McCorkhill, Aaron v. Landon Electric Co., Inc.

FILED
Jul 26, 2023
11:57 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Aaron McCorkhill ) Docket No. 2022-03-0938
)
v. ) State File No. 78680-2021
)
Landon Electric Co, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Lisa A. Lowe, Judge )
Affirmed and Remanded
In this interlocutory appeal, the employer appeals the trial court’s order instructing it to
provide the employee a panel of orthopedic physicians. The employee was injured in an
accident while driving a company-owned vehicle. Prior to the accident, the employee had
been at work, sorting his schedule for the day, when he suffered intestinal issues. Due to
an unfortunate incident, the employee decided to return home to shower and change before
completing sales calls later that day. On the way to his home, while in the company-owned
vehicle, he was involved in a single vehicle accident. His employer denied that the accident
occurred in the course and scope of his employment, asserting accidents on the way to and
from work are not compensable. The trial court determined that this case was an exception
to the general rule because the employee was in a company-provided vehicle and was not
on a personal errand. The employer has appealed. After careful consideration of the entire
record, we affirm the court’s determination and remand the case.
Judge Meredith B. Weaver delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Pele I. Godkin joined.
Wm. Richie Pigue and Matthew C. Pietsch, Nashville, Tennessee, for the employer-
appellant, Landon Electric Co., Inc.
Aaron McCorkhill, Rocky Top, Tennessee, employee-appellee, pro se
Factual and Procedural Background
Aaron McCorkhill (“Employee”) worked for Landon Electric Co., Inc.
(“Employer”), as a field salesman. On August 18, 2021, he reported to the office between
1
6:30 and 7:00 a.m. and began planning his route for his various sales calls of the day, the
first of which was scheduled for 8:00 a.m. Before leaving for his first appointment,
however, Employee had some gastrointestinal distress and suffered an incident that
resulted in the need for him to go home and shower and change before making his
scheduled sales calls.
Employee left in a work vehicle provided by Employer. On his way home, at
approximately 7:30 a.m., he was involved in a single vehicle accident. The vehicle left the
road, hit a ditch, and rolled over, ultimately stopping upright. Employee contacted the
police and then phoned Employer to inform the owner of the accident. Employer asked if
he needed an ambulance, and Employee advised he had a friend coming to take him to the
hospital. After speaking with the police at the scene, Employee’s friend drove him home
to shower and change and then drove him to the hospital.
At the hospital, a CT scan was performed, and Employee was diagnosed with a
fractured sternum. Approximately a week later, Employee continued to have issues with
his back and went to his family physician, Dr. Gertrude Nuarla. Dr. Nuarla diagnosed him
with a fractured vertebra and told him to seek treatment with an orthopedic physician. 1
Employee sought treatment with Dr. Luke Madigan at Knoxville Orthopedic Group, who
performed back surgery in January 2022. 2 Also in January 2022, Employee noticed issues
with his hearing in his right ear. He sought treatment with Dr. Charles Sewell, who
performed an exam and recommended a hearing aid, which Employee purchased.
Employer ultimately terminated Employee for reasons unrelated to his accident and
injuries, and Employee filed a petition for benefit determination on August 18, 2022. 3 In
the petition, Employee asked for payment of his past medical bills, a panel of physicians,
and temporary total disability. Mediation was unsuccessful, and a dispute certification
notice was filed, identifying the disputed issues as compensability, medical benefits, and
temporary total disability.
At the expedited hearing on April 19, 2023, Employer argued the claim was not
compensable as it occurred while Employee was on a personal errand and not while he was
in the course and scope of performing his job. The trial court determined that, while most
injuries that occur when an employee is travelling to and from work are not compensable,
1
It is unclear from the record what discussions, if any, were had between Employee and Employer regarding
Employee’s need for medical treatment. However, Employer filed a Notice of Denial dated December 2,
2021, stating the injuries did not arise from and were not in the course and scope of his employment.
2
There are no medical records in the record on appeal, and the medical bills in the record were admitted
for identification only. This medical history is primarily based on Employee’s testimony at his deposition,
which was admitted as an exhibit at the hearing.
3
The petition lists a date of injury of August 18, 2022, which appears to be in error.
2
Employee was likely to prevail in proving at trial that his accident was an exception to the
general rule. The court further stated that it was reasonable to infer that Employee should
not make in-person sales calls to Employer’s customers in soiled clothing, and as such, his
decision to go home to change was of benefit to Employer. It ordered Employer to provide
a panel of orthopedic physicians but denied Employee’s request for payment of medical
bills related to his emergency room visit, back surgery, and hearing treatment, as Employee
did not provide any medical records to establish that the charges were causally related to
the accident or any proof that the expenses were reasonable and necessary. Employer has
appealed.
Standard of Review
The standard we apply in reviewing a trial court’s decision presumes that the court’s
factual findings are correct unless the preponderance of the evidence is otherwise. See
Tenn. Code Ann. § 50-6-239(c)(7) (2022). Conversely, the interpretation and application
of statutes and regulations are questions of law that are reviewed de novo with no
presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also
mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a way
that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-116(2022).
Analysis
On appeal, Employer asserts the trial court erred in determining Employee was
likely to prove the accident occurred in the course and scope of his employment. Stated
another way, the question is whether Employee’s driving home to change his clothing prior
to an appointment with a client was a personal errand such that his injuries are not likely
to be proven compensable.
Generally speaking, an employee is not in the course of employment if he or she is
injured while traveling to or from work. Hubble v. Dyer Nursing Home, 188 S.W.3d 525,
534 (Tenn. 2006). This is often referred to as the “going and coming rule.” Howard v.
