             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

James Neal                                   )   Docket No. 2016-06-1872
                                             )
v.                                           )   State File No. 65631-2016
                                             )
Connect Express, LLC, et al.                 )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Joshua D. Baker, Judge                       )


                  Affirmed and Remanded - Filed January 30, 2017


In this interlocutory appeal, the employer has challenged the trial court’s exclusion of
affidavits from evidence in an expedited hearing and its determination that the employer
did not prove the affirmative defense of willful misconduct. The parties stipulated that
the employee’s injuries, which resulted from a motor vehicle accident, arose primarily
out of and within the course and scope of his employment. The employer denied the
claim on the basis that the accident was caused by the employee’s failure to follow the
rules of the road, resulting in the truck he was operating rolling over. We affirm the trial
court’s decision and remand the case for further proceedings as may be necessary.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, and Judge Timothy W. Conner joined.

J. Allen Callison, Brentwood, Tennessee, for the employer-appellant, Connect Express
LLC

Michael P. Fisher, Nashville, Tennessee, for the employee-appellee, James Neal




                                             1
                                     Memorandum Opinion1

       James Neal (“Employee”) suffered multiple injuries when the truck he was
operating rolled over while he was negotiating a curve on an interstate exit ramp.
Connect Express, LLC (“Employer”), denied his claim for workers’ compensation
benefits on the basis that Employee willfully violated a safety rule and was barred from
receiving benefits by Tennessee Code Annotated section 50-6-110(a). The parties
stipulated that the injuries arose primarily out of and in the course and scope of the
employment. The primary issue at the expedited hearing was whether Employer
established the affirmative defense of willful misconduct.

        The safety rule in question was a general rule that Employer’s representative
testified required drivers to “follow the rules of the road.” Employer’s representative
testified that this would have been discussed with Employee at the time of his hiring and
would have been contained in documentation he signed and received. Employee denied
receiving an employee handbook, and neither a handbook nor other documentary
evidence of rules that Employee was obligated to follow was entered into evidence.
Employer’s representative acknowledged that he was not present when Employee signed
the documentation to begin work for Employer, and that he was, therefore, unable to
comment with respect to whether Employee actually received a handbook or instruction
concerning Employer’s rules.

        Employee acknowledged that he was aware he was supposed to follow the “rules
of the road” and that the rationale for this directive was related to safety concerns. At the
expedited hearing, Employer attempted to introduce into evidence the affidavit of the
police officer who investigated the scene of the accident and the affidavit of an engineer
who reviewed the truck’s on-board event data recorder to determine the cause of the
accident. These affidavits were offered as expert proof, and Employee objected to their
admission into evidence on the basis that the affidavits were not timely submitted in
accordance with the Court of Workers’ Compensation Claims’ Practices and Procedures
and the Bureau of Workers’ Compensation’s regulations. Employee also objected to
their admission on the basis of hearsay, on the basis that he was unable to cross-examine
the witnesses, and on the basis that Employer had not adequately established that the
affiants were experts qualified to testify regarding the cause of the accident. The trial
court took the objections under advisement and, in its order awarding benefits, excluded
consideration of the affidavits based upon their untimely submission. The trial court
ordered Employer to provide a panel of physicians and temporary disability benefits,
finding Employer had failed to establish the affirmative defense of willful misconduct.
Employer has appealed.
1
 “The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Appeals Bd. Prac. & Proc. § 1.3.
                                                   2
        Employer asserts on appeal that the trial court erred in excluding the affidavits of
its expert witnesses; that the trial court erred in finding there was no safety rule in place;
that the trial court erred in ordering Employer to pay for past medical expenses related to
Employee’s injuries; and that the trial court erred in concluding that, even if Employee
was speeding, Employee’s behavior was not a willful violation of a safety rule. We find
no merit in any of these arguments.

