                 TENNESSEE DIVISION OF WORKERS’ COMPENSATION
                    WORKERS’ COMPENSATION APPEALS BOARD

Employee: Luciano Gonzales               )                 Docket No. 2014-06-0015
                                         )
Employer: ABC Professional Tree Services )                 State File No. 57318-2014


In accordance with Rule 0800-02-22-.02(6), please find attached the Workers’
Compensation Appeals Board’s Order and Opinion Affirming and Remanding
Interlocutory Order of Court of Workers' Compensation Claims in the referenced case.

                                   CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Order and Opinion Affirming and
Remanding Interlocutory Order of Court of Workers' Compensation Claims was sent to
the following recipients by the following methods of service on this the 10th day of
November, 2014.
 Name                  Certified   First Class   Via   Fax       Via     Email Address
                       Mail        Mail          Fax   Number    Email

 Landon Lackey,                                                    X     landon@rockylawfirm.com
 Employee’s Attorney
 Nicole M. Grida,                                                  X     Nicole.grida@zurichna.com
 Employer’s Attorney
 Kenneth M. Switzer,                                               X     Kenneth.Switzer@tn.gov
 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
              TENNESSEE DIVISION OF WORKERS’ COMPENSATION
                 WORKERS’ COMPENSATION APPEALS BOARD


Employer: ABC Professional Tree Services ) State File No. 57318-2014
                                         )
Employee: Luciano Gonzales               ) Docket No. 2014-06-0015
                                         )
                                         )
Appeal from the Court of Workers’        )
Compensation Claims                      )
Kenneth M. Switzer, Judge


                 Affirmed and Remanded – Filed November 10, 2014


        ORDER AND OPINION AFFIRMING AND REMANDING
  INTERLOCUTORY ORDER OF COURT OF WORKERS’ COMPENSATION
                          CLAIMS

This interlocutory appeal involves a tree-trimmer who suffered a broken leg as a result of
falling from a tree when he accidently severed a lanyard affixed to his safety belt and
harness. The employer denied the claim, asserting the employee’s injury was due to the
employee’s willful misconduct and/or willful failure or refusal to use a safety device
when he failed to tie-in to a climbing rope before engaging in cutting. The court of
workers’ compensation claims found that the employee chose to disregard the tie-in
policy, resulting in the accident and injury, and that the employer successfully asserted
the defense of willful misconduct. The employee appealed. Having carefully reviewed
the record, we affirm the decision of the court of workers’ compensation claims.

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

Landon Lackey, Nashville, Tennessee, for the employee-appellant, Luciano Gonzales

Nicole M. Grida, Memphis, Tennessee, for the employer-appellee, ABC Professional
Tree Services
                                            1
                             Factual and Procedural Background

       Luciano Gonzales (“Employee”) is a 27-year old resident of Oak Grove,
Kentucky. At the time of his July 1, 2014 injury, Employee had been employed by ABC
Professional Tree Services (“Employer”) for almost two years as a tree-climber/trimmer.

       On August 26, 2014, Employee filed a Petition for Benefit Determination (“PBD”)
seeking temporary disability benefits and medical benefits. Employee alleged in his PBD
that he was injured July 1, 2014, when he fell while trimming a tree within the course of
his employment. On July 30, 2014, Employer filed a Notice of Denial of Claim wherein
Employer asserted Employee’s claim “is being denied as evidence supports willful
misconduct as claimant violated safety procedures and intentionally caused . . . harm to
himself.”

       Following an unsuccessful mediation, a Dispute Certification Notice (“DCN”) was
issued September 29, 2014, by a workers’ compensation mediator. The DCN identified
the disputed issues to include medical benefits, temporary disability benefits and
compensability. Defenses identified in the DCN were limited to “willful misconduct /
willful failure or refusal to use safety device.” Employee filed a request for expedited
hearing September 29, 2014, and the trial judge exercised his discretion to conduct a full
evidentiary hearing on the disputed issues as authorized by Tennessee Code Annotated
section 50-6-239(d) (2014).1

       The hearing was conducted telephonically on October 18, 2014. There were
technical challenges due to the hearing being conducted telephonically, and we note that
no objection was raised to the witnesses testifying by telephone or to the telephonic
hearing.

