           TENNESSEE BUREAU OF WORKERS' COMPENSATION
              WORKERS' COMPENSATION APPEALS BOARD


Stephen W. Shepherd                      ) Docket No. 2015-01-0325
                                         )
v.                                       )       State File No. 79562-2015
                                         )
Haren Construction Company, Inc., et al. )
                                         )
                                         )
Appeal from the Court of Workers'        )
Compensation Claims                      )
Thomas Wyatt, Judge                      )




            Affirmed as Modified and Remanded - Filed March 30, 2016


This interlocutory appeal involves an employee who was injured while in the course and
scope of his employment and was subsequently terminated by the employer. The
employee requested payment of temporary disability benefits, which the employer denied
on the basis it terminated the employee for cause and would have provided light duty
work but for the termination. Following an expedited hearing, the trial court denied the
employee's request for temporary disability benefits, finding the employee was
terminated for cause. The employee has appealed. Having carefully reviewed the record,
we affirm the trial court's decision denying temporary disability benefits, modify the
decision concerning the payment of medical benefits based on the parties' stipulation,
and remand the case for further proceedings as may be necessary.

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

William J. Brown, Cleveland, Tennessee, for the employee-appellant, Stephen W.
Shepherd


                                             1
Leslie Bishop, Knoxville, Tennessee, for the employer-appellee, Haren Construction
Company, Inc.

                         Factual and Procedural Background

       Stephen Shepherd ("Employee"), a resident of Polk County, Tennessee, was
employed as a heavy equipment operator by Haren Construction Company, Inc.
("Employer"), on July 14, 2015, when he suffered a laceration injury to his left forearm
that arose primarily out of and in the course and scope of his employment. Employer
accepted the injury as compensable. Although there is some discrepancy regarding the
exact circumstances of the incident causing the injury, the occurrence of the injury is
undisputed. Employee was provided medical care at a walk-in urgent care clinic in Clay,
North Carolina, where Employee was working with a five-person crew installing
pipeline. Employee's laceration was sutured and he was released to work with
instructions to keep the wound clean and dry for two days. He returned to work on the
afternoon of his injury.

       Employee worked the following day, July 15, 2015. On July 16, 2015, Employee
was operating a backhoe and accidently ruptured a gas line while digging a trench in
which pipe was to be laid. The incident resulted in a work stoppage until the gas line
could be repaired, and the crew resumed work after repairs were completed. The
following day was a travel day for the crew and after a short period of time at the
worksite the crew left to return to Tennessee. On July 18, 2015, Employee's supervisor
called him and advised that he had been terminated for "running the equipment erratically
and then hitting a gas line."

       The following work day, Employee went to Employer's office and spoke with
Employer's president, Evan Haren. There is a conflict in the parties' testimony
concerning whether the conversation between Employee and Mr. Haren included a
discussion about Employee's injury, but Employee's purpose in meeting with Employer
was to address the reason for his termination. Mr. Haren testified that, before he met
with Employee, he was aware that a gas line had been ruptured by an operator and that
the rupture had shut down work for a brief period. He testified he did not know who the
operator was and did not know that the operator had been terminated until the meeting
with Employee. He testified he told Employee "[he] would look into it and if [he] found
anything different [from what had been reported to him] about the incident [he] would get
back with [Employee] and let him know what [he] found." Mr. Haren further testified
there was no mention of Employee's injury or medical care during the meeting, and that
the discussion was limited to Employee's termination.

      In contrast, Employee testified that he told Mr. Haren about his injury during the
meeting and asked, ''who is going to deal with this arm?" Employee testified that Mr.
Haren said he had not been informed of an on-the-job accident, and that he would "look

                                           2
into that and get back to [him]." Employee denied showing Mr. Haren his arm, stating it
was bandaged and "[he] was not going to uncover it." Employee also testified that he
told Mr. Haren he "mashed" his shoulder and that he "was having ... a lot of shoulder
pain in my rotator cuff and everything else."

