              TENNESSEE BUREAU OF WORKERS’ COMPENSATION
             IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                              AT NASHVILLE

CHAD INGRAM,                                            )
           Employee,                                    )
v.                                                      )    Docket No. 2016-06-2191
GROCERS ICE & COLD STORAGE                              )
CO., INC.,                                              )
           Employer,                                    )    State File No. 21968-2016
and                                                     )
                                                        )
ZURICH AMERICAN INSURANCE                               )    Judge Joshua Davis Baker
CO.,                                                    )
        Carrier.                                        )

                             COMPENSATION HEARING ORDER

        This matter came before the Court for a Compensation Hearing on July 18, 2017.
The parties settled initial benefits, so the only remaining issue for resolution is Mr.
Ingram’s entitlement to increased permanent partial disability benefits under Tennessee
Code Annotated section 50-6-207(3)(D) (2016) because he was not working for Grocers
Inc. (“Creation Gardens”)1 when his initial compensation period expired. The central
legal issue is whether Creation Gardens fired Mr. Ingram for cause, precluding recovery
of increased benefits. The Court holds that Creation Gardens fired Mr. Ingram for cause,
denies his claim for increased benefits, and dismisses his case.

                                             History of Claim

       While working as a driver for Creation Gardens, Mr. Ingram broke his left wrist in
March 2016 after falling from a truck when the pull strap for the door snapped. Creation
Gardens accepted the claim and provided Mr. Ingram medical and temporary disability
benefits. Dr. Phillip Coogan repaired Mr. Ingram’s wrist, assigned him an impairment

1
 Creation Gardens is the name of the Nashville area branch of Grocers Inc. The company sells and delivers produce
and other items to Nashville area restaurants.
rating of 4% to the body as a whole, and released him to return to work in September
2016. Afterward, the parties reached a settlement in which Mr. Ingram received payment
for eighteen weeks of permanent partial disability benefits.2 This payment satisfied all
permanent partial disability benefits for Mr. Ingram’s initial compensation period, which
expired January 12, 2017.

        Mr. Ingram returned to work for Creation Gardens at the same rate of pay but was
terminated for reasons he did not “understand” less than three weeks after the Court
approved his settlement and before expiration of his compensation period. He
characterized his termination as “workplace retaliation for getting injured on the job,”
asserting Creation Gardens terminated him to avoid paying his pre-injury wage,
approximately $7.00 more per hour than other drivers earned. He admitted working
without difficulty from September until his termination on December 9, 2016.

      In addition to his own testimony, Mr. Ingram introduced testimony from three
supervisors: Eric Allen, Logan Vincent and Michael Sprouse. While they agreed that Mr.
Ingram performed well in his job and some even agreed he went above the “call of duty,”
none participated in the termination decision. However, Mr. Sprouse referenced Mr.
Ingram’s “insubordinate” and confrontational behavior, saying Mr. Ingram “had it out”
with Robert Noble, the operations manager for the Nashville division.

        In testimony, Mr. Noble described Mr. Ingram’s work history and explained his
termination. At the time of his injury, Creation Gardens had promoted Mr. Ingram from
driving into training for an operations position. After moving into this position, staff
from Creation Garden’s in Bowling Green, Kentucky began supervising Mr. Ingram.
Despite the change in supervision, Mr. Ingram continued to work from the Nashville
office. After he returned to work following his injury, however, Creation Gardens did
not have that operations position available, so Mr. Ingram began working again as a
driver in Nashville. He also came back under Mr. Noble’s supervision.

       After Mr. Ingram returned, Mr. Noble documented two customer complaints
concerning Mr. Ingram in September 2016 and several confrontations he had with Mr.
Ingram in October and December 2016. Mr. Noble explained that a Creation Gardens
customer complained that Mr. Ingram rudely retrieved some milk crates during a
delivery. Another customer complained Mr. Ingram intentionally displayed a “split” in
his pants, exposing his underwear to several people in its bakery during a delivery. In
October 2016, Mr. Noble began having confrontations with Mr. Ingram over policy and
minor workplace problems. Specifically, Mr. Ingram became angry when he needed to

2
 At this hearing, the parties stipulated to the degree of impairment, date of injury and compensation rate, and also
agreed that Creation Gardens paid all medical bills related to Mr. Ingram’s injury.

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leave early, yet staff added stops to his route and added eggplant to his “pick sheet” when
it was not in stock. Mr. Noble said Mr. Ingram slammed his “pick sheet” onto Mr.
Noble’s desk and demanded to know what he should do about the eggplant. When his
tone and manner became increasingly aggressive, Mr. Noble instructed him to clock out.

       Mr. Noble’s difficulty with Mr. Ingram culminated in two heated confrontations
on December 7th and 8th, provoking his termination on the 9th. On the 7th, Mr. Ingram
“raised his voice” and acted “disrespectful[ly]” toward Mr. Noble over a new policy.
Finally, on the 8th, Mr. Ingram complained vociferously about loads shifting in transit and
blamed those who loaded the truck rather than accepting responsibility as a driver. When
Mr. Noble implied Mr. Ingram’s driving was responsible by saying that no other driver
was complaining, Mr. Ingram angrily circled the warehouse to confront drivers about
loads shifting during transit. He also complained about new responsibilities and used
profane language. The following day, Creation Gardens fired him, citing poor work
performance in his separation notice.