       Three witnesses testified. Employee’s witnesses included himself and a former
co-worker, Anthony Kelly. Employer’s Safety Director, Rick Bentley, testified on
behalf of Employer. Employee acknowledged in his testimony that he received training
as to the safety rules required for his position as a tree-trimmer. Employer’s “Climber
Trimmer Proficiency Guidelines” were introduced into evidence, which Employee
admitted reviewing and initialing. He also admitted successfully completing the


1
  The trial judge has the authority to “issue an interlocutory order either awarding or denying temporary
disability or medical benefits based on a review of the documents submitted and without convening a
formal hearing.” Tenn. Comp. R. & Regs. 0800-02-21-.02(13) (2014). See also Tenn. Code Ann. § 50-6-
239(d)(2) (2014). However, the trial judge also has the “discretion to convene a hearing of a motion for
temporary disability or medical benefits if the judge determines that convening a hearing is necessary to
determine the issues presented.” Tenn. Comp. R. & Regs. 0800-02-21-.02(13) (2014). In this case, the
trial judge chose the latter option and held a hearing.


                                                   2
“Climber Trimmer Qualification Exam” in March and April of 2013, which was also
introduced as an exhibit.

          Employee testified that on the date of injury, he was supervised by a foreman
named “Luis,”2 who Employee testified had worked as a supervisor for about two weeks.
According to Employee, Luis spoke Spanish and could not speak English, and neither
Employee nor anyone else in the crew could speak Spanish. Employee testified, “I know
a little bit of Spanish. I don’t know enough. But I understand a couple of words.”

       Employee explained that on the day of the accident, the tree that the crew was
assigned to trim could have been trimmed using a hydraulic lift bucket, but the hydraulic
was not working, “so they had me go and climb it.” Employee described the events
leading to the accident as follows:

        As I was going up to trim it, I was going to go all the way up and tie-in. He
        [Luis] was rushing me, telling me to, in Spanish, “Ándale, ándale, corte
        rápido,” which means cut really fast. Cut it, like, as I was going up. So I
        just -- I did what he said, and I was trimming the tree as I was going up, and
        that’s when I had the accident. I trimmed the limb and -- and then I fell out
        of the tree.

        And so pretty much I was just doing what I was told, you know. If he
        would not have rushed me, I could have climbed -- I could have tied -- went
        all the way to the top, tied-in and then kind of trimmed coming down, you
        know. But he had me trim as I was just -- I just had my safety hangers on.
        I wasn’t fully tied-in because I was listening to what he said. I was going
        to -- I was spiking it up and I had my lanyard on, and as I was going up, he
        said . . . .

        BY MR. LACKEY:
        Q.      Mr. Gonzales?
                (Technical interruption.)
        ....
        THE WITNESS: Okay. I had my lanyard on, and I was -- I was climbing
        up it and I was climbing -- as I was climbing up to tie-in to go all the way
        up -- first you got to tie-in. That’s what I was going to do. That was my
        first step as I was -- as I was using pole -- pole spikes, the company-issued
        pole spikes. . . . I was climbing up it with my lanyards. And as I was going
        up, the foreman was rushing me to, in Spanish, “Ándale, ándale. Rápido
        corte,” you know, telling me to cut it really fast. And that’s when I had the
2
  Employee testified he believed the supervisor/foreman’s surname is Ramirez. Employer’s Position Statement
identifies him as Luis Miranda. Employer’s witness, Rick Bentley, said he did not know the supervisor/foreman’s
surname, but believed it to be Ramirez.

                                                      3
      accident. I never -- if I’d never been rushed I would never had the accident.
      I always climb a tree safely. You know, I know the rules. And the man
      was rushing me, and I was just doing what he was -- said. You know,
      taking his judgment on seeing the tree as I was going up, something I’ve
      never done. And I always tie-in, because I know -- you know, I’m scared
      of falling. I’m not going to hurt myself. But I was just listening to what
      my foreman said.

