                  TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                     WORKERS’ COMPENSATION APPEALS BOARD


Employee: Eden Johnson                             )       Docket No. 2014-06-0069
                                                   )
Employer: Wal-Mart Associates, Inc.                )       State File No. 85475-2014



                                   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 2nd day of July, 2015.
 Name                  Certified   First Class   Via   Fax      Via     Email Address
                       Mail        Mail          Fax   Number   Email

 Tim Bowden                                                       X     Bowden1lydia@gmail.com;
                                                                        Bowden_law@bellsouth.net
 Jay Johnson                                                      X     jay@cmwatsonlaw.com
 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
                                                                               FILED
                                                                              July 2, 2015
                                                                              TENI\"ESSEE
                                                                         WORKERS' COi\IPENSATION
                                                                            APPEALS BOARD

                                                                              Time: 9:40AM


            TENNESSEE BUREAU OF WORKERS' COMPENSATION
               WORKERS' COMPENSATION APPEALS BOARD


Employee: Eden Johnson                    )       Docket No. 2014-06-0069
                                          )
Employer: Wal-Mart Associates, Inc.       )       State File No. 85475-2014
                                          )
                                          )
Appeal from the Court of Workers'         )
Compensation Claims                       )
Kenneth M. Switzer, Chief Judge           )




                    Affirmed and Remanded- Filed July 2, 2015


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

This interlocutory appeal involves an employee, a door greeter, who suffered multiple
injuries from being struck in the face by a customer when she attempted to prevent the
customer from using a motorized shopping cart. The employer denied the claim based
upon its belief the employee had violated its violence-free workplace policy and
terminated her employment. Following an expedited hearing, the trial court granted, in
part, the employee's request for medical and temporary disability benefits and rejected
the employer's willful misconduct defense. The trial court also denied a motion filed by
the employer to dismiss the case based upon the employee's failure to timely request an
expedited hearing and her failure to file a supporting affidavit. The employer has
appealed. Having carefully reviewed the record, we affinn the trial court's decision and
remand the case for further proceedings as may be necessary.

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

                                              1
    dissented in part.

Jay Johnson, Henderson, Tennessee, for the employer-appellant, Wal-Mart Associates,
Inc.

Tim Bowden, Goodlettsville, Tennessee, for the employee-appellee, Eden Johnson

                             Factual and Procedural Background

       Eden Johnson ("Employee"), a seventy-six-year-old resident of Davidson County,
Tennessee, was employed by Wal-Mart Associates, Inc. ("Employer") as a door greeter
when she was struck in the face by a customer and knocked unconscious on October 28,
2014. On that date, Employee was performing her duties near the front of the store when
a customer ran into the store and sat on a motorized shopping cart. Employee informed
the customer that she could not use the cart because the carts were for physically
challenged customers only, at which point the customer asked Employee to get a
manager. As Employee was walking away to find a manager, the customer began to
drive the cart further into the store. In an attempt to stop the moving cart, Employee
grabbed the back of the cart, and a surveillance video of the incident shows the
customer's head tilting backward. According to Employee, the customer moved her head
on her own because Employee did not touch her. 1 The customer suddenly turned from
her seated position on the cart and punched Employee in the face, knocking her out.
Other surveillance video, shot from different angles, shows Employee conversing with
the customer, but does not show the assault itself.

       Employee was transported by ambulance to a hospital where she was treated for
her injuries. The next day, she was treated by her primary care physician, Dr. Marcus
Min. Dr. Min wrote as the "reason for appointment" that Employee "[w]as assaulted last
night at walmart, patient does not remember being hit, only knows patient was hit threw
[sic] watching video tape." Dr. Min excused Employee from work for two weeks.

       Employee testified that she did not know the customer who hit her, meant her no
harm, and had not previously been in a fight. Employee also testified that, as a door
greeter, her duties included monitoring the motorized carts. She stated, without
contradiction, that multiple managers, including the "top manager," instructed her that the
carts were for physically challenged customers only. She testified further that a
supervisor instructed her to inform customers the carts were solely for those who needed
them and "to make sure that the only people that use the carts are the disabled ones."

1
 Although the customer who assaulted Employee did not testify at the expedited hearing, her statement
was introduced into evidence. According to the customer's statement, Employee grabbed her hair and
clothing. Employee denied doing so, and surveillance video contained in the record appears inconclusive
on this point. The trial court resolved this factual dispute in Employee's favor.

