            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD
                 (HEARD AUGUST 30, 2017, AT MEMPHIS)

Larry Butler                                 ) Docket No. 2016-07-0459
                                             )
v.                                           ) State File No. 43507-2016
                                             )
AAA Cooper Transportation, et al.            )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Allen Phillips, Judge                        )

                 Affirmed and Remanded—Filed September 12, 2017

The employee, a truck driver, suffered injuries when the tractor trailer he was driving left
the roadway and overturned. An in-cab video recording system showed the employee
slumped over, suggesting he was either asleep or unconscious, at the time the truck left
the roadway. The employer denied the claim on the bases that the employee’s injury was
idiopathic or was the result of his willful failure to perform a duty required by law as set
out in Tennessee Code Annotated section 50-6-110(a)(5) (2016). The sole issue on
appeal is whether the employer presented sufficient evidence to establish its affirmative
defense of willful failure to perform a duty required by law. The trial court found that it
did not and ordered medical benefits. The employer has appealed. We affirm the trial
court’s decision and remand the case.

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

Christopher M. Myatt, Memphis, Tennessee, for the employer-appellant, AAA Cooper
Transportation

Emily Bragg, Memphis, Tennessee, for the employee-appellee, Larry Butler

                          Factual and Procedural Background

       Larry Butler (“Employee”) worked for AAA Cooper Transportation (“Employer”)
as a truck driver. On May 22, 2016, while driving in Alabama on his assigned route to

                                             1
Florida from Employer’s terminal in Memphis, Tennessee, Employee was involved in an
accident in which his truck left the roadway, crossed the median and the westbound lanes
of the interstate, traveled down an embankment, and ultimately came to rest on its side.
Employee was able to extricate himself from the truck and call 911. He was transported
from the accident scene to the hospital. There is no dispute that Employee was within the
course of his employment at the time of the accident and that he suffered injuries as a
result of the accident.

       The Employer had recently installed a camera system that provided video of both
the inside of the cab as well as the roadway immediately in front of the truck. The video
appears to show Employee in an unconscious state immediately before and throughout
the course of the accident. Employer denied the claim, asserting Employee’s injuries
were idiopathic in nature or were the result of his willful failure to perform a duty
required by law.

        At the expedited hearing, Employee was the only witness to testify. He described
feeling the truck pulling to the left and stated he was unable to bring it back under
control. He denied falling asleep and stated that if he had passed out, it had come on
suddenly and with no warning. He stated that he “didn’t blackout [sic] because there
[was] nothing, no warning, and [he] was awake going down with that truck and going
through all those trees and bushes.” He acknowledged that “anything’s a possibility,” but
reiterated his belief that he did not black out while driving. When questioned about
whether he had gotten a good night’s sleep the night before, he testified that he had and
that he had taken a nap the afternoon before as well. He described feeling good when he
left Employer’s terminal in Memphis. Employee testified that, had he felt tired or
fatigued while driving, he would have taken a break. He denied feeling fatigued or in any
way impaired prior to the accident.

        Because Employer denied the claim, Employee sought treatment with his primary
care physician, Dr. David Guthrie. A medical record from the day after the accident
reflects that Employee reported experiencing some dizziness prior to the accident and
described having some fatigue as a result of new stressors in his life. When questioned
about these symptoms at the expedited hearing, Employee explained that, with respect to
his report of experiencing dizziness, Dr. Guthrie had “asked [him] if [he] got dizzy.” In
response, Employee said he was “just like everybody else. Once in a while you’ll get up
and turn around. That’s the only time . . . like if you get up too fast or something and
[he] didn’t want to lie to him and say no.” He explained that he “didn’t mean at the
wreck.” Furthermore, regarding the report of fatigue due to recent stressors, Employee
explained he meant stressors resulting from having just been in the accident and facing
uncertainty over his employment, not any new stressors before the accident.




                                           2
       After the expedited hearing, the trial court concluded Employee’s injury was not
idiopathic and that he had not willfully failed to perform a duty required by law and
ordered medical benefits.1 Employer has appealed.

                                       Standard of Review

       The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2016) (“There shall be a presumption that the
findings and conclusions of the workers’ compensation judge are correct, unless the
preponderance of the evidence is otherwise.”). However, we review questions of law de
novo with no presumption of correctness. See Am. Mining Ins. Co. v. Campbell, No.
M2015-01478-SC-R3-WC, 2016 Tenn. LEXIS 907, at *18 (Tenn. Workers’ Comp. Panel
Dec. 9, 2016) (“A trial court’s conclusions of law are reviewed de novo upon the record
with no presumption of correctness.”). Moreover, the interpretation and application of
statutes and regulations concerns issues of law, which we review de novo with no
presumption of correctness afforded to the trial court’s findings. See Seiber v. Reeves
Logging, 284 S.W.3d 294, 298 (Tenn. 2009); Hadzic v. Averitt Express, No. 2014-02-
0064, 2015 TN Wrk. Comp. App Bd. LEXIS 14, at *9 (Tenn. Workers’ Comp. App. Bd.
May 18, 2015).