       Employer did not provide Employee a panel of physicians for follow-up care for
his forearm laceration, and on September 8, 2015, Employee sought treatment on his own
with an orthopedic physician, Dr. Patrick Stone. Dr. Stone was subsequently authorized
by Employer to provide ongoing reasonable and necessary medical care for Employee's
work-related injury. At an expedited hearing, the parties stipulated that all of the medical
expenses incurred as a result of treatment with Dr. Stone for Employee's work injury
were Employer's responsibility.

        The dispute in this case concerns whether Employee is entitled to temporary
disability benefits from the date of his termination until the January 28, 2016 expedited
hearing. 1 Employer contends Employee is not entitled to temporary disability benefits
for the period in question, asserting that Employee was terminated for cause and that it
would have accommodated Employee's work restrictions had he not been terminated.
Employer relies primarily on the July 16, 2015 gas line rupture as the basis for its
termination of Employee, but cited other reasons supporting the termination. In addition
to Employee, four individuals testified at the expedited hearing, including Employee's
supervisor, Employer's president, Employer's safety manager, and a heavy equipment
mechanic for Employer who was present at the worksite when the gas line rupture
occurred. The crux of the parties' dispute is whether Employee's rupturing the gas line
was the result of his failure to follow his supervisor's instructions and improper operation
of the backhoe or was, as characterized by Employee's attorney, an "honest mistake."

        Employee testified that on the day of the gas line rupture, he was experiencing
numbness in his left hand, thumb, and some of his fingers as a result of his work-related
injury two days earlier. He explained that, as a heavy equipment operator, having full
sensation in his hands is essential so he can feel the vibration of the machine he is
operating and any changes in that vibration that would indicate he had come into contact
with something while digging. Because of the laceration on his left arm, Employee
testified he had reduced sensation and experienced difficulty in operating the backhoe.
He also testified that because he was digging parallel to the gas line, it was less likely that
he would feel hesitation if the bucket came into contact with the gas line.

       Employee's testimony directly contradicts that of Employer's witnesses regarding
whether he was instructed not to dig in the area where the gas line was ruptured. He
described working on the backhoe digging parallel to the gas line while his supervisor

I
  Dr. Stone took Employee completely off work for a period of time, during which Employer paid
temporary total disability benefits. Those benefits are not disputed.

                                              3
was located nearby on a trackhoe. Employee's recollection of the events immediately
prior to rupturing the gas line was that a co-worker, Greg Anthony, served as his "ground
man" and watched where Employee was digging to give him instructions or guidance on
digging. Employee testified he is "the only person I would have been paying attention
to," and "[w]hen he told me to make a move, that was the move that got made."
Employee denied having ever heard his supervisor instruct him to stop digging in the area
of the gas line. Employee testified that he was hard of hearing as a result of a work
history of operating heavy machinery, and that he was wearing earplugs at the time of the
incident. He testified that had his supervisor yelled at him to stop digging he would not
have been able to hear him. Further, he testified that the gas line was not marked and that
the ground where he was digging was undisturbed. He testified that a tooth on the
backhoe bucket caught the edge of the gas line ''just enough to cut a little gash in it."

       When questioned on cross-examination regarding whether he had been disciplined
for operating machinery in a dangerous manner, Employee acknowledged having been
reprimanded by his supervisor on one occasion when he hit a "silt fence" with an
excavator and stated that, if he had ever received other reprimands, they were of such an
insignificant nature that they did not "register with [him]." However, he denied having
been reprimanded for operating machinery in a ''wild" manner and testified he would
remember reprimands of that nature.

        The testimony of Employee's supervisor was markedly divergent from that of
Employee. He testified that the gas line around which Employee was digging had been
exposed by workers digging by hand. He testified that when Employee began to use the
backhoe near a section of gas line that was still buried, he instructed Employee to stop
digging to allow another worker to uncover the line by hand with a shovel so it would be
visible. The supervisor stated that Employee heard him tell him to stop digging because
Employee responded, "I see the line. I've got this." The supervisor testified that he told
Employee that he would rather let a laborer uncover it with a shovel and, when Employee
continued to dig, instructed him not to hit the gas line. He stated that Employee took
"two more swipes and cut the gas line in two."

