                                                                                    FILED
                                                                               October 1 9~ 2017

                                                                                   TN <COURTOF
                                                                           1\ ORKI!:.R.S' OOllPii!:NSATION
                                                                                       'C 1AD.IS

                                                                                    Time 7:40 Ml
            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT MEMPHIS

JAYBURNETT,                                )       Docket No. 2017-08-0409
        Employee,                          )
v.                                         )
                                           )
BUILDERS TRANSPORTATION,                   )       State File No. 14753-2017
         Employer,                         )
And                                        )
                                           )
KEYRISK,                                   )       Judge Deana Seymour
              Insurance Carrier.           )


                    AMENDED EXPEDITED HEARING ORDER


       This case came before the undersigned Workers' Compensation Judge on
September 20, 2017, for an Expedited Hearing. The present focus of this case is whether
Mr. Burnett is entitled to medical and temporary disability benefits for his workplace
injury. The central issue is whether Builders is likely to establish at a hearing on the
merits that Mr. Burnett's willful misconduct or willful violation of a safety rule bars his
claim. For the reasons set forth below, the Court holds Builders is unlikely to meet this
burden and Mr. Burnett is entitled to medical and temporary disability benefits.
                                     History of Claim
        Jay Burnett worked for Builders Transportation as an over-the-road truck driver.
The parties agreed that on February 27, 2017, a load of steel pipes rolled from his flatbed
trailer and crushed him. An ambulance transported Mr. Burnett to the hospital, where he
received inpatient care until April 20, 2017. 1
       Mr. Burnett explained the accident through his affidavit and statement he
introduced into evidence at the hearing. He recounted that he picked up the flatbed trailer

1
  Mr. Burnett was present at the hearing and relied on his affidavit and his signed statement
instead of testifying. The parties stipulated to the admissibility of those documents.
                                               1
loaded with steel pipes in Arkansas the day before the accident. Mr. Burnett inspected the
trailer and the load. He used additional straps and four pipe stakes to secure the load
before he left the yard. Mr. Burnett stopped overnight at a truck stop and drove to the
facility the next morning to deliver the pipes. He heard something move or break as he
began to loosen the wenches and straps around the pipes. The pipes then fell off the
trailer and hit him.
       After its investigation, Builders denied Mr. Burnett's claim on the basis that he
willfully violated a safety rule when he failed to use pipe stakes to secure the pipes on his
flatbed trailer. It argued the violation barred his entitlement to workers' compensation
benefits. Mr. Burnett denied he violated a safety rule and asserted that he used pipe stakes
to secure his load.
       Builders presented testimony from its training supervisor, Robert Hall, and its
safety and risk director, A.J. Sellers. Neither man witnessed the accident.
       Mr. Hall testified that he worked as training supervisor for Builders since 2010.
Although he did not recall specifically training Mr. Burnett, he testified that Builders
taught all of its drivers the company's policies and procedures and gave each a book
containing the federal regulations applicable to truck drivers. He introduced documents
Mr. Burnett signed, which verified his knowledge of Builders' policies and procedures.
Mr. Hall explained Builders' securement policy and presented the "Bundled Pipe Load
Securement" section of the policy manual, which required its drivers to use pipe stakes
when transporting pipe. He testified that pipe stakes keep the pipes in place so that they
do not shift, roll or fall. Mr. Hall did not recall any policy violations or disciplinary
actions against Mr. Burnett.
       Mr. Sellers testified that the morning after the accident, he went to the facility
where the accident occurred. The truck Mr. Burnett drove was not at the accident scene,
and the load of pipes was not on the trailer. Builders moved the truck and trailer to
Builder's yard where Mr. Sellers inspected them. He testified that the trailer was in good
condition. The pipe stakes were stored on the truck and undamaged. Mr. Sellers testified
that he did not think anyone recently used the pipe stakes. During his investigation, Mr.
Sellers did not talk with Mr. Burnett. However, he spoke with the facility personnel, who
were vague and uninformative regarding the incident.
        Mr. Sellers also explained the importance of using pipe stakes correctly to ensure
the pipes did not shift and fall from the trailer. He recalled investigating accidents where
drivers failed to properly secure their loads with pipe stakes. He testified that Builders
disciplined those drivers for their violations. Mr. Sellers also recalled no violations or
disciplinary actions taken against Mr. Burnett. He identified photographs of a tractor-
trailer truck with pipe that had slid off the flatbed trailer. Mr. Sellers did not take the
photographs nor was he present when they were taken. He testified that Mr. Alford at the