                                                  2
        When Employee was hired in January 2014, her training included exposure to
Employer's "Violence-Free Workplace Policy," a document that prohibits two categories
of conduct, "violence" and "possession of weapons." Regarding "violence," the policy
states the following:

       We prohibit any form of violence or threat of violence in or affecting the
       workplace, other associates or our customers/members. This includes, but
       is not limited to, any conduct or communication (whether direct or indirect)
       which: 1) harms, damages, injures, harasses, intimidates, bullies, threatens,
       stalks, taunts, forces, coerces, restrains or confines another person; 2)
       reasonably causes another person to fear for his/her health or safety; or 3)
       intentionally harms or damages property.

Although Employee believed that her actions did not amount to a violation of the policy,
she readily acknowledged grabbing the back of the cart in an attempt to stop its
unauthorized use.

        Jay Sizemore, Asset Protection Manager for Employer, testified that any customer
can use a motorized cart and that the job description for greeters does not "technically"
entail overseeing the use of the carts. However, he stated that it may have been "deemed
appropriate" at the store where Employee worked. Mr. Sizemore did not know whether
Employee had been instructed by management that the carts were for customers with
disabilities only. Mr. Sizemore indicated that, in his view, putting one's hand on the back
of a cart is not an assault, but rather "infringing upon somebody' s personal space" such
that they might feel threatened. He also testified that employees are prohibited from
touching customers, but he acknowledged Employee did not strike the customer and was
defending against the customer's blow rather than throwing one. He further stated, "I
can't say [Employee] intentionally did anything to the customer, but I can say she
intentionally tried to get the customer off the mart cart."

       Diana Henry, the Personnel Coordinator for the store where Employee worked,
oversaw Employee's training. Ms. Henry, who neither witnessed nor investigated the
incident at issue, confirmed that Employee received training on the Violence-Free
Workplace Policy. She also testified that employees are prohibited from touching
customers and that Employer enforces its Violence-Free Workplace Policy. Further, she
indicated that, in her opinion, Employee's holding on to the cart violated the policy, but
she did not believe Employee violated any policy in overseeing the carts as a part of her
job as a greeter. In response to questioning about what she saw on the video, Ms. Henry
agreed that Employee did not commit an act of violence against the customer who
assaulted her. Like Mr. Sizemore, Ms. Henry did not know whether Employee's
supervisors told her to allow only physically challenged customers to use the carts.



                                            3
       Employer provided neither medical nor temporary disability benefits, prompting
Employee to file the instant action. Following unsuccessful mediation efforts, a Dispute
Certification Notice was filed on December 23, 2014. Employee filed a Request for
Expedited Hearing on April 8, 2015. Following the expedited hearing, the trial court
denied Employer's motion to dismiss the case based upon Employee's failure to timely
request an expedited hearing and her failure to file a supporting affidavit. As to the
merits of the claim, the trial court ruled that Employee did not violate Employer's
Violence-Free Workplace Policy, rejected Employer's willful misconduct defense, and
determined that Employee's injuries arose primarily out of and in the course and scope of
her employment. Accordingly, the trial court directed Employer to provide medical
benefits, specifically a panel of physicians, but declined to order the payment of past
medical expenses based on a finding that Employee failed to prove the necessity and
reasonableness of the charges incurred. In addition, the trial court found that Employee
was entitled to temporary total disability benefits for the two weeks she was taken off
work. Employer timely appealed, and the record was submitted to the Appeals Board on
June 23, 2015.

                                  Standard of Review

       The standard of review to be applied by this Board in reviewing a trial court'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 court's decision must be upheld unless the rights of a party
"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 an 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)(3) (2015). Like other courts applying the standards
embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court
absent the limited circumstances identified in the statute.




