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

Paula Dugger,                                              )    DOCKET No.: 2015-05-0341
      Employee,                                            )
v.                                                         )    STATE FILE No.: 69225-2015
Home Health Care of Middle TN,                             )
      Employer,                                            )    Judge Dale Tipps
And                                                        )
United Heartland,                                          )
      Insurance Carrier.                                   )


                          ORDER GRANTING SUMMARY JUDGMENT


        This matter came before the Court upon the Motion for Summary Judgment (MSJ)
filed pursuant to Rule 56 of the Tennessee Rules of Civil Procedure by the employer,
Home Health Care of Middle TN (HHC), on May 4, 2016.1 The present focus of this
case is whether Ms. Dugger is entitled to medical and temporary disability benefits
pursuant to the Workers’ Compensation Law. The central legal issue is whether HHC is
entitled to judgment as a matter of law because Ms. Dugger’s injuries did not arise
primarily out of and in the course and scope of her employment. For the reasons set forth
below, the Court finds HHC is entitled summary judgment.

                                              Procedural History

       Ms. Dugger filed a Petition for Benefit Determination on September 2, 2015,
seeking medical and temporary disability benefits. The parties did not resolve the
disputed issues through mediation, and the mediating specialist filed a Dispute
Certification Notice. Ms. Dugger filed a Request for Expedited Hearing, and this Court
heard the matter in an interlocutory hearing on January 19, 2016.

      At the Expedited Hearing, Ms. Dugger argued that travel was an integral part of
her employment responsibilities, as evidenced by HHC’s requirements that she maintain

1
    The parties did not file the Joint Statement of Facts and Documentary Evidence until May 11, 2016.

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a car and remain on call for HHC to reassign her to a different location at any time.
Further, she contended travel was an integral part of the employment contract. As a
result, she asserted the coming and going rule did not preclude compensability in this
case.

       HHC countered that the appropriate inquiry is whether, at the time of the accident,
Ms. Dugger was in the course and scope of her employment. It contended she was not on
a special errand on the day of the accident, she received no mileage or expense
reimbursement, and she received no compensation for her travel time. Therefore, no
exception to the coming and going rule applies.

       Following the hearing, the Court issued an Expedited Hearing Order on January
29, 2016, denying the requested benefits. The Court determined Ms. Dugger was not in
the course of her employment at the time of the accident, which occurred while she was
traveling to work.

       Ms. Dugger filed an appeal of the Court’s order on February 8, 2016, and the
Workers’ Compensation Appeals Board issued its decision on March 16, 2016. The
Board affirmed the Court’s finding that Ms. Dugger was not a travelling employee and
that her accident did not fall within any exception to the “going and coming” rule. It
remanded Ms. Dugger’s case for any further proceedings, and HHC then filed for
summary judgment. Ms. Dugger filed a response in opposition, and both parties waived
a hearing on the motion.

                                          Facts

       According to the parties’ Joint Statement of Stipulated Facts, Ms. Dugger worked
as a Licensed Practical Nurse for HHC, providing residential home health care to various
patients in Middle Tennessee. On February 21, 2015, HHC assigned Ms. Dugger to
provide nursing services to an HHC client in Rockvale, Tennessee, approximately
seventy-five miles from Ms. Dugger’s home in Lawrenceburg, Tennessee. While she
was on the way to the patient’s home, the roads on Ms. Dugger’s route were icy, so she
decided to return home and notify HHC she was not going to make it to the appointment.
On her way home, another vehicle struck Ms. Dugger’s car, causing injuries that required
medical treatment and resulted in her inability to return to work.

      When Ms. Dugger was hired, HHC provided her a written job description and
Employee Handbook, which she considered conditions of her employment. Based on
these documents, as well as her experience as an employee of HHC, Ms. Dugger
understood she was required to provide her own transportation to each assigned patient’s
home. The Employee Handbook required employees to furnish their own transportation
and keep their automobiles in “good running order, clean, neat and dependable.”
Employees were also required to maintain automobile liability insurance with limits of at

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least $100,000/$300,000 and provide evidence of coverage to HHC.

       Ms. Dugger’s job description allowed HHC to “reassign duties at any time.” She
understood this to mean that while she was on assignment at a patient’s home, she was
subject to reassignment without notice and was responsible for her own transportation to
the new location. This had occurred previously.

