           TENNESSEE BUREAU OF WORKERS' COMPENSATION
          IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                           AT KINGSPORT

James Dockery,                               )   Docket No. 2016-02-0511
           Employee,                         )
v.                                           )
                                             )   State File No. 60592-2016
Morristown Distribution Services, Inc.,      )
            Employer,                        )
And                                          )   Judge Brian K. Addington
                                             )
Cherokee Ins. Co.,                           )
             Carrier.                        )


           EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS


        This matter came before the undersigned Workers' Compensation Judge on
March 2, 20 17, upon the Request for Expedited Hearing filed by James Dockery for
medical benefits. Morristown Distribution Services disputes whether Mr. Dockery is
entitled to the requested benefits because of his alleged willful misconduct pursuant to
Tennessee Code Annotated section 50-6-110 (2016). The Court holds Mr. Dockery has
come forward with sufficient evidence to establish he is likely to prevail at a hearing on
the merits, and therefore he is entitled to the requested benefits.

                                    History of Claim

       Mr. Dockery began working as a truck driver for MDS on February 8, 2016. As
part of his orientation, he acknowledged a receipt of MDS' handbook and signed a
written job description.

       On August 5, 2016, while unloading freight from his truck, Mr. Dockery felt a pop
and a burning sensation in his right shoulder and neck. On August 8, he reported his
injury to MDS. MDS denied Mr. Dockery's claim, asserting he engaged in willful
misconduct when he unloaded his truck without permission.


                                            1
                            Mr. Dockery's Version of Events

       Mr. Dockery testified that when he arrived at MDS' client's facility, no one was
available to unload his cargo. He called Johnny Trent, MDS' driver manager, who gave
him permission to unload the truck. As he unloaded the truck, he injured his shoulder
and neck.

       During the hearing, Mr. Dockery admitted MDS has a "no-touch" policy, which
means that a driver does not unload his truck without express permission from MDS.
Drivers instead use lumpers to unload the majority of loads. Mr. Dockery claimed
drivers unloaded one percent of loads and that he received payment for unloading his
truck through a miscellaneous notation on his check. He testified he would not have
unloaded the truck if Mr. Trent had not given him permission.

                              Mr. Trent's Version of Events

       Mr. Trent testified that he does not allow drivers to unload trucks. He stated that
MDS adopted the "no-touch" policy in order to eliminate driver injuries. Previously, the
company had several of its drivers suffer injuries as the result of unloading cargo.
According to Mr. Trent, if there is not a lumper on site, the driver must take the load to
another facility where available lumpers will offload the delivery. Afterwards, another
trucking company will return the load to the client's facility. Mr. Trent testified that he
never gives drivers authority to unload because he observed too many drivers suffering
injuries while doing so.

       Mr. Trent acknowledged that on the date of injury Mr. Dockery called and
requested to unload the truck. However, Mr. Trent maintained that he did authorize Mr.
Dockery to unload the truck. According to Mr. Trent, nothing in MDS' records indicated
MDS paid either Mr. Dockery or lumpers to unload the truck.

     Mr. Trent signed an undated statement prepared by Stephanie Headrick, safety
manager, in which he stated that he told Mr. Dockery he did not want drivers unloading.

                            Ms. Headrick's Version of Events

        Mr. Dockery spoke with Ms. Headrick and Mr. Trent when Mr. Dockery reported
his alleged injury. She prepared two documents concerning the case: one for Mr. Trent
and one for herself. She does not recall the date she prepared Mr. Trent's statement, but
it mirrored Mr. Trent's testimony. She also explained a factual error contained in her
statement. Her statement read that Mr. Dockery called to get approval to unload, and Mr.
Trent did give him approval. However, Ms. Headrick testified that the statement is a
typographical error and should read, Mr. Trent "did not give" Mr. Dockery approval to
unload the truck. When questioned about which handbook was in effect at the time of

                                             2
Mr. Dockery's injury, Ms. Headrick identified exhibit eight.

      Ms. Headrick testified MDS did not discipline Mr. Dockery for his actions on the
day ofhis injury.