                                            4
                                                 Analysis

                                          A. Motion to dismiss

           Employer moved to dismiss the case on the basis that Employee failed to timely
    request an expedited hearing. The pertinent regulation, Tenn. Comp. R. & Regs. 0800-
    02-21-.12(1) (2014), provides as follows:

            Immediately after a dispute certification notice has been filed with the
            clerk, either party seeking further resolution of any disputed issues shall
            file a request for hearing with the clerk. . . . If no request for hearing is
            filed within sixty (60) calendar days after the date of issuance of the
            dispute certification notice, the clerk shall docket the case and place the
            case on a separate dismissal calendar for a show cause hearing. The
            clerk shall send notice of the hearing to the parties, via regular or
            electronic mail, indicating the claim number, the time of the hearing and
            the judge assigned to the case. Either party may appear to show cause as
            to why the case should not be dismissed.

Here, the Dispute Certification Notice was filed on December 23, 2014, and the Request
for Expedited Hearing was filed more than sixty days later on April 8, 2015, prompting
Employer's motion to dismiss. The trial court properly denied the motion.

        On appeal, Employer makes no argument addressing this issue other than the trial
court "improperly denied pre-hearing motions to dismiss." Employer did argue in the
trial court that inclusion of the word "shall" in the first sentence of the regulation requires
dismissal of the case. In our view, however, Employer's argument ignores the rest of the
regulation, which sets out a procedure to follow when an expedited hearing is not
requested within the specified timeframe, i.e., a show cause hearing is held so that the
trial court can determine if the parties intend to take further action in the case. Accepting
Employer's argument that a case must be dismissed if an expedited hearing request is not
filed within sixty days of the filing of the Dispute Certification Notice would render most
of the regulation, which has the force and effect of law, superfluous. See Kogan v. Tenn.
Bd. of Dentistry, No. M2003-00291-COA-R3-CV, 2003 Tenn. App. LEXIS 933, at *17
(Tenn. Ct. App. Dec. 30, 2003).

       We also note that the trial court did precisely what the regulation requires when an
expedited hearing request is not filed within sixty days of the filing of the Dispute
Certification Notice. The trial court set and conducted a show cause hearing and then
directed Employee to file a Request for Expedited Hearing, which she did. This issue has
       . 2
no ment.

2
    Employer's motion also sought dismissal of the case based upon Employee's failure to file an affidavit

                                                     5
           B. Arising primarily out of and in the course and scope of employment

       To be compensable under the workers' compensation statutes, an injury must arise
primarily out of and occur in the course and scope of the employment. Tenn. Code Ann.
§ 50-6-102(13) (20 14 ). Injury" is defined as "an injury by accident ... arising primarily
out of and in the course and scope of employment, that causes death, disablement or the
need for medical treatment of the employee." Id. For an injury to be accidental, it must
be "caused by a specific incident, or set of incidents, arising primarily out of and in the
course and scope of employment, and is identifiable by time and place of occurrence."
Tenn. Code Ann.§ 50-6-102(13)(A) (2014).

       The statutory requirements that an injury arise out of and in the course of the
employment are not synonymous "although both elements exist to ensure a work
connection to the injury for which the employee seeks benefits." Blankenship v. Am.
Ordnance Sys., 164 S.W.3d 350, 354 (Tenn. 2005). An injury occurs in the course of
employment if it takes place while the employee was performing a duty he or she was
employed to perform. Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn. Workers' Comp.
Panel 1993 ). Thus, the course of employment requirement focuses on the time, place,
and circumstances of the injury. Saylor v. Lakeway Trucking, Inc., 181 S. W .3d 314, 318
(Tenn. 2005). By contrast, arising out of employment refers to causation. Reeser v.
Yellow Freight Sys., Inc., 938 S.W.2d 690, 692 (Tenn. 1997). 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. Fritts v. Safety Nat'! Cas.
Corp., 163 S.W.3d 673, 678 (Tenn. 2005). Put another way, an injury arises out of
employment when it "has a rational, causal connection to the work." Braden v. Sears,
Roebuck & Co., 833 S.W.2d 496, 498 (Tenn. 1992).

        Applying the foregoing principles to the record before us, it is clear the customer's
assault upon Employee originated from Employee's attempt to monitor the use of the
motorized carts. Indeed, the entire focus of the dispute was related to the employment
setting, as opposed to being an entirely private dispute imported into the workplace or a
random assault by a third person unconnected to Employer's business. Further, at the
time of the incident, Employee was acting within her role as a door greeter which, by all
accounts, included overseeing the carts. Thus, we conclude, as the trial court did, that
Employee's injury "has a rational, causal connection to the work." Braden, 833 S.W.2d
at 498; see also WS. Dickey Mfg. Co. v. Moore, 347 S.W.2d 493, 496 (Tenn. 1961)
(when an assault upon an employee is "incidental to some duty of his employment ... the
assault is ordinarily held to [a]rise out of the employment").



in support of her request for an expedited hearing as required by Tenn. Comp. R. & Regs. 0800-02-21-
.14(l)(a) (2014). Employer, however, elected not to press the issue in the trial court. Thus, we need not
address it on appeal.

