Garlock, Autumn v. O’Reilly Wooten 2000, LLC, d/b/a O’Reilly Auto Parts, ( 2023 )

FILED
Sep 27, 2023
10:05 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Autumn Garlock, ) Docket No. 2022-06-1720
Employee, )
v. )
O’Reilly Wooten 2000, LLC, d/b/a )
O’Reilly Auto Parts, ) State File No. 58237-2022
Employer, )
And )
AIU Insurance Co., )
Carrier. ) Judge Kenneth M. Switzer
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
The Court held an expedited hearing on September 18, 2023, on Autumn Garlock’s
request for benefits for a back injury she suffered while lifting an object at work for
O’Reilly Auto Parts. O’Reilly raised a willful misconduct defense. For the reasons below,
the Court holds that O’Reilly has not presented sufficient evidence in support of its
affirmative defense, and Ms. Garlock is likely to prevail at a hearing on the merits on this
issue. O’Reilly must authorize and schedule an appointment with Dr. Ryan Snowden. Ms.
Garlock’s remaining requests are denied at this time.
Claim History
Ms. Garlock is a material handler at O’Reilly. According to her petition, the
position requires “heavy lifting.” She testified that before the date of injury, she told her
supervisor that the parts were occasionally “too heavy” for her to lift.
On August 4, 2022, she operated an order picker, which is a machine with a platform
with forks on the back that attach to a pallet. The machine lifted her to the proper location.
The pallet, on which the parts were located, was in her “power zone, ” meaning it was
located between her mid-thighs and shoulders so she would not have to bend down. She
testified: “I got to the location, and I turned around to scan the part. And then I turned
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around to put the part in the location. And as I set it down, my back locked up. And so I
dropped it immediately[.]”
Ms. Garlock notified her supervisor and completed an incident report. She declined
treatment and was sent home. She returned to work the next day, but O’Reilly sent her
home again for a few days to “ice” the injury. On August 8, Ms. Garlock asked to see a
doctor, so O’Reilly authorized a telehealth visit. Approximately one week later, Ms.
Garlock requested treatment again, so “Amy” in human resources directed her to an urgent
care clinic. Ms. Garlock never received a panel.
While investigating the claim, O’Reilly asked Ms. Garlock to reenact the injury in
the presence of the “DC manager,” Charles Dwyer, and office supervisor, “Bethany.” Ms.
Garlock did not describe the reenactment but said that afterward, Mr. Dwyer and Bethany
decided she used an improper lifting procedure. Ms. Garlock received “coaching” due to
the event.
An adjuster took her recorded statement before denying the claim on September 13.
The denial reads, “Policy [v]iolation. Utilizing improper lifting procedures covered in
safety training.” Ms. Garlock testified that she was not allowed to work for one week
afterward and went without pay.
After the denial, Ms. Garlock met with Mr. Dwyer, “Amy,” and the adjuster. Ms.
Garlock recorded the conversation. Ms. Garlock asked how they came to their conclusions,
since no one had witnessed the incident. The adjuster told her to appeal the denial. This
petition followed.
Ms. Garlock acknowledged the existence of O’Reilly’s “Strain Prevention Tips and
Guidelines” from its Procedures Manual. Specifically regarding lifting, the document says,
“Lift straight up and smoothly, don’t jerk. Let your legs do the work NOT your back. Do
not twist or turn your body once you have lifted the item. Put the load down slowly.”
(Emphasis in original).
Ms. Garlock testified, “I followed all procedures to a T. Did not miss a single beat.”
She denied that she “twisted” her body, or that she told the adjuster that she “shuffled” or
“shifted” her feet.
On cross-examination, Ms. Garlock agreed that she underwent “extensive” training
on lifting. She said she understood its purpose—injury prevention—and followed it “every
single day.”
O’Reilly questioned Ms. Garlock about her written and verbal statements, post-
injury, that it argued showed she did not follow proper lifting procedure. First, she agreed
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she had written she “turned the wrong way” on the incident report completed immediately
after the accident, but she explained that was merely a “choice of words.”