                               Job Description and Handbook

       According to the job description Mr. Dockery signed:

             •!• Drivers must have basic knowledge of proper loading and unloading
                 cargo-using devices such as two wheel hand trucks, carts, and pallet
                 jacks.
             •!• Drivers must have basic knowledge of proper loading and unloading
                 procedures and blocking, bracing, and securement of cargo on
                 vehicle.
             •!• Drivers must be capable of performing lifting, bending, stooping,
                 and reaching to accomplish loading and unloading trucks.

(Ex. 6.)

       According to the MDS's handbook in effect at the time of the injury, "It is [MDS']
company policy that if a lumper is available, the lumper must be used for unloading. A
driver cannot unload based on his own decision to do so." Further, "If you are required
to assist in unloading, you must call dispatch before unloading, in order to be
compensated." (Ex. 8 at 28.)

                                  Parties' Arguments

       During the hearing, Mr. Dockery asserted that Mr. Trent gave him permission to
unload the truck because there were no lumpers at the client's location, and while doing
so he injured his shoulder and neck. He received pay for unloading the truck, and MDS
did not discipline or terminate him for his actions. He requested medical benefits in the
form of a panel of physicians.

       MDS asserted that Mr. Trent did not give Mr. Dockery permission to unload the
truck, and according to the company handbook, a driver may not unilaterally elect to
unload his truck. Mr. Dockery's actions constituted willful misconduct and the Court
should deny his request for medical benefits pursuant to Tennessee Code Annotated 50-6-
110 (2016).

                          Findings of Fact and Conclusions of Law

           As in all workers' compensation actions, Mr. Dockery, as the claimant, has the

                                              3
burden of proof on all essential elements of his claim. Tenn. Code Ann.§ 50-6-239(c)(6)
(20 16); see also Buchanan v. Car/ex Glass Co., 2016 TN Wrk. Comp. App. Bd. LEXIS
39, at *5 (Sept. 29, 2016). He need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief at an expedited hearing. McCord
v. Advantage Human Resourcing, 2016 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2016). Instead, at an expedited hearing, Mr. Dockery must come forward with
sufficient evidence from which this Court can determine he is likely to prevail at a
hearing on the merits. !d.

       MDS did not dispute that Mr. Dockery's injury arose primarily out of and in the
course and scope of his employment. Rather, it argued that his actions constituted willful
misconduct, pursuant to Tennessee Code Annotated section 50-6-llO(a) (2016), which
bars his claim. When denying a claim on this basis, the burden of proof rests with the
employer. Tenn. Code Ann.§ 50-6-110(b) (2016).

       In Roper v. A !legis Group, 2017 TN. Wrk. Comp. App. Bd. LEXIS 14, at *6-7
(Feb. 10, 2017), the Workers' Compensation Appeals Board restated the four-part test
espoused by the Tennessee Supreme Court in Mitchell v. Fayetteville Public Utilities, 368
S.W.3d 442 (Tenn. 2012), as the standard for adjudicating a willful misconduct defense.
To prevail on this affirmative defense, MDS has the burden of establishing four elements:
(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. !d. at *7.

       The parties produced conflicting evidence on these points Mr. Dockery's job
description contains several references to the requirement of unloading a truck.
Moreover, MDS' handbook requires only 1) that a lumper must unload if a lumper is
available, and 2) that a driver cannot make a unilateral decision to unload a truck. Mr.
Trent testified he never gives drivers permission to unload trucks, yet Mr. Dockery's
testimony that the employer allowed drivers to unload one percent of the time was
unopposed. The Court finds that MDS will allow a driver to unload a truck, although the
rule is a driver cannot unload based on his own decision to do so. Further, the Court
finds that Mr. Dockery knew the rule because he requested permission to unload the
truck.

       However, MDS failed to prove Mr. Dockery knew there was a danger in
unloading the truck. The handbook does not contain an absolute prohibition against
unloading, and Mr. Dockery's job description appears to anticipate that drivers may, at
times, have to unload a truck. It is MDS' burden to prove an inherent danger in drivers
unloading cargo; it failed to do so. The handbook requires only that a driver get
permission to unload; it does not forbid the practice entirely.