                                                   6
        Further, as noted above, the course of employment requirement is satisfied when
 the injury occurs within the time and place limitations of the employment relationship
 and during an activity connected to the employee's duties. Saylor, 181 S.W.3d at 318.
Here, there is no dispute that the assault upon Employee occurred on Employer's
premises during working hours. Similarly, there is no dispute that Employee was
attempting to address an issue pertaining to her job responsibilities when she was struck.
Although Employer argued in the trial court that Employee was not performing a duty
contained in the written job description for greeters, Employee testified that her
responsibilities included monitoring the carts. She stated that multiple managers,
including the "top manager," instructed her that the carts were for physically challenged
customers only and that she was "to make sure that the only people that use the carts are
the disabled ones." This evidence was uncontradicted. Mr. Sizemore himself testified
that such a task "may have been deemed appropriate" at Employee's store location.

        Accordingly, we conclude that, based upon the record as it currently exists, there
is sufficient evidence from which the trial court could determine that Employee is likely
to prevail at a hearing on the merits concerning whether she suffered an injury that arose
primarily out of and in the course and scope of her employment. In reaching this
conclusion, we are mindful that an employee need not prove every element of his or her
claim by a preponderance of the evidence in order to obtain relief at an expedited hearing.
McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). Instead,
at an expedited hearing, an employee has the burden to come forward with sufficient
evidence from which the trial court can determine that the employee is likely to prevail at
a hearing on the merits. !d. Such is the case here.

                                  C. Willful misconduct

        Tennessee law recognizes that, in some instances, a worker's willful misconduct
can preclude a recovery. See Tenn. Code Ann. § 50-6-110(a)(1) (2014) ("No
compensation shall be allowed for an injury or death" stemming from an "employee's
willful misconduct."). The willful misconduct defense consists of four elements: (1) the
employee's actual, as opposed to constructive, notice of the rule, (2) the employee's
understanding of the dangers 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 v. Fayetteville Public Utilities, 368 S.W.3d 442, 453 (Tenn. 2012). The
burden of establishing the defense rests upon the employer. Tenn. Code Ann. § 50-6-
110(b) (2014).

      In this case, the trial court found that Employee did not violate Employer's
Violence-Free Workplace Policy. The trial court observed that it was "particularly
compelling" that Ms. Henry, the training coordinator, did not believe Employee had


                                            7
    committed an act of violence. The record does not preponderate against the trial court's
    finding.

       While it is true that Employee received the policy before she was assaulted and
understood the policy was meant to protect employees, the trial court had before it
Employee's plausible explanation for why her conduct did not violate its terms.
Employee testified that she did not touch the customer, pull her hair, or otherwise
"harass, intimidate, bully, threaten, [or] stalk" her. Employee further testified that she did
"not cause another person to fear for his/her health or safety [and] did not intentionally
harm or damage property." Employee did acknowledge grabbing the back of the cart to
stop its unauthorized use but, according to Employee, "that was within the policy"
because she had "to take care that the carts be used only by disabled people." Indeed, her
testimony that a supervisor instructed her "to make sure that the only people that use the
carts are the disabled ones" was uncontradicted. The trial court found Employee's
testimony credible, and we are in no position to second-guess that finding. See Tryon v.
Saturn Corp., 254 S.W.3d 321 , 327 (Tenn. 2008). We note too, as the trial judge did, that
Ms. Henry, the training coordinator, did not believe that Employee committed an act of
violence, one of the two categories of conduct prohibited by Employer's policy. 3

       In arguing that the trial court's decision should be reversed, the dissent focuses on
the restraint aspect of Employer's policy. As far as this record shows, however, the
customer could have simply gotten off the cart and walked away. Instead, she suddenly
turned and punched Employee in the face, knocking her out. This is not to suggest the
dissent's interpretation of the record or application of the facts to the law is unreasonable.
But neither is the trial court's. "While we will set aside a discretionary decision if it rests
on an inadequate evidentiary foundation or if it is contrary to the governing law, we will
not substitute our judgment for that of the trial court merely because we might have
chosen another alternative." State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248
(Tenn. Ct. App. 2000). Consistent with this established principle, we decline to substitute
our judgment for that of the trial judge based on this record.