Second, she acknowledged that in her recorded statement to the adjuster, she had
described the incident as follows: “I turned around and went to go grab it and lift it up and
I guess I didn’t lift correctly and I went to turn and I just locked, my back locked up[.]”
(Emphasis added).
Third, O’Reilly offered a “Team Member Investigation Statement,” where Ms.
Garlock had pointed out the workplace had “no cameras” and had written, “No one was
around when I hurt myself. No one can say if I hurt myself by not using the proper lifting
and twisting.” Ms. Garlock conceded she had not written that she had followed the
procedure.
Fourth, and similarly, during the post-denial conversation, Ms. Garlock agreed she
never said she had followed proper lifting techniques but instead stated that no one had
witnessed the accident or her allegedly using an incorrect method. Ms. Garlock said that
no one had asked her if she had followed the proper method.
Fifth, she had not written in her affidavit that she had followed proper procedures.
But she said that was because the affidavit was supposed to be “brief.”
O’Reilly also offered the testimony of Mike Warren, manager, to bolster its defense.
Mr. Warren confirmed Ms. Garlock’s training and that she received “coaching” after the
accident. He said he would coach or write up other workers if he saw them violating the
lifting policy. He admitted that he did not witness Ms. Garlock’s accident or the
reenactment, nor did he participate in either conversation she had with the adjuster.
As for treatment, records from the first visit at the urgent care clinic documented,
“Lower back pain 2 weeks ago after she picked up a heavy part.” Ms. Garlock was placed
on restrictions.
Ms. Garlock treated on her own several months after the denial with Dr. Snowden.
She offered a letter in which he stated that he diagnosed low back pain and lumbar strain.
Dr. Snowden checked a box stating that, to a reasonable degree of medical certainty, the
work injury she described, lifting car parts, contributed more than fifty percent to her need
for medical treatment. He further wrote that she needs additional treatment, including
injections, but Dr. Snowden placed no work restrictions.
At the hearing, Ms. Garlock maintained she followed the rules and asked that the
Court order medical benefits with Dr. Snowden, payment of past medical bills, and
temporary disability benefits. As to O’Reilly’s defense, she asserted that her words were
“misinterpreted” and “being twisted around.”
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O’Reilly countered that her improper lifting and in particular her turn was willful
misconduct, so its denial was proper. It argued Ms. Garlock’s testimony conflicts with her
written statements. In addition, Ms. Garlock offered no medical bills, nor did she miss
substantial time from work.
Findings of Fact and Conclusions of Law
Ms. Garlock must show that she is likely to prevail at a hearing on the merits that
she is entitled to the requested benefits. Tenn. Code Ann. § 50-6-239(d)(1) (2022);
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*7-8, 9 (Mar. 27, 2015).
Willful misconduct
O’Reilly’s defense is a threshold issue. The Workers’ Compensation Law states,
“No compensation shall be allowed for an injury . . . due to [t]he employee’s willful
misconduct.” Tenn. Code Ann. § 50-6-110(a)(1). The willful misconduct defense consists
of four elements: (1) the employee’s actual, as opposed to constructive, notice of the rule,
(2) the employee’s understanding of the dangers 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. Mitchell v. Fayetteville Pub. Utilities, 368 S.W.3d 442, 453 (Tenn.
2012). The burden of establishing the defense rests upon the employer. Tenn. Code Ann.
§ 50-6-110(b).
Here, O’Reilly asserted the first three Mitchell factors are satisfied.1 It argued that
Ms. Garlock agreed that she knew of the lifting rule and its purpose, injury prevention.
Further, Mr. Warren’s testimony, that he would “coach” or write-up a worker who violated
the rule, shows bona fide enforcement.
But consideration of the fourth Mitchell factor, “the employee’s lack of a valid
excuse for violating the rule,” gives the Court pause.
In Roper v. Allegis Group, 2017 TN Wrk. Comp. App. Bd. LEXIS 14, at *11-12
(Feb. 10, 2017), the Appeals Board held, “In seeking to establish the fourth element of the
Mitchell test, an employer must come forward with evidence that the employee intended
to take the action that violated the known safety rule without a valid excuse.” (Emphasis
in original). The Board wrote that in Mitchell, the employee’s actions were “willful”
because he “elected” to remove protective gloves and offered an unsatisfactory excuse for
his actions. Id.1
Mr. Warren said he would discipline an employee if he were to see them violating the lifting procedure;
he did not say he has done so in the past. Arguably, O’Reilly did not satisfy this element.
