade violated safety rules by failing to wear his
seat belt and carrying alcohol in the truck, the Court holds he is unlikely to prevail at a
hearing on the merits in his requested benefits.
It is ORDERED as follows:
1. Mr. Wade’s request for temporary disability and medical benefits is denied.
2. This case is set for a status conference on Monday, December 14, 2020, at 9:00
a.m. (CST). The parties must call 615-741-2113 to participate. Failure to call might
result in a determination of issues without the party’s participation.
ENTERED October 13, 2020.
C \ —_
Joshua Davis Baker, Judge
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
9.
SANUS YWN SE
Mr. Wade’s Affidavit
Letter from Dr. Melissa Klein
Letter from Dr. Clay Kelly
Wage Statement
First Report of Injury
Accident Video
Rafael Bello Affidavit
Karr’s Alcohol and Drugfree Workplace Policy
Karr’s Safety and Accident Policy
10. Karr’s Seat belt Policy
11. Karr’s Alcohol and Drug Testing and Enforcement Policy
12. Signed Employee Policy Receipt Acknowledgement
13. Medical Records
14. Email
15. Photograph
16. Maintenance Bill
17.GPS Report
18. Photograph
19. Photograph
20. Photograph
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on October 13, 2020.
Name Certified | Fax | Email | Service sent to:
Mail
Christopher Kim x kim@thompsonslawoffice.com
Thompson,
Employee’s Attorney
John Thomas Feeney, x johntfeeney @feeneymurray.com
Taylor R. Pruitt,
Employer’s Attorneys
trp(@feeneymurray.com
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UA
Penny Shrum, Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, 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 seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
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 fee. You must file the fully-
completed 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 the 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. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business 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 before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
conceming factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
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/
we.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
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 file-
stamped on the first page of the order(s) being appealed):
D Expedited Hearing Order filed on UO) Motion Order filed on
O Compensation Order filed on 0 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#:
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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 !nj.:
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 | 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