       On cross-examination, Employee explained that he knew little Spanish and
asserted that his supervisor never gave him the chance to go up and tie-in:

      Q. You know limited Spanish, or are you fluent in Spanish?
      A. I know -- I know very little Spanish. I know --
      Q. Okay.
      A. -- a few words.
      Q. Okay. And with regard to the few words that you heard your supervisor
      or your foreman say to you, it was to the extent of saying, “Get up,” or “Get
      up the tree” or “Hurry up”; is that accurate?
      A. “Ándale,” which means hurry up.
      Q. Uh-huh.
      A. “Rápido” means faster.
      Q. Uh-huh.
      A. And “corte,” that means cut.
      Q. Okay. So “Hurry up, cut” and “fast”?
      A. Yeah.
      Q. At no point did you ever hear him say: Do not use your -- do not tie-in,
      did you?
      A. No. He --
      Q. Okay. So he never -- he told you to hurry up. He never told you not to
      tie-in; he never told you not to go to the top of the tree, did he?
      A. Well, as I was going up, he was screaming at me, hollering at me to
      hurry up, so that’s what I was listening to, what he was saying. And he was
      telling me to cut. What I -- what -- where I started trimming at, I hadn’t
      been tied-in yet. He was telling me to cut as I was going up, but he never
      gave me the chance to really go up and tie-in before rushing me.
      ....
      Q. Okay. But one thing you do know is that you, in your two years of
      working there, you know that you’re supposed to go to the top and tie-in,
      don’t you?
      A. Yes, I know to go in and tie-in, but I was just listening to what my
      foreman was saying at the time.
      Q. And you know to go and tie-in because you were taught to go and tie-
      in; isn’t that correct?

                                           4
      A. Well, there’s different ways of climbing a tree. You can use a bell ball
      (phonetic), which the company, they never use that. You can -- you can
      spike up it.
      Q. Uh-huh.
      A. But I seen them guys do it plenty of times the way this -- kind of
      spiking up it. But yes, you’re correct.
      Q. Well, is it your testimony or not that you knew that you were supposed
      to tie-in?
      A. Yes, I knew that I was --
      Q. Okay. And you knew that you were supposed to tie-in because you
      were trained to tie-in; isn’t that correct?
      A. Correct.
      ....
      Q. Okay. So you’re testifying today under oath that you were in fact
      properly tied-in and your lanyard was sufficient for tie -- being tied-in per
      company policy, is that your testimony?
      A. Correct.
      Q. Okay
      A. I was tied-in to the tree with my lanyard.
      Q. Okay. So when it comes to being tied-in, you -- you understand that a
      lanyard is not sufficient to be tied-in?
      A. No, a lanyard is sufficient.
      ....
      Q. What were you -- oh. You said you were cutting on your way up. How
      were you cutting?
      A. Well, there’s some limbs in -- you know, in the way as I was going up
      before I can totally tie-in. But the foreman was asking me to trim those
      limbs before I went all the way up.

       Employee was asked whether he was “aware of the zero-tolerance, that in the
event that you’re not properly tied-in, that you would in fact be terminated.” Employee
responded, “I’m saying no, I was not aware of that.” Employee was asked if the foreman
had not rushed him, “is it your testimony that you would still have cut that tree in the
same manner?” Employee responded:

      A. If he wouldn’t have rushed me, I could have did things differently.
      Q. Uh huh. And the things you would have been diff- -- done differently,
      is you would have tied-in with a climbing rope, wouldn’t you have?
      A. Yes.

       On re-direct, Employee was asked about Employer’s Guidelines and how often
after Employee completed his exam that the Guidelines were brought up. Employee
responded, “not often.”