       The supervisor also testified that, before the day the gas line was ruptured, he had
reprimanded Employee four times for operating machinery in an unsafe or "wild"
manner. He testified that after Employee continued to dig in the area of the gas line,
despite having been told to stop digging, he determined the appropriate course of action
was to terminate Employee. Prior to doing so he contacted Employer's safety manager to
discuss the possible termination.

       Mike Bell, a heavy equipment mechanic for Employer, testified he was present at
the worksite and was standing on the curb observing what was going on when the
incident occurred. He testified he heard the supervisor instruct Employee not to continue
digging where the gas line had not been exposed. He testified the supervisor told

                                            4
Employee to let one of the laborers uncover the gas line with a shovel, and that Employee
told the supervisor he could see the gas line and continued digging. He testified that
Employee dug beyond where the gas line was exposed and "[a] couple of swipes later, a
couple of digs later, he ruptured the gas line."

       In addition to testifying about his meeting with Employee following Employee's
termination, Employer's president, Mr. Haren, testified about the company's policy of
providing light duty work to employees with work restrictions, stating "[w]e almost 100
percent of the time utilize light duty for people who get injuries on jobs." He testified
that Employer would have accommodated Employee had he been in need of light duty
work with restrictions limiting him to work with no use of one arm. Employee disputed
whether light duty work would have been available for him, but offered no evidence in
support of his position other than his own testimony.

       Lastly, Employer's safety manager, Mike Herrell, testified that he received a
telephone call from the supervisor concerning whether to terminate Employee and that he
was involved in the decision to terminate Employee. He testified the sole reason for the
termination was Employee's insubordination. He also testified Employer has a policy to
provide reasonable accommodation to injured employees, stating the work would be
"[e]ither in the field or at the office," and that the work "could be through cleaning up
around the office, painting, using a paint brush, any number of things."

        Following an expedited hearing, the trial court found Employer terminated
Employee for cause, observing that Employee's affidavit submitted with his request for
expedited hearing was inconsistent with his testimony at the hearing. The trial court
found Employer's witnesses to be credible and found the termination was consistent with
Employer's policies and, thus, was justified. Accordingly, the trial court denied
Employee's request for temporary disability benefits. Employee has appealed.

                                  Standard of Review

       The standard we apply 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) (2015). 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;

                                            5
        (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.

                                                 Analysis

         As an initial matter, we note that the trial court denied Employee's request for
payment of medical expenses incurred with Dr. Stone. However, the parties stipulated in
the expedited hearing that Dr. Stone was the authorized physician, and the Employer
agreed that the medical expenses associated with Dr. Stone's treatment of the work injury
"would be paid pursuant to the fee schedule." In its brief on appeal, Employer stated that
"the bill for services of Dr. Stone of September 8, 2015, was paid." Therefore, the trial
court's order regarding the denial of payment for the medical expenses arising from the
initial treatment with Dr. Stone for Employee's work injury is modified to provide that
Employer is responsible for all reasonable and necessary medical expenses incurred with
Dr. Stone as a result of the work injury.

       With respect to the trial court's denial of temporary disability benefits, Employee
raises as an issue in the notice of appeal and in his brief whether the trial court erred in
failing to award temporary total disability benefits from the date of Employee's
termination. 2 To receive temporary total disability benefits, an em_ployee must prove (1)
total disability from working as the result of ~ compensable injury; (2) a causal
connection between the injury and the inability to work; and (3) the duration of the period
of disability. Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978). Where the
disability is not total, an employee may recover temporary partial disability benefits if the
employee "is able to resume some gainful employment but has not reached maximum
recovery." Williams v. Saturn Corp., No. M2004-01215-WC-R3-CV, 2005 Tenn. LEXIS
1032, at *6 (Tenn. Workers' Comp. Panel Nov. 15, 2005). See Tenn. Code Ann. § 50-6-
207(2) (2015). Temporary restrictions assigned by physicians during an injured worker's
medical treatment do not establish an entitlement to continued temporary disability
benefits if the employee is able to work without loss of income. See Long v. Mid-
Tennessee Ford Truck Sales, 160 S.W.3d 504, 511 (Tenn. 2005); Vinson v. Firestone
Tire and Rubber Co., 655 S.W.2d 931, 933 (Tenn. 1983).