       In short, absent an abuse of discretion 4 or a violation of the other criteria found in
section 50-6-217(a)(3), the trial court' s decision will not be disturbed on appeal. And, as
noted above, there is a statutory presumption that "the findings and conclusions of the
workers' compensation judge are correct, unless the preponderance of the evidence is

3
    The other category of prohibited conduct, possession of a weapon, is not at issue.
4
 "The abuse of discretion standard does not allow the appellate court to substitute its judgment for that of
the trial court, and we will find an abuse of discretion only if the court 'applied incorrect legal standards,
reached an illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or
employ[ed] reasoning that causes an injustice to the complaining pm1y.'" Wright ex rei. Wright v. Wright,
337 S.W.3d 166, 176 (Tenn. 2011) (citations omitted).


                                                       8
    otherwise." Tenn. Code Ann. § 50-6-239(c)(7). Having carefully considered the record,
    we cannot say that the evidence preponderates against the trial court's finding that
    Employee did not violate Employer's Violence-Free Workplace Policy, making it
    unnecessary for us to address the trial court's additional finding that Employer failed to
    carry its burden of proof regarding the elements of willful misconduct as mandated by
    Tennessee Code Annotated section 50-6-11 O(b ).

                                        D. Other issues

           Finally, Employer contends that the trial court "improperly considered hearsay
    evidence and did not consider contrary sworn testimony properly." Employer does not
    identify the hearsay evidence that the trial court purportedly erred in considering or
    otherwise elaborate on its assertion. 5 Nor does Employer identify the "contrary sworn
    testimony" the trial court purportedly failed to properly consider.

        As stated by the Tennessee Supreme Court, ''[i]t is not the role of the courts, trial
or appellate, to research or construct a litigant's case or arguments for him or her, and
where a party fails to develop an argument in support of his or her contention or merely
constructs a skeletal argument, the issue is waived." Sneed v. Bd. of Prof/ Responsibility
of the Supreme Court of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010). Consistent with this
settled principle, we decline to speculate on what evidence Employer might be referring
to or to otherwise sift through the lengthy record in search of evidence that might support
Employer's conclusory claims of error. See Adams v. Gardino, No. W2011-00773-COA-
R3-CV, 2012 Tenn. App. LEXIS 644, at *4 (Tenn. Ct. App. Sept. 17, 2012) ("This Court
will not blindly search the record to determine if any errors were committed.").

                                            Conclusion

        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 set forth in Tennessee Code Annotated section 50-6-
217(a)(3). Accordingly, the trial court's decision is affirmed. The case is remanded for
any further proceedings that may be necessary.



                                                       Marshall L. Davidson, III
                                                       Presiding Judge
                                                       Workers' Compensation Appeals Board


5
 Neither party has filed a brief or other document explaining their positions on appeal as permitted by
Section 5.3 ofthe Board's Practice and Procedure Guidelines.

                                                  9
            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD


Employee: Eden Johnson                    )       Docket No. 2014-06-0069
                                          )
Employer: Wal-Mart Associates, Inc.       )       State File No. 85475-2014
                                          )
                                          )
Appeal from the Court of Workers’         )
Compensation Claims                       )
Kenneth M. Switzer, Chief Judge           )


                 Opinion Concurring in Part and Dissenting in Part


Timothy W. Conner, J., concurring in part and dissenting in part.

       While I agree with the majority opinion on all other issues, I respectfully dissent
with respect to whether Employee’s conduct constituted a violation of Employer’s
violence-free workplace policy and whether Employer successfully established the
elements of its willful misconduct defense.