       Although HHC, on occasion, reimbursed Ms. Dugger for her mileage expenses for
special trips, Ms. Dugger received no compensation for her mileage or reimbursement for
vehicle maintenance or insurance costs for the date of her accident. HHC did not
compensate her for her travel time, and her shift did not begin until she arrived at the
patient’s home. Her shift ended when she left the patient’s home.

                       Findings of Fact and Conclusions of Law

       Motions for summary judgment are governed by Tennessee Code Annotated
section 20-16-101 (2015) and Tennessee Rule of Civil Procedure 56. Rule 56.03 requires
that a motion for summary judgment “be accompanied by a separate concise statement of
the material facts as to which the moving party contends there is no genuine issue for
trial.” Aside from Rule 56, in 2011, the Tennessee General Assembly codified the
burden of proof applicable to a motion for summary judgment filed by a party who does
not bear the burden of proof at trial as follows:

      In motions for summary judgment in any civil action in Tennessee, the
      moving party who does not bear the burden of proof at trial shall prevail on
      its motion for summary judgment if it:

             (1) Submits affirmative evidence that negates an essential
                 element of the nonmoving party’s claim; or

             (2) Demonstrates to the court 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 (2015).

       The nonmoving party must “demonstrate the existence of specific facts in the
record which could lead a rational trier of fact to find in favor of the nonmoving party.”
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn. 2015).
Prior to Rye, trial and appellate courts were required to assume that the nonmoving party
faced with a motion for summary judgment might, by the time of trial, produce evidence
to support the nonmoving party’s claim. See Rye, 477 S.W.3d at 261. However, with the
passage of Tennessee Code Annotated section 20-16-101 and the reexamination of the

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summary judgment standard in Rye, the burden falls to the nonmoving party to produce
evidence to establish the essential elements of the nonmoving party’s claim in response to
the motion for summary judgment. “The focus is on the evidence the nonmoving party
comes forward with at the summary judgment stage, not on hypothetical evidence that
theoretically could be adduced . . . at a future trial.” Id. at 265 (emphasis added). Thus,
in this case, HHC’s summary judgment motion requires Ms. Dugger to submit evidence
establishing all the essential elements of her workers’ compensation claim.

       One of those elements is the requirement that Ms. Dugger must demonstrate her
injury arose primarily out of and occur in the course and scope of the employment. Tenn.
Code Ann. § 50-6-102(14) (2015). “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. As the Workers’
Compensation Appeals Board noted:

       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’l 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).

Johnson v. Wal-Mart Associates, Inc., No. 2014-06-0069, 2015 TN Wrk. Comp. App.
Bd. LEXIS 18, at *11-12 (Tenn. Workers’ Comp. App. Bd. July 2, 2015).

       Ms. Dugger has not established this element of her claim because injuries
sustained by an employee while traveling to or from work are generally not considered
within the course of employment unless they occur on the employer’s premises. Howard
v. Cornerstone Med. Assoc., P.C., 54 S.W.3d 238, 240 (Tenn. 2001). The Howard court
explained:

       The reason supporting this rule is evident: travel to and from work is not,

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       ordinarily, a risk of employment. Rather, driving to work falls into the
       group of all those things a worker must do in preparation for the work day,
       such as dressing; and driving from work is often a prerequisite to getting
       home.

Id. at 241.

       There are exceptions to this general rule. Under the special errand exception, an
employee may be entitled to compensation for injuries sustained while performing some
special act, assignment, or mission at the direction of the employer. Id. at 240. “The
reason for this exception is that ‘the employment imposes the duty upon the employee to
go from place to place at the will of the employer in the performance of duty and the risks
of travel are directly incident to the employment itself.’” Id. at 241. Injuries sustained by
employees traveling in a company car while going to and from work are also
compensable. Id. The Supreme Court has also held that an employee’s need to carry his
own carpentry tools in his truck, combined with a provision for travel reimbursement in
the employment contract, removed his case from the general rule. Id. In addition,
compensation has been awarded where the journey itself “is a substantial part of the
services for which the workman was employed and compensated.” Pool v. Metric
Constructors, Inc., 681 S.W.2d 543, 544 (Tenn. 1984).

       The Court finds Ms. Dugger’s accident did not occur within any of the above-
enumerated exceptions. Ms. Duggar was not on a special errand or assignment at the
time of her accident. Further, she was not travelling in a company car, nor was she paid
for her travel time or reimbursed for her mileage expense. Perhaps most significantly,
Ms. Dugger’s shift did not begin until she arrived at the patient’s house, and she did not
make it to the patient’s house on the day of the accident.