      Even though an employee has a work-related injury for which temporary benefits
may be payable, an employer may still enforce workplace rules. Carter v. First Source
2
  Employer paid temporary total disability benefits for the period of time Dr. Stone opined Employee was
totally unable to work. All temporary total disability benefits owed have been paid. Employee's request
for temporary total disability benefits is better characterized as a request for temporary partial disability
benefits.

                                                     6
Furniture Grp., 92 S.W.3d 367, 368 (Tenn. 2002). Thus, an employee's termination due
to a violation of workplace rules may relieve the employer of its obligation to provide
temporary partial disability benefits, provided the termination was related to the
workplace violation. See Marvin Windows of Tenn., Inc. v. Gardner, No. W2011-01479-
WC-R3-WC, 2012 Tenn. LEXIS 403, at *9 (Tenn. Workers' Comp. Panel June 8, 2012).
When confronted with such a case, courts must "consider the employer's need to enforce
workplace rules and the reasonableness of the contested rules." Id. at 10. An employer
will not be penalized for enforcing a policy if the court determines "(1) that the actions
allegedly precipitating the employee's dismissal qualified as misconduct under
established or ordinary workplace rules and/or expectations; and (2) that those actions
were, as a factual matter, the true motivation for the dismissal." Durham v. Cracker
Barrel Old Country Store, Inc., No. E2008-00708-WC-R3-WC, 2009 Tenn. LEXIS 3, at
*9 (Tenn. Workers' Comp. Panel Jan. 5, 2009).

       In the instant case, the determinative issues are whether Employer came forward
with sufficient evidence to support its position that Employee was terminated for
violating workplace rules and whether Employee came forward with evidence that the
stated reason for the termination was merely a pretext. The trial court determined that
Employer terminated Employee for cause, "mak[ing] it unnecessary to determine if
[Employer] would have offered [Employee] a light duty position had it not terminated
him." For the reasons that follow, we conclude from our independent review of the
record that the evidence does not preponderate against the trial court's determinations
that Employee was terminated for misconduct and that Employee is not due additional
temporary disability benefits.

       The trial court found Employer's witnesses to be credible and found the actions of
Employee's supervisor and Employer's safety manager in terminating Employee to be
reasonable. While it is the responsibility of a reviewing court to conduct an in-depth
examination of the trial court's factual findings and conclusions, Wilhelm v. Krogers,
235 S.W.3d 122, 126 (Tenn. 2007), our review of the trial court's order is governed by
Tennessee Code Annotated sections 50-6-217(a)(3), as referenced above, and 50-6-
239(c)(7) (2015). Section 50-6-239(c)(7) provides a presumption "that the findings and
conclusions of the workers' compensation judge are correct, unless the preponderance of
the evidence is otherwise." Furthermore, when the trial court has seen and heard the
witnesses, considerable deference must be afforded the trial court's factual findings.
Tyron v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008). Nonetheless, we must still
assess independently where the preponderance of the evidence lies. See Tenn. Code Ann.
§ 50-6-239(c)(7).

       The testimony of Employer's witnesses concerning whether Employee operated
the backhoe contrary to his supervisor's instructions was consistent. As a result of the
manner in which Employee operated the backhoe, the gas line was ruptured, Employer
incurred expenses, and work time was lost. Employer's mechanic, who was present at

                                            7
the jobsite, and Employee's supervisor testified that Employee was asked to stop digging
so a laborer could uncover the gas line. When Employee continued to dig, the supervisor
warned Employee not to hit the gas line. There is no evidence other than Employee's
testimony that the injury to his forearm was causing him to have difficulties operating the
backhoe or that any such difficulties played any part in causing Employee to rupture the
gas line. Moreover, Employee's supervisor testified that Employee did not complain of
any physical difficulties operating the backhoe prior to the gas line rupture. The
Employee Information Handbook, which Employee testified he read, included the
following:

      Employees should be concerned with the care and use of company-owned
      equipment and facilities. Employees are expected to follow all operating
      instructions, safety standards and guidelines.