Cornerstone Med. Assocs., P.C., 54 S.W.3d 238, 240 (Tenn. 2001). Our Supreme Court
has provided the following rationale for the rule:
The reason supporting this rule is evident: travel to and from work is not,
ordinarily, a risk of employment. Rather, driving to work falls into the group
of all those things a worker must do in preparation for the work day, such as
dressing; and driving home from work is often a prerequisite to getting home.
While this travel is some modicum of benefit to the employer, travel to and
3
from work is primarily for the benefit of the employee: if he doesn’t present
himself at the work place, he is not compensated for his labors.
Sharp v. Northwestern Nat’l. Ins. Co., 654 S.W.2d 391, 392 (Tenn. 1983). However, there
are exceptions to this rule, including when an employer provides a vehicle to its employee:
It is well settled law in this State that where transportation is furnished by an
employer as an incident of the employment, an injury suffered by the
employee while going to or returning from his work in the vehicle furnished
arises out of and is within the course of the employment.
Eslinger v. F & B Frontier Construction Co., 618 S.W.2d 742, 744 (Tenn. 1981).
Employer argues this exception does not apply because, regardless of the fact he
was driving a company vehicle, Employee was on a personal errand at the time of the
accident, removing him from the course of employment. In making this argument,
Employer relies on Choate v. Athens Mfg. Corp., 675 S.W.2d 169 (Tenn. 1984), a case in
which our Supreme Court affirmed a denial of benefits. The employee in Choate had a
company car; however, he was not using that vehicle at the time of the accident. Instead,
he had traveled in his supervisor’s wife’s vehicle to perform repairs to the company’s
houseboat over the weekend. Id. While there, the employee was contacted by his son and
was told he needed to return home. Id. at 170. On his way home in his supervisor’s wife’s
vehicle, the employee was in an accident for which he attempted to obtain workers’
compensation benefits. Id. The trial court dismissed the case, and our Supreme Court
affirmed that dismissal stating the employee was on a personal errand. Id. at 171.
We find Employer’s reliance on Choate to be misplaced in this case. First, the
employee in Choate was not operating a company vehicle, and second, the employee was
returning home at the request of a family member for the remainder of the evening. Id. at
170-71. In the case at hand, Employee was using his company vehicle to return home to
change his soiled clothing before making sales calls on Employer’s behalf. Employee
provided unrefuted testimony that he had not ceased working for the day and that he
intended to proceed immediately to those calls upon completing that task. Thus, it was not
solely a personal mission. Furthermore, as stated by our Supreme Court:
Such acts as are necessary to the life, comfort, and convenience of the servant
while at work, though strictly personal to himself, and not acts of service, are
incidental to the service, and injury sustained in the performance thereof is
deemed to have arisen out of the employment. . . . In these and other
conceivable instances he ministers unto himself, but in a remote sense these
acts contribute to the furtherance of his work. . . . That such acts will be done
in the course of employment is necessarily contemplated, and they are
inevitable incidents. Such dangers as attend them, therefore, are incident
4
dangers. At the same time injuries occasioned by them are accidents
resulting from the employment.
Carter v. Hodges, 132 S.W.2d 211, 214 (Tenn. 1939) (internal citations omitted) (citing
Tennessee Chem. Co. v. Smith, 238 S.W. 97, 99 (Tenn. 1921)).
Although Employee admitted his errand was personal in nature, the errand also had
a business purpose and contributed to the “furtherance of his work.” “Travel that serves a
dual purpose, the employer’s and the employee’s . . ., will still be considered to be within
the scope of employment.” Gunter v. Estate of Armstrong, 600 S.W.3d 916, 924-925
(Tenn. Ct. App. 2019) (citing Tennessee Farmers Mut. Ins. Co. v. American Mut. Liability
Ins. Co., 840 S.W.2d 933, 938 (Tenn. Ct. App. 1992)). As observed by our Supreme Court
previously:
[a]n employee’s status of acting in the course of his employment is not
destroyed by the fact that he may pursuing a dual purpose. The dual purpose
doctrine allowing compensation applies where a special trip would have had
to be made for the employer if the employee had not combined the service of
the employer with his own going or coming trip.
Nikola v. Haven Harbor, Inc., 620 S.W.2d 82, 84 (Tenn. 1981) (internal citations omitted)
(citing 82 Am. Jur. 2d Workers’ Compensation § 288 (1976)). In this case, Employer had
provided a vehicle to Employee for him to come and go to work and complete sales calls.
In order for Employee to perform his work that particular day, he was returning home to
change out of soiled clothes and into clothes appropriate for his job. Therefore, in light of
Employee’s testimony and Employer’s furnishing a vehicle for his work tasks, we cannot
conclude that the evidence preponderates against the trial court’s decision.
Conclusion
For the reasons stated above, we affirm the trial court’s award of medical benefits
and remand the case. Costs on appeal are taxed to Employer.
5
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Aaron McCorkhill ) Docket No. 2022-03-0938
)
v. ) State File No. 78680-2021
)
Landon Electric Co., Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Lisa A. Lowe, Judge )
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 26th day
of July, 2023.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Wm. Ritchie Pigue X rpigue@tpmblaw.com
Matthew C. Pietsch matt@tpmblaw.com
mwatson@tpmblaw.com
Aaron McCorkhill X aaronmccorkhill@ymail.com
aaron_mccorkhill@milacron.com
Lisa A. Lowe, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Matthew Keene
Acting Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-532-1564
Electronic Mail: WCAppeals.Clerk@tn.gov