        The trial court excluded Employer’s expert witness affidavits, finding “both
affidavits were submitted outside the timeframe called for within the Court of Workers’
Compensation Claims’ Practices and Procedures, Rule 7.02(A).” Rule 7.02(A) requires
that “no later than five business days after [a motion for expedited hearing] is filed . . .,
the opposing party shall file a response and attach affidavits, declarations, or other
evidence demonstrating that the moving party is not entitled to the benefits or relief
sought.”2 There is no dispute that Employer failed to file its affidavits within five
business days of the filing of Employee’s request for expedited hearing. In its brief on
appeal, Employer asserts a three-part attack on the trial court’s refusal to admit the
affidavits into evidence. First, it argues that the prohibition in Tenn. Comp. R. & Regs.
0800-02-21-.14(1)(b) (2015) against submitting information more than five days after the
filing of the request for expedited hearing only applies to “information in its possession”
at the time the request for expedited hearing is filed and does not apply to affidavits that
are submitted in response to the request.3 It argues that the regulation contemplates that
affidavits opposing a request for an expedited hearing may be produced more than five
business days after the filing of the request for a hearing. Second, Employer argues that
Rule 7.02(A) of the trial court’s practices and procedures, on which the court relied in
excluding the affidavits, was adopted “outside the scope of Supreme Court Rule 18
[which permits trial courts to adopt local rules of practice] and outside the Uniform
Administrative Procedures Act.” Finally, Employer asserts that Rule 7.02(A) conflicts
with the Bureau’s regulations and therefore must yield to the regulations as provided in
Rule 1.01 of the trial court’s practices and procedures.

        Initially, we note that prior to the trial court hearing testimony and while in the
process of identifying exhibits that were to be introduced into evidence at the hearing,
Employee objected to the affidavits in question, noting “the basis for our objection is
officially Rule 7.02(A),” and also referencing Tenn. Comp. R. & Regs. 0800-02-21-
.14(1)(b). Employee additionally objected on the basis the affidavits contained

2
  Rule 7.02(A) was changed, effective January 5, 2017, to require a party opposing the initiation of
temporary disability or medical benefits to file its documentation in support of its position no later than
ten business days prior to the hearing.
3
 “Immediately upon receiving the motion, but in no event later than five (5) business days after the
motion is filed with the clerk, the opposing party shall submit all information in its possession
demonstrating that the employee is not entitled to temporary disability or medical benefits.” Tenn. Comp.
R. & Regs. 0800-02-21-.14(1)(b) (2015).
                                                    3
inadmissible hearsay and the affidavit of the investigating police officer did not include a
proper foundation to permit the officer to express an expert opinion. In response,
Employer argued the officer’s affidavit included sufficient information to qualify the
officer to provide an expert opinion. Employer also argued that it disclosed its witnesses
before obtaining the affidavits, and that it should, therefore, be entitled to submit the
affidavits.

         However, in the trial court Employer did not raise the argument upon which it
relies in its appeal that the trial court’s practices and procedures were “adopted outside
the scope of Supreme Court Rule 18 and outside the Uniform Administrative Procedures
Act.” Nor did Employer raise in the trial court the contention advanced on appeal that
Rule 7.02(A) of the court’s practices and procedures conflicts with the provisions of
0800-02-21-.14(1)(b) and must, therefore, yield to the regulation in accordance with Rule
1.01 of the practices and procedures. As we have previously noted, it is well-established
that, apart from limited exceptions not applicable here, issues not presented to and
decided by the trial court will not be considered by appellate courts. Simpson v. Frontier
Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn. 1991). Here, the trial court was not
given the opportunity to rule on these arguments being advanced by Employer on appeal.
Consequently, Employer has waived its right to raise the arguments on appeal. See State
v. Walker, 910 S.W.2d 381, 396 (Tenn. 1995); Long v. Hamilton-Ryker, No. 2015-07-
0023, 2015 TN Wrk. Comp. App. Bd. 23, at *14 (Tenn. Workers’ Comp. App. Bd. July
31, 2015).