                                           5
Following questioning by counsel, the trial judge questioned Employee:

       THE COURT: All right. And when you say you’re -- you have a
lanyard on, that’s a little mysterious to me. Are you indicating to me that --
that the lanyard is wrapped around the tree, and that as you climb with the
spikes, you move that up, and that’s the way you’re tied-in to the tree; is --
am I understanding that correctly?
       THE WITNESS: Yes, sir.
       THE COURT: Okay. And what is -- what is the -- when you
referred to a climbing rope, what does that mean?
       THE WITNESS: A climbing rope is a -- is a rope that goes on your
harness, and it -- usually you use it when you’re coming down the tree.
When you’re climbing up the tree, you don’t use it, but once you’re -- I
mean, you can use it going up a tree, because you can use a throw ball.
Well I’m not good with a throw ball, so I was trained to use the -- the pole
spikes. I mean, not the pole -- yeah, the pole spikes and the -- the -- and the
lanyard. But you can also -- you can use a throw ball and you can throw it
in the crotch of the tree and the throw ball will come down and you put
your -- the rope in it and you could tie-in with that as if -- well, I was never
trained to use a throw ball.
       THE COURT: Okay. So the normal course of events is to use --
using your lanyard and pole spikes to climb --
       THE WITNES: Yes.
       THE COURT: -- to the top of the tree and then tie off once you get
up there to the climbing rope; is that -- do I understand that correctly?
       THE WITNESS: Yes, sir. You can use your -- you take your
climbing rope with you.
       THE COURT: Okay.
       THE WITNESS: And then once you get up there, you find a crotch
and then you tie-in and then, you know, start doing your trimming.
       THE COURT: All right. Now, it’s still not clear to me how or why
you fell. I -- I -- did you just slip and fall? Did -- I mean, how -- why did
you fall?
       THE WITNESS: I was cutting a limb and I cut -- I guess I cut
through the lanyard, and I fell. That’s all I know. Because I kind of --
       THE COURT: All right. So at --
....
       THE COURT: -- at the time you were cutting the limb -- I’m trying
to understand this. At the time you were cutting the limb, was the lanyard
wrapped around the tree and hooked onto your harness?
       THE WITNESS: Yes, sir.


                                       6
             THE COURT: So if you had not cut that, you would not have fallen;
       am I understanding that correctly?
             THE WITNESS: Correct.

       Employee testified the foreman’s role is to plan and lead how a job will be
completed with safety in mind, and that it is important to listen to the foreman, or “the
company will discipline you.” Employee stated, “I did what he said and I had an
accident.” Employee was terminated three days after the accident for his failure to follow
safety rules.

        Employee’s only other witness was a former co-worker, Anthony Kelly. Kelly is
a certified truck driver and not a tree-trimmer. He testified he was one of three workers
present on the day of the accident. He recalled the foreman, Luis, whom he said cannot
speak English, saying, “ándale, ándale,” to Employee prior to the fall. He testified that he
presumed Employee “had slipped and fell because he was trying to go up the tree as fast
as he could.” When asked whether he recalled the foreman saying anything else to
Employee, he responded, “well, like I said he was speaking in Spanish, you know,
‘ándale, ándale, quatros [sic], quatros [sic].’ I don’t know what ‘quatros [sic]’ means.”
Kelly testified that “the foreman’s role is to give us safety information before we start a
job, which he can’t do because he can’t speak English.” He testified that employees
would be disciplined if they did not listen to the foreman.

        On cross-examination, Kelly admitted that he had been terminated for reasons
unrelated to Employee’s accident. Contrary to his testimony on direct examination, he
testified that he actually saw Employee’s fall: “my testimony is that he was trying to get
up -- get up around the tree and in a fashion where Mr. Luis was telling him to.” When
asked what caused Employee to fall, he responded, “by [Employee] trying to move faster
than he could.”

        Employer’s only witness was Rick Bentley, Employer’s Safety Director. He
testified he is responsible for safety and training for the entire company. He said
employees are trained in stages, and at the end of every stage they are tested and must be
“proficient” to move on to the next stage. He testified training to be a climber lasts
anywhere from sixty (60) days to six (6) months, followed by a written exam. He
testified Employee was a “Climber/Trimmer Trainee.”

       Bentley testified that OSHA regulations require tying-in any time a trimmer is
higher than four feet off the ground. He testified Employer “has a lifesaving rule that we
require our people to be tied-in from the time they leave the ground until the time they
return back to the ground safely.” He explained “tied-in” as follows: “tied-in means that
you are tied-in with a climbing rope or safety straps, and before any work is performed,
you have to be -- it’s mandatory that you’re tied-in with a climbing line or a lifeline.”
When asked what type of safety mechanisms or lines Employee should have used in

                                             7
trimming limbs, Bentley responded: “[w]ell, he should have had a climbing line. And if
he’s cutting in close proximity, as he described, at waist level to that climbing line, he
should have also had a safety strap in addition to the climbing line.”