                                             2
Alabama facility sent photographs to him. 2 Mr. Sellers confirmed that the First Report of
Injury noted Builders provided the safety equipment used in this matter. Mr. Sellers
testified that he directed completion of the First Report. Builders denied Mr. Burnett's
claim for workers' compensation benefits, alleging that Mr. Burnett violated its safety
rule by failing to use pipe stakes.

                             Findings of Fact and Conclusions of Law
                                            Standard applied
       Mr. Burnett bears the initial burden of proof on the essential elements of his claim.
Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Camp. App. Bd. LEXIS 24, at *6
(Aug. 18, 20 15). Here the parties stipulated that this injury occurred at work.
        Builders bears the burden of proof on the essential elements of its affirmative
defense. It must present sufficient evidence from which this Court might determine it is
likely to prevail on its defense at a hearing on the merits.
                                              The Defense
        The Court turns first to Builders' contention that Mr. Burnett's willful violation of
a safety rule-failure to use pipe stakes-barred his recovery. Builders pointed to
Tennessee Code Annotated section 50-6-110(a)(4), which provides that no compensation
shall be allowed for an injury due to an employee's "willful failure or refusal to use a
safety device." After careful consideration, the Court holds Builders is unlikely to meet
its burden of establishing all elements of this defense at a hearing on the merits.
       The controlling case for this defense is Mitchell v. Fayetteville Pub. Utils., 368
S.W.3d 442 (Tenn. 2012). 3 The Supreme Court in Mitchell held that in order to
successfully defend a workers' compensation claim on the basis of willful misconduct,
willful disobedience of safety rules, or willful failure to use a safety device, the employer
must prove: (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 453.
       Here, the proof shows that Builders trained Mr. Burnett in all areas of its policies
and procedures, which included load securement for transporting and unloading pipes.
Builders provided him with manuals containing rules and regulations related to over-the-
road truck drivers. Mr. Burnett verified receipt of this training and the manuals by signing

2
    Builders did not submit an affidavit of Mr. Alford nor did it call him to testify at the hearing.
3
 The Appeals Board cited Mitchell v. Fayetteville Pub. Utils. as applicable to cases under the
Reform Act of 2013 in Gonzales v. ABC Prof'! Tree Servs., 2014 TN Wrk. Comp. App. Bd.
LEXIS 2 (Nov. 20, 2014).
                                                    3
the documents to which the parties stipulated. Thus, Builders proved actual notice of the
safety rule in question.
       As to the second element of this defense, Mr. Burnett confirmed in his statement,
stipulated to by the parties, that he inspected his load before latching the trailer and
observed it was secured with four straps. After latching the trailer, he added more straps
and four pipe stakes to secure the load. Mr. Burnett showed he appreciated the
importance of the pipe stakes and understood the danger involved if he did not use them.
Although he understood the danger if he had violated the rule, Builders did not prove that
he had.
       Considering the third factor, bona fide enforcement of the rule, Mitchell does not
appear to require perfection. The mere fact that employees sometimes ignore or break
rules does not mandate a finding that an employer failed to enforce those rules. Instead
the inquiry appears to be, at least in part, whether employees are aware of the prohibition
and that violation could result in discipline. See Carten ex rei. Carten v. MBI, No.
W2012-01507-SC-WCM-WC, 2013 Tenn. LEXIS 890, at *15 (Tenn. Workers' Comp.
Panel Nov. 14, 2013). Applying this somewhat more flexible standard, it appears
Builders made genuine efforts to instill safe practices in its employees by training and
providing them literature regarding load securement. The Court notes, however, that Mr.
Hall and Mr. Sellers did not recall ever disciplining Mr. Burnett for violation of its
policies.
       The Court now looks to Roper v. Allegis Grp., 2017 Wrk. Comp. App. Bd. LEXIS
14 (Feb. 10, 2017), for an instructive analysis of the fourth element of this defense.
There, the Appeals Board rejected the employer's argument that an employee who lacked
a valid excuse for not following a safety rule acted willfully. The Board stated this
argument was "an overbroad interpretation of Mitchell that, if accepted, would allow
employers to deny benefits to employees whose mere negligent or reckless actions
resulted in a violation of a known safety rule." !d. at * 11. Instead, the Board noted it is a
conscious action of an employee to violate a rule that constitutes "willfulness," as
opposed to an employee's negligence or recklessness. The Board observed that it is
"longstanding precedent" in Tennessee that "an employee's negligent or reckless actions
generally are not enough to defeat a claim for workers' compensation benefits." !d. Here,
Builders failed to present evidence to overcome Mr. Burnett's assertion that he used the
pipe stakes. Therefore, Builders did not present sufficient evidence from which this Court
might determine it is likely to prevail on this element at a hearing on the merits.
       When applying these concepts to Mr. Burnett's case, the Court finds he did not
"willfully" violate a safety rule or commit "willful" misconduct. In the present case, the
evidence is simply insufficient to show that Mr. Burnett intentionally violated a safety
rule.
      For these reasons, the Court rejects Builders' defense and holds Mr. Burnett has
shown he is likely to prevail at a hearing on the merits regarding his claim for benefits.
                                              4
IT IS, THEREFORE, ORDERED as follows:
  1. Mr. Burnett is entitled to medical and temporary disability benefits. Builders shall
     provide Mr. Burnett with a panel of physicians and medical treatment pursuant to
     Tennessee Code Annotated section 50-6-204.