               A. Violation of Employer’s Violence-Free Workplace Rule

        It is undisputed that Employer had a written rule called the “violence-free
workplace policy.” That policy expressly prohibited “all associates who work for
Walmart Stores, Inc.” from engaging in “any conduct or communication (whether direct
or indirect) which: . . . restrains or confines another person.” In concluding that
Employee “did not violate the Violence-Free Workplace Policy,” the trial court reasoned
that “[t]he video does not clearly show her touching [the customer].” The court found it
“particularly compelling” that one of Employer’s witnesses “testified that, from what she
could see in the videos, she did not think that [Employee] committed an act of violence.”
However, the written policy is clear and unambiguous. It prohibits “any conduct or
communication (whether direct or indirect) which: . . . restrains . . . another person”
(emphasis added). It does not require any physical contact to constitute a violation.

                                              1
Moreover, with respect to the testimony of Employer’s representative, the pertinent
question is not whether Employer considered Employee’s actions to be “an act of
violence.” Instead, the question is whether Employee’s actions constituted a violation of
Employer’s violence-free workplace rule. As will be discussed in more detail below,
Employee’s own admissions during the expedited hearing established her violation of the
rule.

                           B. Employer’s Willful Misconduct Defense

       In Mitchell v. Fayetteville Public Utilities, 368 S.W.3d 442 (Tenn. 2012), the
Tennessee Supreme Court adopted the elements of the willful misconduct defense as
recommended by Professor Larson. “Because Larson’s four-step test establishes
straightforward guidelines for evaluating claims of willful misconduct . . . , we choose to
adopt the standard for this and future cases involving these statutory defenses.” Id. at 453.

       Thus, to prevail on a willful misconduct defense, an employer has the burden to
establish the following:

            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.

Id. As noted by the Court in Mitchell, it is not necessary for an employer to prove any
element of “perverseness” on the part of the Employee with respect to the alleged willful
violation of Employer’s rule. Id.

       In evaluating Employer’s willful misconduct defense in the present case, it is
necessary to address each of the four elements as set forth in Mitchell. First, Employee
admitted that she received training regarding Employer’s policies during orientation. She
admitted that she received instruction concerning Employer’s violence-free workplace
policy. She admitted that she signed a document acknowledging her receipt of the policy.
In fact, she initialed the line on the document specifically identifying the violence-free
workplace policy. Employee testified as follows:

       Q.        So you were aware of the company’s violence-free workplace policy --

       A.        Right.

       Q.        -- at that time. Correct?

       A.        Right.


                                               2
Although Employee attempted to excuse her conduct by stating that she had not “studied”
the policy, it cannot reasonably be argued that she was unaware of it. Therefore,
Employer established Employee’s actual knowledge of its violence-free workplace
policy.

       Next, Employer must establish that Employee understood the danger involved in
violating the rule. In the first paragraph of the written policy, employees are informed
that “Walmart is committed to providing a safe and violence-free workplace and
shopping location for our associates, suppliers and customers/members. You should help
maintain an environment that is free of harassment, violence and threats of violence.”
Employee testified as follows:

      Q.     So you understood that this was the policy of Walmart with regard to
      violence related to the workplace. Correct?

      A.      Yes.

      Q.     Okay. You recognized and understood that prior to the October 28, 2014,
      incident that we’re here about today. Correct?

      A.      You – you what?

      Q.      You understood that that policy applied to Walmart associates –

      A.      Yes.

      Q.      -- prior to the time of the October –

      A.      Yes.

      . . .

      Q.    Ms. Johnson, isn’t it true that that policy very clearly states that any
      conduct or communication, whether direct or indirect, which either, one, harms,
      damages, injures, harasses, intimidates, bullies, threatens, stalks, taunts, forces,
      coerces, restrains, or confines another person, or, two, reasonably causes another
      person to fear for his or her health or safety, or, three, intentionally harms or
      damages property is prohibited by that violence-free workplace policy? Is that –

      A.      Right.

      . . .


                                             3
      Q.     And, Ms. Johnson, you understood that policy was in place and intended to
      protect employees from dangerous contact with other employees and dangerous
      contact with the public. Is that correct?

      A.      Right.

Such testimony establishes Employee’s understanding of the danger involved in violating
the rule.

      Third, Employer’s representatives testified without contradiction that Employer
engaged in bona fide enforcement of its violence-free workplace policy:

      Q.     With regard to the violence-free workplace policy, does Walmart have a
      history of enforcing that workplace rule?

      A.      Absolutely.

      . . .