      Unsafe, destructive, careless, negligent, or improper use or operation of
      equipment may result in disciplinary action up to and including termination
      of employment.

       Employee asserts in his brief on appeal that Employer's president, Mr. Haren,
"acknowledged that [Employee's] alleged conduct as described didn't constitute a
violation of a direct order." On cross-examination Mr. Haren was asked, "[b]ased on
your understanding of the policies, what was the reason why Haren Construction
Company fired [Employee]?" Consistent with the testimony of Employee's supervisor,
Mr. Haren responded "[b]ecause he disobeyed an order not to dig around that gas line."
Employee's counsel then represented to Mr. Haren that when the supervisor told
Employee to stop digging Employee said "I think I can get it," and that the supervisor
responded, "[w]ell, go ahead." With that representation to Mr. Haren of the supervisor's
testimony, counsel then asked, "[i]s that someone disobeying a direct instruction?" Mr.
Haren responded, "[i]f it's worded that way, no." However, Employee's supervisor did
not testify that he told Employee "[w]ell, go ahead," as was represented to Mr. Haren.
Employee does not cite in the record where this alleged testimony of the supervisor
appears and our independent review of the record does not disclose such testimony.

       Employee additionally asserts "[t]here was nothing in the record to suggest that
any past conduct or 'inadequacies' . . . went into the determination to terminate
[Employee]." However, Employee's supervisor was asked whether he had ever
reprimanded Employee about the operation of equipment and testified he had done so
four times before the incident when the gas line was ruptured. The supervisor was asked
whether he was confident he had spoken to Employee about his operation of the
equipment on previous occasions and responded, "[y]es, ma'am. Because I wrote it in
my journal every time I had to." Furthermore, when asked to tell the substance of the

                                            8
conversation he had with Employee when Employee was terminated, the supervisor
testified "I just told him that by the way he'd been running the equipment erratically and
then hitting a gas line that was exposed, then we are going to have to terminate him."
Employee has not offered evidence of any contrary reason for his termination and has not
set forth even a plausible circumstantial case that his termination was motivated by
anything other than the manner in which he operated equipment. Thus, we find that
Employee's actions precipitating his dismissal qualified as misconduct under Employer's
workplace policies and that those actions were the true motivation for Employee's
termination.

        Finally, Employee contends the trial court "did not address the second prong of the
analysis it suggested was necessary for [Employee] to prevail and recover [temporary
disability benefits]," which is ''whether [Employer] ever intended to provide 'light duty
work."' Employer presented unrefuted testimony from both its president and its safety
manager addressing the company's policy regarding the accommodation of light duty
restrictions. Accordingly, we find no merit in Employee's insistence that the company
would not have provided light duty work within Employee's restrictions had Employee
not been terminated for cause.

                                       Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court's decision to deny temporary disability benefits 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 as modified. The case is remanded for any further proceedings that
may be necessary.

                                             !?f~
                                              nav{d
                                                    ~ F. Hensley, Judge
                                                 Workers' Compensation Appeals Board




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

Stephen W. Shepherd                                      )   Docket No. 2015-01-0325
                                                         )
v.                                                       )
                                                         )    State File No. 78562-2015
Haren Construction Co., Inc., 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 30th day of March, 2016.
 Name                    Certified   First Class   Via   Fax        Via     Email Address
                         Mail        Mail          Fax   Number     Email

 William J. Brown                                                     X     wjb@vollaw.com
 Leslie Bishop                                                        X     lbishop@lewisthomason.com
 Thomas Wyatt                                                         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: Jeanette.Baird@tn.gov