                                            4
       Further, MDS failed to prove its bona fide enforcement of the rule. Valid
enforcement would require discipline of some sort for violating the rule. However, Ms.
Headrick confirmed that Mr. Dockery suffered no discipline as a result of unloading his
truck on the date of injury.

        Finally, it appears to the Court that Mr. Dockery had a valid excuse for violating
the rule. Although Mr. Trent allegedly did not give him permission .to unload the truck,
the evidence establishes there were no lumpers available to unload it. Mr. Trent testified
that in those cases he would direct a driver to a different facility that had lumpers, and a
different trucking company would take the load to the client. Yet, Mr. Trent did not
direct Mr. Dockery to another facility and was adamant that no lumpers unloaded the
truck. Since there were no lumpers and Mr. Dockery did not direct him to another
facility, the Court finds Mr. Dockery had a reasonable excuse for unloading the truck,
even if he did so "without permission."

      Based on all the evidence presented, the Court holds MDS failed in proving the
elements of a willful misconduct defense as set forth in Mitchell and, therefore has not
successfully established its affinnative defense. Accordingly, the Court holds Mr.
Dockery is likely to succeed at a hearing on the merits regarding the misconduct defense.

IT IS, THEREFORE, ORDERED as follows:

   1. MDS shall provide Mr. Dockery with a panel of physicians in accordance with
      Tennessee Code Annotated section 50-6-204 (2016) and shall make an
      appointment with the physician he chooses from the panel.

   2. This matter is set for a Scheduling Hearing on April 28, 2017, at 10:00 a.m.
      Eastern Time. The parties must call 855-943-5044 toll-free to participate in the
      hearing. Failure to appear by telephone may result in a determination of the issues
      without your further participation.

   3. Unless interlocutory appeal of the Expedited Hearing Order is filed,
      compliance with this Order must occur no later than seven business days
      from the date of entry of this Order as required by Tennessee Code
      Annotated section 50-6-239(d)(3) (2016). The Insurer or Self-Insured
      Employer must submit confirmation of compliance with this Order to the
      Bureau by email to W Compliance.Program@tn.go no later than the
      seventh business day after entry of this Order. Failure to submit the
      necessary confirmation within the period of compliance may result in a
      penalty assessment for non-compliance.




                                             5
4. For questions regarding compliance, please contact the Worker's Compensation
   Compliance Unit via email W 'ompliance.Prog:ram@.tn.gov or by calling (615)
                                                       ~




   253-1471 or (615) 532-1309.


                            ENTERED this the   7th   day ofMarch, 2017.


                             Is/ Brian K. Addington
                            Judge Brian K. Addington
                            Court of Workers' Compensation Claims




                                     6
                                       APPENDIX

Exhibits:
       1. Affidavit of James Dockery
       2. Wage Records
       3. Receipt for Handbook
       4. Statement by Stephanie Headrick-Safety Mgr.
       5. First Report of Injury
       6. Job Description
       7. Employer's Handbook
       8. Employer's Handbook in place at time of accident
       9. Statement of Johnny Trent
       10. Trip Summary Sheet (for identification only)

Technical Record
      1. Petition for Benefit Determination
      2. Dispute Certification Notice
      3. Request for Expedited Hearing
      4. Employer's Written Statement for Expedited Hearing

       The Court did not consider attachments to Technical Record filings unless
admitted into evidence during the Expedited Hearing. The Court considered factual
statements in these filings or any attachments to them as allegations unless established by
the evidence.




                                             7
                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of serviee on this the ih day of
March, 2017.

Name                          Certified   Via    Via     Service sent to:
                                                            j

                               Mail       Fax   Email
Ameesh Kherani, Esq.                               X     akherani@dhdlaw@gmail.com
Employee's Attorney
David Hall, Esq.                                   X     nsnider@morganakins.com
Employers' Attorney




                                           /s/ Penny Shrum
                                          PENNY SHRUM, Court Clerk
                                          WC.CourtClerk@tn.gov




                                            8