      Q.    Have there been other incidents where Walmart associates at your store on
      Dickerson Pike have been subject to that discipline for violations of the violence-
      free workplace policy?

      A.      Yes. We’ve had people to be terminated because they were fighting on the
      parking lot. We’ve had people to be terminated because they slashed people’s
      tires. We’ve had people terminated because they were arrested outside of work
      and didn’t report it. We still have people on suspension awaiting the outcome of
      this violence-free workplace [policy].

Employee offered nothing to rebut the testimony of Employer’s representative regarding
bona fide enforcement of the policy. Thus, Employer satisfied the third element of the
defense.

        Finally, Employer must establish that Employee lacked a valid excuse for the
violation of the rule. Employee testified that she believed it was within her job duties as
a greeter to “oversee” the use of the motorized carts. Employee further testified that she
believed she was supposed to restrict the use of the carts to customers with disabilities.
Employer’s representatives testified that it was not within Employee’s job description to
restrict the use of the motorized carts to disabled customers, but, for purposes of this
analysis, it is assumed that Employee had a reasonable basis for her understanding of her
responsibilities concerning the motorized carts.

      When the customer in question made it clear that she intended to use the

                                            4
motorized cart despite Employee’s objection, Employee asked the customer to wait while
she sought the assistance of the manager. Employee then testified as follows:

      Q.      Did you restrain or attempt to restrain [the customer]?

      A.     I followed her bec – she told me – she promised to stay, not to drive the –
      the cart and she did. And she was sup – and she lied and said that –

      . . .

      Q.      You did state that you held onto the back of the motorized cart, the mart
      cart I believe they’re called, and tried to stop her from continuing on in the –

      A.      Yes.

      Q.      -- cart.

      A.      -- I did.

      . . .

      Q.     Okay. Would you not describe that as restraining or attempting to restrain
      [the customer] from continuing on into the store?

      A.      Yes.

Thereafter, Employee’s testimony on this issue continued as follows:

      Q.     But you had already walked away in the other direction from the direction
      that she was going on the –

      A.      Right.

      Q.      -- motorized –

      A.      Right.

      Q.      -- cart. Correct?

      A.      Right.

      Q.    So you then had to stop where you were going to see a manager and walk
      and chase her down to try to stop her from getting on –

                                             5
         A.       Yes.

         Q.       -- that cart.

         A.       Uh-huh.

         Q.    Okay. So you walked with the intention of going to stop [the customer]
         from continuing on the motorized cart into the store?

         A.       Yes.

         Q.    You, by your statement, at least grabbed the handlebar and/or the back of
         the mart cart in an –

         A.       Right.

         Q.       -- attempt to stop her from –

         A.       Yes.

         Q.       -- continuing on –

         A.       Yes.

       Thus, Employee’s own testimony establishes her violation of Employer’s
violence-free workplace rule. While it was reasonable for Employee to seek the
assistance of a manager when the customer indicated her intent to use the motorized cart
over Employee’s objection, it was not reasonable for Employee to decide to chase after
the cart and grab onto it in order to restrain the customer. Employee has offered no valid
excuse for this action. Her claim that her action was “within the policy,” since she was
responsible for the motorized carts, does not hold up under scrutiny. There is no
evidence that the customer was damaging Employer’s property or causing danger or a
threat of danger to Employee, the customer, or others in the vicinity.

        Tennessee law no longer allows a liberal or remedial interpretation of the statute in
favor of an injured worker.1 Section 50-6-110(a) provides that “[n]o compensation shall
be allowed for an injury or death due to: (1) The employee’s willful misconduct.” Tenn.
Code Ann. § 50-6-110(a) (2014). Although the standard of proof at an expedited hearing
is different than that at a compensation hearing, see Tennessee Code Annotated section
1
 Tennessee Code Annotated section 50-6-116 (2014) provides that “this chapter shall not be remedially or liberally
construed but shall be construed fairly, impartially, and in accordance with basic principles of statutory construction
and this chapter shall not be construed in a manner favoring either the employee or the employer.”

                                                           6
50-6-239(d)(1) (2014), an employee cannot recover benefits at an expedited hearing if the
employer proves the elements of an affirmative defense. Since I believe that Employer
in the present case successfully established the elements of its willful misconduct
defense, I conclude that Employee’s claim should have been denied. Therefore, I
respectfully dissent.




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