                                                                                         FILED
                                                                                       Jun 29, 2020
                                                                                       08:57 AM(CT)
                                                                                     TENNESSEE COURT OF
                                                                                    WORKERS' COMPENSATION
                                                                                           CLAIMS




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

    RONDA A. CAMPBELL,                                ) Docket No. 2019-05-0540
              Employee,                               )
    v.                                                )
    MARTEN TRANSPORT, LLC,                            ) State File No. 32087-2019
              Employer,                               )
    And                                               )
    AGRI GENERAL INS. CO.,                            ) Judge Dale Tipps
              Insurance Carrier.                      )


    COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT



      This case came before the Court on Marten Transport’s Motion for Summary
Judgment. The central issue is whether Marten is entitled to summary judgment on grounds
that Ms. Campbell failed to present sufficient evidence that her injury arose in the course
and scope of her employment. For the reasons below, the Court holds Marten is entitled
to summary judgment.
                                         Procedural History
       Ms. Campbell works as a truck driver for Marten. On April 23, 2019, Ms. Campbell
had completed her deliveries and stopped at a store in Chattanooga to buy her mother a
gift. The store had not opened yet, so Ms. Campbell went into her sleeper compartment to
rest. While Ms. Campbell slept, a tow-truck operator hooked onto the cab of her truck and
raised the front of it off the ground.1 He then pounded on the door to wake her up. Ms.
Campbell was still groggy and did not realize the cab had been elevated. As a result, she
fell when opening the door and injured her head, shoulder, and left wrist.

       Marten denied Ms. Campbell’s claim on the grounds she deviated from her job
duties to perform a personal errand, and she filed a Petition for Benefit Determination.




1
    The parking lot was posted, “No Truck Parking.”

                                                      1
       After an Expedited Hearing, the Court denied benefits because Ms. Campbell was
not likely to prevail on proving that her injury arose out of the course and scope of her
employment. Marten filed this Motion for Summary Judgment and a statement of
undisputed facts. Ms. Campbell did not file a response, and the Court heard the Motion on
June 18, 2020.
                                     Marten’s Motion
        Marten filed a statement of undisputed material facts with citations to the record in
compliance with Tennessee Rules of Civil Procedure 56.03. Most of the “facts” were a
recitation of the procedural history of the claim, along with some of the Court’s findings
in the Expedited Hearing Order. The Court notes that procedural history and Expedited
Hearing Order conclusions do not constitute facts upon which summary judgment may be
granted. However, these material facts may be gleaned from the statement:
   1. The sole reason for Ms. Campbell’s stop at the store was to purchase a gift for her
      mother.
   2. Ms. Campbell contends she had permission to make the additional stop.
       Marten contended these facts support summary judgment because they constitute
affirmative evidence that Ms. Campbell cannot establish essential elements of her claim.
Specifically, it argued she cannot prove that her alleged injury arose in the course and scope
of her employment.
       As stated, Ms. Campbell did not file a response, but she appeared for the hearing on
this motion. She contended that she had returned to the course and scope of her
employment at the time of her injury because she was trying to protect Marten’s truck from
being towed.
                                     Law and Analysis
        Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Tenn. R. Civ. P. 56.04 (2019).

       As the moving party, Marten must do one of two things to prevail on its motion: (1)
submit affirmative evidence that negates an essential element of the nonmoving party’s
claim, or (2) demonstrate that the nonmoving party’s evidence is insufficient to establish
an essential element of the nonmoving party’s claim. Tenn. Code Ann. § 20-16-101; see
also Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015).
If Marten is successful in meeting this burden, the nonmoving party – Ms. Campbell – must
then establish that the record contains specific facts upon which the Court could base a
decision in her favor. Rye, at 265.


                                              2
        Ms. Campbell filed no response opposing the motion for summary judgment and
failed respond to Marten’s statement of undisputed material facts. Therefore, under Rule
56.04 and Tennessee Compilation Rules and Regulations 0800-02-21-.18(1)(c) (August
2019), the Court finds the motion unopposed and the facts admitted. The issue then is
whether under Rule 56.06 summary judgment is “appropriate.”