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The Board later repeated, twice, that the focus of this factor is upon the intentionality
of the worker’s actions. In Iboy v. Kenten Management, LLC, 2018 TN Wrk. Comp. App.
Bd. LEXIS 23, at *20 (May 8, 2018), the Board affirmed an award of medical benefits after
an expedited hearing, concluding that that the proof did not show that employee “knowingly
violated any workplace rule[.]” (Emphasis added). And, in Oglesby v. United Parcel
Service, 2018 TN Wrk. Comp. App. Bd. LEXIS 34, at *13, (July 18, 2018), the Board
wrote, “An employee’s negligent conduct is not a defense to a claim for workers’
compensation benefits and to succeed on this defense, the employer must establish that the
employee willfully violated a known safety rule.” (Emphasis in original).
This interpretation is longstanding. Shortly after passage of the Workers’
Compensation Law, the Tennessee Supreme Court held, “Willful misconduct means
something more than negligence. It carries the idea of deliberation and intentional wrong-
doing.” Nashville, C. & S. L. R. Co. v. Wright, 147 Tenn. 619, 623 (Tenn. 2022) (emphasis
added).
Here, Ms. Garlock appeared calm, self-assured, steady, forthcoming, and
reasonable. See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014) (listing indicators
of witness credibility). She candidly acknowledged some of her past poor word choices
on written documents and her failures to claim that she was following the rules when she
became injured. The Court finds her credible and credits her hearing testimony: that she
“followed all procedures to a T” when the accident occurred.
Ms. Garlock’s testimony was that she “turned around” to scan the part before the
accident. “And then I turned around to put the part in the location,” she said. “And as I
set it down, my back locked up. And so I dropped it immediately[.]” O’Reilly offered no
contrary evidence as to her account of the injury. It likewise offered no evidence about the
reenactment or how it influenced the decision to deny the claim. Instead, O’Reilly focused
on Ms. Garlock’s written words, and her failure to write that she followed the rules, to craft
its defense.
O’Reilly essentially put form over substance. Rather, a reasonable inference from
Ms. Garlock’s testimony is that the part was heavy, and that her actions can be more
properly characterized as reactions. Stated another way, an unexpectedly heavy item
caused her body to turn, her sudden back pain, and her dropping the part. Nothing about
the way she described the mechanism of injury strikes the Court as an intentional,
deliberate, or willful act to violate O’Reilly’s rule.
In sum, O’Reilly has not shown willfulness or that Ms. Garlock lacked a reasonable
excuse for “violating the rule.” Thus, it has not offered sufficient evidence in support of
its affirmative defense at this expedited hearing, and the Court must assess whether Ms.
Garlock is likely to prevail at trial. Iboy, at *18.
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To prevail at trial, Ms. Garlock must show that her alleged injury arose primarily
out of and in the course and scope of her employment. She must show to a reasonable
degree of medical certainty that a work incident contributed more than fifty percent in
causing her need for medical treatment. Tenn. Code Ann. § 50-6-102(12)(A)-(C).
In a causation letter, Dr. Snowden checked a box stating that, to a reasonable degree
of medical certainty, the work incident Ms. Garlock described, lifting car parts, contributed
more than fifty percent to her need for medical treatment. Dr. Snowden further wrote that
she needs additional treatment. O’Reilly offered no contrary medical opinion. The Court
holds that Ms. Garlock satisfied her burden and is likely to prevail at a hearing on the merits
that her injury arose primarily out of her employment at O’Reilly.
Benefits and penalty referral
Section 50-6-204(a)(1)(A) requires an employer to furnish, free of charge, medical
treatment made reasonably necessary by a work accident. Where an employer refuses to
provide medical treatment and denies an employee’s claim, the employer runs the risk that
a physician of the employee’s choosing will be designated the authorized physician and
that the employer will be responsible for paying for that physician’s treatment. Blevins v.