       Another exception to the general rule is the traveling employee, working away
from the regular jobsite. Howard, 54 S.W.3d at 241. This exception “is generally
applied to employees who travel extensively to further the employer’s business, such as
traveling salesmen. The travel is an integral part of the job and differs from an ordinary
commuter’s travel, thereby exposing the traveling employee to greater risks.” Id.

       Ms. Dugger contends she falls into the traveling employee exception because she
did not have a fixed place of work and was required to travel to assigned patient homes.
This argument is unpersuasive. In Sharp v. Northwestern Nat’l Ins. Co., 654 S.W.2d 391
(Tenn. 1983), the Supreme Court held an employee who was on call at all times and
traveled to different job sites could not recover workers’ compensation benefits for an
injury resulting from an automobile accident while driving home from work.

       The reason supporting this rule is evident: travel to and from work is not,
       ordinarily, a risk of employment. Rather, driving to work falls into the

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       group of all those things a worker must do in preparation for the work day,
       such as dressing; and driving home from work is often a prerequisite to
       getting home. While this travel is some modicum of benefit to the
       employer, travel to and from work is primarily for the benefit of the
       employee: if he doesn’t present himself at the work place, he is not
       compensated for his labors.

Id. at 392.

       The Court went on to distinguish cases in which an employee may recover for an
injury sustained while traveling for work:

       These cases have in common the element of an undefinable boundary for
       the beginning and ending of the claimant’s work environment. The very
       nature of the employments rendered that environment amorphous. And yet,
       it is certain the claimants were placed in circumstances which were directly
       related to their employment. And, therefore, injuries arising out of those
       circumstances were compensable.

Id.

       The Supreme Court considered facts similar to Ms. Dugger’s claim in Howard v.
Cornerstone Med. Assocs., P.C., 54 S.W.3d 238 (Tenn. 2001). Howard involved a
doctor who sustained injuries in an automobile accident. Dr. Howard’s employment
contract required him to see patients at several facilities and hospitals. At the time of the
accident, he was driving his personal automobile to a nursing home that had called him to
see a new patient. Even accepting Dr. Howard’s claim that his salary included travel
expenses, the Court found he did not fall under the “traveling employee” exception.
Instead, the Court found his travel “was incidental at best, that his work boundaries were
definable, and that his employment placed him at no greater risk than any other motorist
on the highway.” Id. at 241.

        The Court finds Ms. Dugger was not a travelling employee. Even though she had
to travel to her job, the travel itself was not a substantial part of her employment. See
Smith v. Royal Globe Ins. Co., 551 S.W.2d 679, 681 (Tenn. 1977)(employee, in reality,
was simply a commuter, even though the distance involved was substantial, and the situs
of his duties changed from time to time).

       In the alternative, Ms. Dugger also proposes another exception to the rule. She
contends the distinguishing factor in her case is that her provision and maintenance of a
vehicle to do the job was a condition of her employment with HHC. The benefit to HHC
was the ability of HHC to call and direct Ms. Dugger to additional “prn” or on-call
assignments. Ms. Dugger cited Hollin v. Johnston Cnty. Council on Aging, 639 S.E.2d

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78, 84-85 (N.C. Ct. App. 2007), which held:

         Where an employee who is required to furnish their own vehicle as part of
         their employment is injured going to or coming from work, such injuries
         are covered by the Workers’ Compensation Act. (Citation omitted).
         Plaintiff here was required to furnish her own vehicle for her employer’s
         use in providing in-home care to patients. “[D]elivering nursing services to
         patients at their homes is the raison d’etre of [defendant’s] business, and . .
         . traveling to patients’ homes is an essential component of that service.”
         (citation omitted). Plaintiff was traveling to her first patient’s home at the
         time she sustained her injuries. She was required to travel there in her own
         vehicle, and so was “required by the very nature of her job description to
         submit herself to the hazards of day-to-day travel . . . back and forth to the
         homes of her patients.” Id. Unlike the public at large, who may choose
         their mode of transportation, plaintiff was required to use her private
         vehicle as part of her employment. “As such, [plaintiff] was acting within
         the course of her employment with [defendant] at the time her injuries were
         sustained.”

       All the cases cited by Ms. Dugger in support of this proposition, including Hollin,
are from foreign jurisdictions. Ms. Dugger provides no legal authority demonstrating the
exception described in Hollin exists in Tennessee,2 but suggests that the reasoning used
by the Hollin court is the same as that of Tennessee courts dealing with the “company
car” exception. A careful review of Tennessee case law by the Court reveals no such
exception in our coming and going rule. Creating a new exception is the province of the
appellate courts. To the extent Ms. Dugger requests this Court to carve out a new
exception, the Court declines to do so.