        Bentley opined that Employee’s use of the safety lanyard without tying-in to a
climbing rope was insufficient “because it is a secondary safety measure.” He explained
that even when the safety lanyard is used properly, the body can go limp and the trimmer
can still fall. He testified that before trimming, it is mandatory to tie-in with a climbing
line or “life line,” and he emphasized that Employee’s safety strap would have been the
secondary tie-in.3

         Bentley’s direct examination included the following:

                 Q. Have you had instances where employees have ascended or cut
         limbs and only used a safety lanyard?
                 A. In any situation we’ve had in the past where anybody violated a
         life-saving rule that employee is terminated.
                 Q. And you have in fact in the past terminated people for violating
         this safety rule?
                 A. Yes, for violating life-saving rules, that’s correct.

        Bentley testified “there is no exception to the tie-in rule and employees will be
terminated if the life-saving rule is violated.” He said “nothing trumps Employer’s safety
rules.” Bentley testified that all employees are trained in the “ABCs of Life,”4 which
explain the discipline policy regarding safety rule violations. He testified that Employees
must be able to recite the “ABCs of Life” before they are allowed to work in the field.

       On cross-examination Bentley testified that he works from the home office in
Texas, but that much of his time is spent inspecting crews all over the country. He was
neither present when Employee’s accident occurred, nor could he recall if he ever met
Employee. He said Employee made a choice not to tie-in first. He said all employees are
given “stop-work” authority whenever they feel someone’s safety is in jeopardy, and that
employees “quite frequently” invoke the “stop-work” authority. When asked how long it
takes to tie-in, Bentley testified that “once you’re in a position in a tree as [Employee]
was, it’s a matter of putting a rope around a tree, snapping it on the -- a snap and tying
one knot, so I would say 30 seconds.”

      Following the hearing, the trial judge filed an interlocutory order on October 16,
2014, finding that Employee clearly had knowledge of the 100% tie-in policy as
evidenced by his training and test scores; that Employee’s own testimony evidenced a
3
  Employer’s Safety Director and its counsel referred to the rule at issue interchangeably as a “tie-in” rule or policy
and as the “100% tie-in” rule or policy.
4
  This document was not introduced into evidence.

                                                           8
clear understanding of the danger involved in violating the rule; and that the
uncontroverted proof of Employer that the rule was strictly enforced on a regular basis
established “bona fide” enforcement. Lastly, the trial judge concluded that Employee
lacked a valid excuse for violating the rule. Finding that the Employer successfully raised
the willful misconduct affirmative defense, the trial judge determined he need not reach
the issues of temporary disability benefits and medical benefits and denied Employee’s
interlocutory request.

       Employee filed a timely request for an appeal on October 22, 2014. A transcript
of the proceedings was prepared from an audio recording by a certified court reporter.
On October 31, 2014, the record was received and docketed by the Clerk of the Appeals
Board. For the reasons explained below, the trial judge’s decision is affirmed.

                                  Standard of Review

       The standard of review to be applied by this Board in reviewing a trial judge’s
decision is statutorily mandated and limited in scope. Specifically, “[t]here shall be a
presumption that the findings and conclusions of the workers’ compensation judge are
correct, unless the preponderance of the evidence is otherwise.” Tenn. Code Ann. § 50-
6-239(c)(7) (2014). The trial judge’s decision must be upheld unless “the rights of the
party seeking review have been prejudiced because findings, inferences, conclusions, or
decisions of a workers' compensation judge:

       (A)  Violate constitutional or statutory provisions;
       (B) Exceed the statutory authority of the workers' compensation judge;
       (C) Do not comply with lawful procedure;
       (D)  Are arbitrary, capricious, characterized by abuse of discretion, or
           clearly unwarranted exercise of discretion; or
       (E) Are not supported by evidence that is both substantial and material in the
           light of the entire record.

Tenn. Code Ann. § 50-6-217(a)(2) (2014).

       In applying the above standards, courts have construed substantial and material
evidence to mean “such relevant evidence as a reasonable mind might accept to support a
rational conclusion and such as to furnish a reasonably sound basis for the action under
consideration.” Clay County Manor, Inc. v. State of Tennessee, 849 S.W.2d 755, 759
(Tenn. 1993)( quoting Southern Railway Co. v. State Bd. of Equalization, 682 S.W.2d
196, 199 (Tenn. 1984)). Like other courts applying the standard embodied in section 50-
6-217(a)(2), the Board will not disturb the decision of the trial judge absent the limited
circumstances identified in the statute.



                                            9
                                                     Analysis

       Although the Workers’ Compensation Act creates a system in which employees
can recover benefits for work-related injuries without regard to fault, see Tennessee Code
Annotated section 50-6-103(a) (2014), there are circumstances in which an employee
cannot recover for injuries that would otherwise be compensable due to the employee’s
conduct. In this instance, Employer contends that Employee cannot recover benefits
because Employee engaged in willful misconduct and willfully failed or refused to use a
safety device.

       Tennessee Code Annotated section 50-6-110(a) (2014) provides in subsections (1)
and (4) that no compensation shall be allowed for an injury or death due to the
employee’s “willful misconduct” or the employee’s “willful failure or refusal to use a
safety device.” These provisions condition the preclusion of compensation in
circumstances where the alleged injury was “due to” the willful misconduct or the willful
failure or refusal to use a safety device. In this context, “due to” means the proximate
cause of the injury or death and not merely a remote or contributing cause. See Mitchell
v. Fayetteville Pub. Utils., 368 S.W.3d 442, 449 (Tenn. 2012)(citing Coleman v. Coker,
204 Tenn. 310, 321 S.W.2d 540, 542 (Tenn. 1952) and Overall v. S. Subaru Star, Inc.,
545 S.W.2d 1, 4 (Tenn. 1976)(when a statute uses the language “due to,” this refers to
proximate cause)).

         If an employer defends on the grounds that the injury arose from willful
misconduct or from the willful failure or refusal to use a safety device, the burden of
proof is on the employer to establish the defense. Tenn. Code Ann. § 50-6-110(b)
(2014).     Thus, the “burden of proof is on the employer to demonstrate that the willful
misconduct or the willful failure to use a safety appliance was the proximate cause of the
injuries.”5 Mitchell, 368 S.W.3d at 448-449. Prior to the Mitchell case, the analyses of
an employer’s willful misconduct defense and an employer’s defense of willful failure or
refusal to use a safety device differed. There was a three-pronged test first announced in
Insurance Co. of America v. Hogsett, 486 S.W.2d 730, 733 (Tenn. 1972), to assess an
employer’s defense of willful misconduct under the statute as it then existed.6 In Nance
v. State Indus., Inc., 33 S.W.3d 222, 226 (Tenn. Workers’ Comp. Panel 2000), the
Special Workers’ Compensation Appeals Panel fashioned a test for the more specific
statutory defense of willful failure or refusal to use a safety appliance, which required the



5
  Tennessee Code Annotated section 50-6-110(a) was amended in 2009 to, among other changes, substitute “safety
device” for “safety appliance.” The provisions of section 110(a) were not altered by the amendments to the
Workers’ Compensation Act that became effective July 1, 2014.
6
  The Court stated as follows: “we are of the opinion the employer has shown the three elements, as deduced from
the opinions of this Court, constituting willful misconduct as contemplated by the statute and they are: (1) an
intention to do the act, (2) purposeful violation of orders, and (3) an element of perverseness.” Hogsett, 486 S.W.2d
at 733.

                                                         10
employer to establish four elements in order to successfully defeat compensability.7 In
Mitchell, the Supreme Court commented that the Nance holding “illustrates a close
relationship between willful misconduct and willful failure or refusal to use a safety
appliance.” Mitchell, 368 S.W.3d at 452. Noting that Larson’s Workers’ Compensation
Law (Matthew Bender, rev. ed.) [hereinafter Larson’s] also recognizes “the blurred line
between the statutory defenses of willful misconduct and the willful failure or refusal to
follow a safety regulation or policy,” the Court quoted Larson’s conclusion that if the
willful misconduct defense amounts to no more than a violation-of-safety-regulation
defense, “it would be much better to say so in plain language and put an end to the
litigation inspired by the vague breadth of the phrase ‘wil[l]ful misconduct.’” Id. (quoting
Larson’s § 34.02).

       In Mitchell, the Supreme Court noted Larson’s suggestion that the elements
required to assert successful defenses for willful misconduct, willful disobedience of
safety rules, and willful failure to use a safety device should be determined by the same
standard, and the Court adopted a single standard “for this and future cases involving
these statutory defenses.” Id. at 452-53. Thus, to meet its statutory burden of proof to
establish the defense of willful misconduct or willful failure or refusal to use a safety
device, an employer must prove the following four elements:

         (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.

Mitchell, 368 S.W.3d at 453.

       In the instant case, Employer asserts that it satisfied its burden in proving each of
the four elements to deny Employee’s claim. The trial judge found that Employer met its
burden to prove each element, and we agree.

          1. Employee’s Actual, as Opposed to Constructive, Notice of the Rule

       Employer asserts there is a “100% tie-in” rule that Employee willfully chose to
ignore. Employee was questioned about an examination he took at the completion of his
training with Employer in 2013 and about one of the true-false questions on the exam.
Employee acknowledged it is “true” that Employer has a 100% tie-in policy, but

7
  The Panel identified these four elements the employer must establish to avoid payment under the statute: (1) at the
time of the injury the employer had in effect a policy requiring the employee’s use of a particular safety appliance;
(2) the employer carried out strict, continuous and bona fide enforcement of the policy; (3) the employee had actual
knowledge of the policy, including a knowledge of the danger involved in its violation, through training provided by
the employer; and (4) the employee willfully and intentionally failed or refused to follow established policy
requiring use of the safety appliance. Nance, 33 S.W.3d at 226.

                                                         11
Employee never was asked what the 100% tie-in policy is or what constituted 100% tie-
in. He testified he was tied-in with his lanyard as he climbed the tree and while he was
cutting the limb, but he admitted that “where I started trimming at, I hadn’t been tied-in
yet.” Employee testified the foreman never gave him “the chance to really go up and tie-
in before rushing me.” Employee admitted he learned from his two years of work with
Employer that “I know to go in and tie-in,” and he said there were some limbs “in the
way as I was going up before I can totally tie-in.” When questioned by the trial judge
about the “normal course of events,” Employee admitted it was normal to climb to the top
using pole spikes and a lanyard and to tie off to the climbing rope once you get there
before you start trimming. However, Employee also testified it is proper to trim as you
are ascending a tree. Employer’s Safety Director, Rick Bentley, did not find fault with
Employee trimming limbs as he ascended; rather, he testified Employee “has to be tied-in
with a primary tie-in once he gets to where he’s at in the tree before he begins any work.”
He explained the primary tie-in “is a climbing rope, not a safety strap.” Bentley
explained that “tied-in means that you are tied-in with a climbing rope or safety straps,
and before any work is performed, you have to be -- it’s mandatory that you’re tied-in
with a climbing line or a lifeline.”

        Bentley did not explain what the “100% tie-in” rule is, but he testified “we require
our people to be tied-in from the time they leave the ground until the time they return
back to the ground safely.” When asked why Employer adopted safety guidelines, his
response was that anytime you’re working aloft there is a possibility that somebody
would cut their safety line, “so we address that properly by making it a mandatory
requirement that people are tied-in 100 percent of the time, where nobody ever falls out
of a tree.” Bentley testified that Employee should have had a climbing line and “a safety
strap in addition to the climbing line.” He agreed that the safety strap is the same thing as
the lanyard.

       While Employee asserted he was tied-in at all times with his lanyard, he admitted
he was not “fully tied-in,” and he asserted his failure to do so was due to the foreman
rushing him. Although the testimony does not clearly define what the “100% tie-in”
policy is, the trial judge found Employer had a 100% tie-in policy and that Employee had
actual knowledge of the policy. Our role is not to ascertain the specifics of the policy or
to determine the extent of Employee’s understanding of the policy; rather, we are to
presume that the trial judge’s finding that Employee had actual, as opposed to
constructive, notice of the rule and the trial judge’s conclusion in this regard are correct,
unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-5-
239(c)(7). We do not find the preponderance of the evidence to be otherwise than found
by the trial judge.

    2. Employee’s Understanding of the Danger Involved in Violating the Rule

       Employee testified that he knows the rules and that “I always tie-in, because I

                                             12
know -- you know, I’m scared of falling. I’m not going to hurt myself.” He testified that
he had never had an accident before and that “I’m not suicidal.” The trial judge found
that Employee’s own testimony evidenced a clear understanding of the danger involved
in violating Employer’s tie-in policy. The preponderance of the evidence supports that
finding.