S. Champion Tray, LP, 2019 TN Wrk. Comp. App. Bd. LEXIS 29, at *16-17 (July 11,
2019).
In this case, O’Reilly denied the claim and afterward refused to provide medical
benefits. Therefore, O’Reilly shall authorize any treatment with Dr. Snowden that is
reasonable, necessary, and related to the work accident.
As to the unpaid medical bills, O’Reilly correctly argued that Ms. Garlock did not
introduce any medical bills into evidence. So, the Court cannot order that it pay them at
this time. She may seek reimbursement at a later hearing.
Ms. Garlock is likewise not entitled to temporary disability benefits on this record.
Dr. Snowden did not take her off work or place restrictions. Ms. Garlock’s authorized
treatment physician placed restrictions, but she continued to work and earn the same wages.
As for the week that she was unpaid after the denial, the Workers’ Compensation Law
allows for no compensation for the first seven days of disability resulting from a work
injury. Tenn. Code Ann. § 50-6-205(a).
Finally, the Court refers the case to the Compliance Program for investigation and
the imposition of penalties for potential statute and rule violations.
O’Reilly directed Ms. Garlock to the urgent care clinic approximately two weeks
after she reported the injury. A penalty referral is proper when an employer fails to timely
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provide a panel. Tenn. Code Ann. § 50-6-118(9). Tennessee Compilation Rules and
Regulations 0800-02-01-.06(1) (May, 2018) also instructs an employer to offer a panel no
later than three business days after receiving notice of a workplace injury when an
employee has requested medical care. Here, O’Reilly sent her to telehealth and later to a
clinic it chose, and it did not offer a panel within three days of notice.
Further, Rule 0800-02-14-.04(6) (September, 2022) requires decisions on
compensability by the adjusting entity within fifteen calendar days of receipt of notice of
the injury. O’Reilly did not deny the claim within that timeframe.
IT IS ORDERED AS FOLLOWS:
1. O’Reilly must authorize an appointment with Dr. Snowden and furnish any
reasonable, necessary, work-related treatment that he recommends.
2. Ms. Garlock’s requests for payment/reimbursement of past medical bills and for
temporary disability benefits are denied at this time.
3. The case is referred to the Compliance Program for consideration of the imposition
of penalties.
4. A status hearing is set for November 20, 2023, at 1:15 p.m. Central Time. You
must dial (615) 532-9552 or (866) 943-0025 to participate.
5. Unless an interlocutory appeal of this Expedited Hearing Order is filed, compliance
with this order must occur by seven business days of entry of this order as required
by Tennessee Code Annotated section 50-6-239(d)(3). Confirmation of compliance
must be submitted by email to WCCompliance.Program@tn.gov by the compliance
deadline. Failure to do so may result in a penalty assessment for non-compliance.
For compliance questions, please contact the Workers’ Compensation Compliance
Unit by email at WCCompliance.Program@tn.gov.
ENTERED September 27, 2023.
________________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
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Appendix
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice and employer’s additional issues
3. Order Setting Status Hearing
4. Hearing Request
5. Status Hearing Order
6. Employer’s Witness and Exhibit List
7. Employer’s Expedited Hearing Position Statement
8. Employee’s notice of filing of voice recording
Evidence:
1. Declaration of Ms. Garlock
2. Notice of Denial
3. Wage Statement
4. Rule 72 Declaration of Andrea Hillis
5. Medical records for Expedited Hearing
6. Transcript and voice recording: Statement from Ms. Garlock to Andrea Hillis
7. Voice recording of post-denial conversation
8. Team Member Injury Report
9. Team Member Investigation Statement Form
10. O’Reilly Auto Parts DC Procedures Manual-Strain Prevention Tips and Guidelines
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on September 27, 2023.
Name Certified Regular Email Sent to
Mail mail
Autumn Garlock, X X autumn.garlock99@gmail.com
employee 21 Bronson Point Apt 101
Lebanon TN 37087
David Goudie, X dgoudie@morganakins.com
employer’s attorney
Compliance X WCCompliance.Program@tn.gov
Program
_______________________________________
Penny Shrum
Clerk, Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
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):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ 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#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
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 Inj.: _______________
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 I 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