       Considering the merits of Marten’s motion, the Court finds it successfully
demonstrated that Ms. Campbell’s evidence is insufficient to establish a causal connection
between her injury and her employment, an essential element of her claim. Under
Tennessee Code Annotated section 50-6-102, Ms. Campbell must show that her injury
arose in the course and scope of her employment.

       Application of this course and scope requirement depends in part on the nature of
an injured employee’s work. A traveling employee is generally considered to be in the
course of employment continuously during the duration of the entire trip, except when there
is a distinct departure on a personal errand. McCann v. Hatchett, 19 S.W.3d 218, 221
(Tenn. 2000). As a truck driver, Ms. Campbell was a traveling employee. The question,
therefore, is whether her trip to the store constituted a distinct departure on a personal
errand.

        Tennessee Courts have found that some personal acts of comfort and convenience,
such as bathroom breaks or meal stops, are incidental to the employment. These contribute
to the furtherance of an employer’s interest, and injuries that occur during these stops are
deemed to have arisen out of the employment. See McCormick v. Aabakus, Inc., No.
M1999-01234-WC-R3-CV, 101 S.W.3d 60, 63 (Tenn. Workers’ Comp. Panel Oct. 5,
2000). However, Ms. Campbell’s sole reason for this stop was to purchase a gift, not for
food, fuel, or a bathroom break. Her decision to leave her route and park her truck was
based on purely personal considerations. This differs fundamentally from a comfort stop;
in that it provided no benefit to Marten. Therefore, it represents a distinct departure on a
personal errand.2

        Ms. Campbell contended that she had Marten’s permission to make the stop. Even
if true, the Court is unaware of any authority that granting permission for a departure
changes the McCann analysis. Instead, the focus remains on the question of whether Ms.
Campbell’s deviation from her route provided any benefit to Marten. Ms. Campbell
offered no evidence of any benefit. Similarly, Ms. Campbell provided no evidence to
support her argument that her injury occurred in the course and scope of her employment
because it arose out of her attempts to prevent towing of Marten’s truck.3

2
 The statement of undisputed facts does not establish whether the physical deviation from Ms. Campbell’s
route was geographically significant, but the Court is unaware of any legal authority establishing a
minimum required distance to constitute a distinct departure.
3
    Even if proof of this contention had been admitted, the Court questions whether an employee’s actions to

                                                      3
       In response to Marten’s motion, Ms. Campbell must “demonstrate the existence of
specific facts in the record which could lead a rational trier of fact to find in [her] favor[.]”
Rye, at 265. Further, she must do more than simply offer hypothetical evidence; she must
produce evidence at this summary judgment stage of the case that is sufficient to establish
the essential elements of her workers’ compensation claim. Id. Ms. Campbell failed to
meet this burden, as she offered no countervailing evidence and produced no material facts
to lead the Court to find in her favor.
        Thus, there is no genuine issue of material fact, and the Court holds Marten is
entitled to summary judgment as a matter of law.
IT IS, THEREFORE, ORDERED as follows:

    1. Marten’s Motion for Summary Judgment is granted, and Ms. Campbell’s claim is
       dismissed with prejudice to its refiling.

    2. Unless appealed, this order shall become final thirty days after entry.

    3. The Court taxes the $150.00 filing fee to Marten Transport under Tennessee
       Compilation Rules and Regulations 0800-02-21-.06, payable to the Clerk within
       five days of this order becoming final.

    4. Marten Transport shall file the SD-2 with the Clerk within ten days of the date of
       judgment.

        ENTERED June 29, 2020.



                                                 ______________________________________
                                                 Judge Dale A. Tipps
                                                 Court of Workers’ Compensation Claims




mitigate the consequences of a distinct departure, taken before the departure is concluded, would constitute
a return to the course and scope of employment.

                                                     4
                          CERTIFICATE OF SERVICE

    I certify that a copy of this Order was sent as indicated on June 29, 2020.

Name                          Certified     Email   Service sent to:
                               Mail
Ronda Campbell,                                 X   Fields1961@yahoo.com
Self-represented Employee
Allen Grant,                                    X   agrant@eraclides.com
Employer Attorney



                                          ______________________________________
                                          Penny Shrum, Court Clerk
                                          Wc.courtclerk@tn.gov




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