                 3. Employer’s Bona Fide Enforcement of the Rule

       Employee offered very little testimony addressing whether Employer’s tie-in
policies were enforced. When asked about Employer’s guidelines and how often,
following the completion of his training, the guidelines were brought up by Employer, he
responded, “not often.” When asked whether he was aware that in the event he was not
properly tied-in, he would be terminated, he stated he “was not aware of that.” Employee
was not asked whether Employer’s rules were routinely enforced. There was, however,
testimony from Employer’s Safety Director to the effect that the Employer’s rules were
enforced and that Employer had terminated employees for violating lifesaving rules. The
Safety Director testified why Employer adopted the safety guidelines and the dangers of
trimmers working aloft. He stated, “so we address that properly by making it a
mandatory requirement that people are tied-in 100 percent of the time . . . .” He testified
“in any situations we’ve had in the past where anybody violated a lifesaving rule, that
employee is terminated.” The trial judge found that the uncontroverted proof of
Employer that the rule was strictly enforced on a regular basis established “bona fide”
enforcement. The evidence does not preponderate against this finding.

            4. Employee’s Lack of a Valid Excuse for Violating the Rule

        Employee asserts that the foreman’s actions in rushing him to cut limbs as he
ascended the tree provide a valid excuse for him not being fully tied-in. Employee
testified his foreman was “screaming at me, hollering at me to hurry up, so that’s what I
was listening to . . . .” He testified there were some limbs in his way going up the tree,
“but the foreman was asking me to trim those limbs before I went all the way up.” He
testified “if [the foreman] wouldn’t have rushed me, I could have [done] things
differently.”

       The record does not include any testimony or exhibits that support an assertion
that the foreman specifically insisted that the tie-in rule or any other safety rule be
violated. In fact, as noted by the trial judge, the implication from the proof is that the
foreman could not communicate such a direct instruction due to a language barrier. From
a review of the entire record, the only excuse asserted by Employee for failing to abide
by the known rule and tie-in before he began cutting limbs would have to be based on the
foreman’s communications with Employee as he ascended the tree. Even if viewed in the
light most favorable to Employee, the communications were limited to the foreman
screaming “ándale, ándale, corte rápido.” It is not clear from the record how many times

                                            13
the foreman spoke or screamed these words or the order in which the foreman spoke the
words, but it is uncontroverted that the foreman screamed or hollered these words as
Employee ascended the tree. Employee and his former co-worker testified that if you
don’t listen to the foreman you could be disciplined by the company. Whether Employee
has a valid excuse for violating the known safety rule by not tying-in to his climbing rope
before cutting must be analyzed by determining whether the words spoken by the
foreman and the manner in which they were spoken provides a “plausible excuse” for
Employee’s violation. Mitchell, 368 S.W.3d at 454.

       Employee’s Safety Director testified that “telling the employee to hurry up and get
up there and cut the tree limb had nothing -- absolutely nothing to do with the safety on
that particular job.” He explained that the employee still has to climb up the tree and
follow the rules and tie-in and perform the work the correct way, “and that simply saying,
‘hurry up and get up the tree and start working’ doesn’t constitute a safety issue to me.”
When asked whether the Safety Director thought the foreman screaming at Employee had
any bearing on the issue, the Safety Director testified as follows:

              I think if he was screaming at him, then [Employee] should have
      stopped and asked him why he was screaming at him or -- or questioned the
      situation. Because all employees have the right to stop work. That’s on our
      job briefings. And that’s a stop-work authority, any time you’re
      uncomfortable with doing something somebody has asked you to do, every
      employee has the authority to stop work. And if that was the case, then he
      should have stopped work and asked the foreman specifically what he
      wanted him to do and clarify it. It still doesn’t justify not tying into the tree
      and working from it and putting your -- your life in jeopardy.

Even if the foreman was screaming at Employee, the explanation that the foreman was
rushing Employee simply does not qualify as a “plausible” explanation. As stated by the
trial judge, feeling rushed is simply not a plausible explanation for the noncompliance.
The evidence does not preponderate against the trial judge’s finding that Employee
lacked a valid excuse for not complying with the rule. As in Mitchell, Employee’s lack
of a valid excuse for tying-in before cutting, when the first three elements of Employer’s
defense have been satisfied, amounts to willfulness. See Mitchell, 368 S.W.3d at 455.
The trial judge concluded that Employer successfully raised the willful misconduct
defense and this conclusion is presumed to be correct as the evidence does not
preponderate otherwise. See Tenn. Code Ann. § 50-6-239(c)(7).




                                             14
