DocketNumber: 2017-06-0350
Citation Numbers: 2017 TN WC 147
Judges: Kenneth M. Switzer
Filed Date: 8/2/2017
Status: Precedential
Modified Date: 1/8/2021
FILED August 2 .~ 20 l 7 TN161 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 3 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. 4 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. 5 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 6