          The parties did address in the trial court whether Employer timely complied with
Tenn. Comp. R. & Regs. 0800-02-21-.14(1)(b) in submitting the two affidavits.
Employer asserts on appeal that the regulation’s requirement for submitting “all
information in its possession demonstrating that the employee is not entitled to temporary
disability or medical benefits” within five business days of the filing of the request for
expedited hearing did not apply to the affidavits because it did not possess the affidavits
at the time of the filing of the request for expedited hearing. 4 Although the trial court
referenced the regulation in its analysis, the trial court’s determination that the affidavits
were inadmissible was based upon its finding that “both affidavits were submitted outside
the timeframe called for within the Court of Workers’ Compensation Claims’ Practices
and Procedures.” In contrast to the regulation in effect at the time of the expedited
hearing, Rule 7.02(A) of the trial court’s practices and procedures specifically requires
the party contesting a request for expedited hearing, “immediately upon receiving the
request for expedited hearing, but no later than five business days after the motion is filed
. . . [to] file a response and attach affidavits, declarations or other evidence demonstrating
4
  Tenn. Comp. R. & Regs. 0800-02-21-.14(1)(b) was changed, effective November 30, 2016, to require
the party opposing the request for expedited hearing to “submit all documents to the clerk, including any
affidavits, demonstrating the moving party is not entitled to the requested relief no later than ten (10)
business days before the date of the expedited hearing,” consistent with the provisions of Rule 7.02(A) of
the practices and procedures as effective on January 5, 2017. See footnote 2.
                                                    4
that the moving party is not entitled to the benefits or relief sought.” Accordingly, the
trial court did not err in excluding the affidavits based upon their untimely submission as
required by Rule 7.02(A) of the trial court’s practices and procedures.

       Furthermore, “[b]ecause the trial court acts as a gatekeeper in assessing the
admissibility of expert testimony, a trial court’s determination regarding admissibility
will not be overturned absent an abuse of discretion.” Skaggs v. Phillips, No. E2012-
02479-WC-R3-WC, 2014 Tenn. LEXIS 12, at *12 (Tenn. Workers’ Comp. Panel Jan. 15,
2014). “A trial court abuses its discretion only when it ‘applies an incorrect legal
standard or reaches a decision which is against logic or reasoning that causes an injustice
to the party complaining.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)
(quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). We cannot conclude from
the record that the trial court abused its discretion or otherwise erred in excluding the
affidavits that were not filed within the time frame established in Rule 7.02(A).

        Turning to whether Employer presented sufficient evidence for the court to
determine whether it would likely prevail at trial on the affirmative defense of willful
misconduct, it stands to reason that the existence of a violation must occur to successfully
invoke this defense. Without the affidavits, there is no proof in the record that Employee
violated the mandate to follow the “rules of the road.” There were no witnesses to the
accident other than Employee, and he testified that he did not know his exact speed, as he
was not looking at the speedometer at the time of the accident. He further testified that,
based on his four years of experience as a truck driver and on the road conditions in that
location at that time, he did not believe he was driving too fast. While acknowledging
that he did not know or remember his speed at the time of the accident, he also testified
that he did not believe he was exceeding the speed limit. In short, Employer has not
presented sufficient proof that a violation of a safety rule occurred. Indeed, in its closing
argument Employer acknowledged that if the information in the affidavit of the engineer
concerning the event data recorder was not admitted into evidence, “my case falls apart.
I will readily admit that for the record.” We have no difficulty determining Employer
failed to establish the affirmative defense of willful misconduct.

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court’s decision at this interlocutory stage of the case. Nor does the trial court’s
decision violate any of the standards identified in Tennessee Code Annotated section 50-
6-217(a)(3). The trial court’s decision is affirmed, and the case is remanded for any
further proceedings that may be necessary.




                                              5
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

James Neal                                               )   Docket No.   2016-06-1872
                                                         )
v.                                                       )   State File No. 65631-2016
                                                         )
Connect Express, LLC, et al.                             )


                                     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 30th day of January, 2017.
 Name                    Certified   First Class   Via   Fax      Via     Email Address
                         Mail        Mail          Fax   Number   Email

 Michael P. Fisher                                                  X     mfisher@ddzlaw.com
 J. Allen Callison                                                  X     acallison@chartwelllaw.com
 Joshua D. Baker,                                                   X     Via Electronic Mail
 Judge
 Kenneth M. Switzer,                                                X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: Matthew.Salyer@tn.gov