                        Findings of Fact and Conclusions of Law

       The only issue to be determined is whether Mr. Ingram is entitled to increased
permanent partial disability benefits as a result of his termination prior to expiration of
the compensation period. Creation Gardens claims it fired him for cause, which would
bar recovery of those benefits. Mr. Ingram asserts his termination was pretext. The
Court holds that Mr. Ingram failed to establish entitlement to additional benefits and
denies his claim.

       The following general principle governs adjudication of this compensation hearing
where Mr. Ingram seeks increased benefits under Tennessee Code Annotated section 50-
6-207(3)(B) (2016). In order to prevail, Mr. Ingram “must establish by a preponderance
of the evidence that he [is] entitled to the requested benefits.” Willis v. All Staff, 2015 TN
Wrk. Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50-
6-239(c)(6) (2015) (“[T]he employee shall bear the burden of proving each and every
element of the claim by a preponderance of the evidence.”).

       Any employee who does not work for his pre-injury employer when the “period of
compensation” ends may file a new petition for benefit determination seeking “increased
benefits.” The amount of benefits due depends upon several factors, including the
employee’s age, educational achievement, and county of residence. Tenn. Code Ann. §
50-6-207(3)(B) (2016). However, if the employer fires the employee for “misconduct
connected to the employee’s employment,” the Workers’ Compensation Law bars the
employee from recovering increased benefits. Id. at 50-6-207(3)(D)(ii). As this is an
affirmative defense, Creation Gardens bears the burden of proving employment-related
misconduct resulted in termination.
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       An employer is entitled to enforce workplace rules and decorum, so the Court
must determine if (1) the actions precipitating the employee’s dismissal qualified as
misconduct under established or ordinary workplace rules and/or expectations; and (2)
that those actions were the motivation for dismissal. Jones v. Crencor Leasing and Sales,
2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *8-9 (Dec. 11, 2015).

       While Mr. Ingram qualified to request additional benefits because Creation
Gardens terminated him before his initial compensation period expired, the Court finds
Creation Gardens fired Mr. Ingram for misconduct. His supervisor and others portrayed
his behavior as confrontational, argumentative, insubordinate and disrespectful. He
behaved rudely or crassly enough to warrant complaints from customers in September; he
was told to clock out early after a confrontation with his supervisor in October; he
challenged implementation of a new policy in December; he used profanity; and he
angrily confronted other drivers when arguing with his supervisor about shifting loads.
The Court finds this behavior violated ordinary workplace expectations and precipitated
Mr. Ingram’s termination. An employer cannot be required to tolerate inappropriate
behavior in the workplace simply because an employee suffered a work-related injury.

       Further, Mr. Ingram presented insufficient evidence that his termination was a
pretext. He did not deny or refute any witness’ characterizations of his behavior.
Instead, he alleged he was fired because Creation Gardens did not want to pay his pre-
injury wages, which were significantly higher than other drivers’ wages. The Court does
not find that argument persuasive. While it is unfortunate his operations-training position
was unavailable when he returned, he admitted earning his pre-injury wage and working
without difficulty. Other than the fact that Creation Gardens paid him more money than
other drivers, no proof indicated Creation Gardens targeted him for dismissal. In fact,
supervisors at Creation Gardens felt favorably toward him until his inappropriate
behavior escalated into challenging his supervisor’s authority and control.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Ingram’s claim for increased benefits is denied, and the case is dismissed with
      prejudice.

   2. The Court assesses the $150.00 filing fee to Grocers Inc. pursuant to Tennessee
      Compilation Rules and Regulations 0800-02-21-.07 (2017), for which execution
      shall issue as necessary.

   3. Absent an appeal of this order by either party, the order shall become final thirty
      days after issuance.

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ENTERED ON THIS THE 28TH DAY OF JULY, 2016.




                         _____________________________________
                         Judge Joshua Davis Baker
                         Court of Workers’ Compensation Claims




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                                      APPENDIX

Technical record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Request for Scheduling Hearing
   4.   Employer’s Pre-Hearing Statement and Exhibits
   5.   Employee’s Witness and Exhibit List
   6.   Employer’s Motion to Quash Subpoenas of Eric Allen, Logan Vincent, and Scotty
        Sprouse

The Court did not consider attachments to Technical Record filings unless admitted into
evidence during the Compensation Hearing. The Court considered factual statements in
these filings or any attachments to them as allegations unless established by the evidence.

Stipulated Findings of Facts of the Parties:
     The alleged date of injury is March 16, 2016.
     The workers’ compensation rate is $465.12 per week.
     The impairment rating is 4 percent to the body as a whole
     The initial period of compensation expired January 12, 2017
     Mr. Ingram is forty-nine years old.
     Mr. Ingram has a twelfth grade education
     All medical benefits have been paid.

Exhibits:
    EXHIBIT 1: Creation Gardens Employee Warning Report
    EXHIBIT 2: “Effective Immediately” Letter
    EXHIBIT 3: Separation Notice
    EXHIBIT 4: Creation Gardens Invoice with “Special Instructions”




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                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing was sent to the
following recipients by the following methods of service on this the ___
                                                                      28th day of July,
2017.



 Name                 Certified   Via      Via      Service sent to:
                       Mail       Fax     Email
 Chad Ingram             X                  X       253 Fairway Drive
                                                    Nashville, Tennessee 37214
                                                    Chadingram47@gmail.com
 David Weatherman                             X     David.weatherman@zurichna.com




                                  _____________________________________
                                  Penny Shrum, Clerk
                                  Court of Workers' Compensation Claims
                                  WC.CourtClerk@tn.gov




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