       The Court is required to review the evidence in the light most favorable to the
nonmoving party and to draw all reasonable inferences favoring the nonmoving party.
Martin v. Norfolk S. Ry Co., 271 S.W.3d 76, 84 (Tenn. 2008). Having carefully reviewed
and considered the evidence in the light most favorable to Ms. Dugger, the Court finds
HHC has demonstrated Ms. Dugger’s evidence is insufficient at the summary judgment
stage to establish an injury arising primarily out of and in the course and scope of her
employment as is required for her to prevail at trial. See Rye, 477 S.W.3d at 265.

IT IS, THEREFORE, ORDERED as follows:
2
  It is noteworthy that the court in Hollin based its decision at least in part on a requirement that the North Carolina
Workers’ Compensation Act should be liberally construed and that “[w]here any reasonable relationship to
employment exists, or employment is a contributory cause, the court is justified in upholding the award as arising
out of employment.” Hollin, 639 S.E.2d at 84. This is inconsistent with the mandate of Tennessee Code Annotated
section 50-6-116 (2015) that the Workers’ Compensation Law “shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with basic principles of statutory
construction favoring neither the employee nor employer.”

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   1. HHC’s Motion for Summary judgment is granted, and Ms. Dugger’s claim against
      HHC and its workers’ compensation carrier for the requested workers’
      compensation benefits is dismissed on the merits with prejudice to its refiling.

   2. The filing fee for this this cause of $150.00 is taxed to the Employer, HHC,
      pursuant to Rule 0800-02-21-.07 of the Mediation and Hearing Procedures, for
      which execution may issue, as necessary.


      ENTERED this the 15th day of June, 2016.


                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims


Right to Appeal:

       Tennessee Law allows any party who disagrees with this Order to appeal the
decision to the Workers’ Compensation Appeals Board or the Tennessee Supreme Court.
To appeal your case to the Workers’ Compensation Appeals Board, you must:

   1. Complete the enclosed form entitled: “Compensation Hearing Notice of Appeal.”

   2. File the completed form with the Court Clerk within thirty calendar days of the
      date the Workers’ Compensation Judge entered the Compensation Hearing Order.

   3. Serve a copy of the Compensation Hearing Notice of Appeal upon the opposing
      party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is
      practicable. Failure to timely pay the filing fee or file the Affidavit of

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      Indigency in accordance with this section shall result in dismissal of the
      appeal.

   5. The party filing the notice of appeal, having the responsibility of ensuring a
      complete record on appeal, may request, from the Court Clerk, the audio recording
      of the hearing for the purpose of having a transcript prepared by a licensed court
      reporter and filing it with the Court Clerk within fifteen calendar days of the filing
      of the Expedited Hearing Notice of Appeal. Alternatively, the party filing the
      appeal may file a joint statement of the evidence within fifteen calendar days of
      the filing of the Compensation Hearing Notice of Appeal. The statement of the
      evidence must convey a complete and accurate account of what transpired in the
      Court of Workers’ Compensation Claims and must be approved by the workers’
      compensation judge before the record is submitted to the Clerk of the Appeals
      Board. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (2015).

   6. After the Workers’ Compensation Judge approves the record and the Court Clerk
      transmits it to the Workers’ Compensation Appeals Board, the appeal will be
      docketed and assigned to an Appeals Board Judge for review. At that time, a
      docketing notice shall be sent to the parties. Thereafter, the parties have fifteen
      calendar days to submit briefs to the Appeals Board for consideration. See Tenn.
      Comp. R. & Regs. 0800-02-22-.02(3) (2015).

    To appeal your case directly to the Tennessee Supreme Court, the
Compensation Order must be final and you must comply with the Tennessee Rules
of Appellate Procedure. If neither party timely files an appeal with the Appeals
Board, this Order will become final by operation of law thirty calendar days after
entry, pursuant to Tennessee Code Annotated section 50-6-239(c)(7).




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                             CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Order Granting Summary
 Judgment was sent to the following recipients by the following methods of service on this
 the 15th day of June, 2016.


Name                Certified    Via Email        Email Address
                    Mail
Richard Matthews                       X          Rmatthews95@aol.com
Gordon Aulgur                          X          Gordon.aulgur@accidentfund.com




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




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