  2. This matter is set for a Scheduling (Status) Hearing on October 30, at 10:30 a.m.
     Central time. You must call 615-532-9550 or toll-free at 866-943-0014 to
     participate in the Hearing. Failure to call may result in a determination of the
     issues without your 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).
     The Insurer or Self-Insured Employer must submit confirmation of compliance
     with this Order to the Bureau by email to WCCompliance.Program@tn. gov 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. For questions regarding compliance, please
     contact the Workers' Compensation Compliance Unit vta email at
     WCComp liance.Program@tn. gov.



     ENTERED the      19th   day of October, 2017.




                               \..JUDGE
                                    ,~ DEANA C. SEYMOUR.
                                  Court of Workers' Compensation Claims




                                           5
                                      APPENDIX

Exhibits:
   1. Form C-20 Employer's First Report of Work Injury
   2. Signed certification form documenting the completion of training
   3. Signed certification form documenting receipt ofBTC's safety policies and
       procedures for drivers
   4. Signed certification form documenting receipt ofBTC's maintenance policies and
       procedures for drivers
   5. Signed certification form documenting receipt of Federal Regulations
   6. Page 30 ofBTC's Securement Manual2016
   7. Equipment Inventory Sheet dated August 11, 20 16
   8. Signed statement of Mr. Burnett dated May 23, 2017
  9. Physical results dated July 26, 2016
   10. Photographs of alleged accident scene (Collective)
   11. Affidavit of Jay Burnett

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
          2a. Employee's Additional Issues for Inclusion in Dispute Certification Notice
   3. Request for Expedited Hearing and attached affidavit
   4. Employer/Carrier Pre-Hearing Statement
   5. Employer/Carrier Witness and Exhibit Lists
   6. Notice ofFiling Wage Statement
   7. Employer/Carrier Amended Witness and Exhibit Lists




                                           6
                            CERTIFICATE OF SERVICE

        I certify that a true and correct copy of this Expedited Hearing Order was sent to
the following recipients by the following methods on the ~th day of October 20 17.

Name                         Via     Via        Service sent to:
                             Fax    Email
Shannon Toon,                        X          stoon@taxlortoon.com
Employee's Attorney
Michael Jones,                        X         mjones@wimberlylawson.com
Employer's Attorney




                                          Penny S
                                          Court of orkers' Compensation Claims
                                          WC.CourtC ierk@tn. gov




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