                                              Analysis

        Initially, we note that Employer cites Tennessee Code Annotated section 50-6-
217(a)(3) (2016) (repealed 2017) in support of its argument that the trial court’s decision
is not supported by substantial and material evidence. Section 50-6-217(a)(3) authorized
us to reverse or modify a trial court’s decision if the rights of a party were prejudiced
because the findings of the trial judge were “not supported by evidence that is both
substantial and material in light of the entire record.” However, this code section was
deleted effective May 9, 2017. Consequently, as noted above, the standard we apply in
reviewing the trial court’s decision presumes that the trial judge’s factual findings are
correct unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-
239(c)(7).

       Turning to the merits of the appeal, although Employer asserted at the expedited
hearing that Employee’s claim was barred because his injury was idiopathic and he had
willfully failed to perform a duty required by law, only the latter defense has been raised
as an issue on appeal. Employer argues that Employee willfully operated the truck while
feeling fatigued or impaired, violating federal and state law with respect to truck drivers
and their obligation to remain alert while operating their vehicles. In asserting this

1
 The trial court denied Employee’s request for temporary disability benefits but, because Employee does
not raise this as an issue on appeal, we forego any discussion of that issue.

                                                  3
defense, Employer relies on Tennessee Code Annotated section 50-6-110(a)(5) (2016),
which states that “[n]o compensation shall be allowed for an injury or death due to . . .
[t]he employee’s willful failure to perform a duty required by law.” With respect to this
argument, the trial court concluded there was “no evidence [Employee] willfully drove
the truck on the day of the accident knowing he was too fatigued or impaired to safely
operate the truck.” We agree.

       There is no dispute that the state and federal regulations relied upon by Employer
apply to Employee in his capacity as a truck driver. Furthermore, there is no dispute that
the camera system in Employee’s truck shows him slumped over, apparently asleep or
unconscious, immediately prior to and during the accident. However, there is no proof in
the record before us that Employee intentionally operated the truck in a fatigued or
impaired state. Although the video evidence may support a conclusion that he fell asleep
or was rendered unconscious for an unknown reason, it does not support an inference that
he willfully failed to perform a duty required by law. He testified he had gotten a good
night’s sleep the night before and had taken a nap the afternoon before picking up his
truck, and he felt good when leaving Employer’s terminal. He described the extensive
driving he has done over the course of his career with no similar incidents. He stated
that, had he begun to feel fatigued or ill, he would have stopped and taken a break. The
video system, while showing Employee slumped over immediately prior to the accident,
does not show how he came to be that way.

       Employer insists that the trial court incorrectly focused on whether Employee’s
falling asleep or becoming unconscious was “intentional,” rather than on whether
Employee “intentionally elected to drive the commercial motor vehicle” in an impaired
state. Yet, Employer points to no evidence in the record that supports its theory. Instead,
Employer asks us to infer that because the video showed Employee either asleep or
unconscious, he must have known he was operating the truck in an impaired state prior to
the accident. The trial court declined to draw such an inference, and we agree with this
determination. In short, the record is devoid of proof that Employee took any action,
willful or otherwise, in contravention of either federal or state law applicable to truck
drivers.

                                       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. Accordingly, the trial
court’s decision is affirmed, and the case is remanded for any further proceedings that
may be necessary.




                                            4
                         TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                           WORKERS’ COMPENSATION APPEALS BOARD


Larry Butler                                               )   Docket No.   2016-07-0459
                                                           )
v.                                                         )   State File No. 43507-2016
                                                           )
AAA Cooper Transportation, et al.                          )


                                       CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 12th day of September, 2017.
 Name                      Certified   First Class   Via   Fax      Via     Email Address
                           Mail        Mail          Fax   Number   Email

 Emily B. Bragg                                                       X     ebragg@forthepeople.com
                                                                            tschumpert@forthepeople.com
 Christopher M. Myatt                                                 X     cmyatt@spicerfirm.com
                                                                            tlamer@spicerfirm.com
 Allen Phillips, Judge                                                X     Via Electronic Mail
 Kenneth M. Switzer,                                                  X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                  X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov
