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

JACK GLASGOW,                              )   Docket No. 2017-05-0225
         Employee,                         )
v.                                         )   State File No. 3128-2017
31W INSULATION CO. INC.,                   )
         Employer,                         )   Judge Dale Tipps
And                                        )
LIBERTY MUTUAL INS.,                       )
         Insurance Carrier.                )
                                           )

            EXPEDITED HEARING ORDER GRANTING BENEFITS


       This matter came before the undersigned workers’ compensation judge on June
27, 2017, for an Expedited Hearing. The present focus of this case is whether Mr.
Glasgow is entitled to medical benefits and temporary disability benefits for his
workplace injuries. The central legal issue is whether 31W is likely to establish at a
hearing on the merits that Mr. Glasgow’s willful misconduct or willful failure to use a
safety device bars his claim. For the reasons set forth below, the Court holds 31W is
unlikely to meet this burden and Mr. Glasgow is entitled to medical and temporary
disability benefits.

                                   History of Claim

        On January 11, 2017, Mr. Glasgow fell from a height of several feet while
installing insulation at a construction site for 31W. Mr. Glasgow suffered a head injury
and remembered nothing about the incident. However, a coworker, Brian Helton,
testified via deposition that he saw Mr. Glasgow standing on a board in the unfinished
wall between the first and second floor just before the accident occurred. 31W provided
medical treatment and temporary disability benefits for about three weeks before denying
his claim. The company based the denial on its conclusion that the manner in which Mr.
Glasgow installed the insulation violated a known safety rule or constituted willful
misconduct that would bar him from recovering workers’ compensation benefits. To

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determine this issue, the parties presented evidence concerning Mr. Glasgow’s work
history with 31W, 31W’s safety training, and evidence concerning the January 11, 2017
accident.

       Concerning his history with 31W, Mr. Glasgow testified he first worked as an
insulation installer for the company in 2014. During that period of employment, he
suffered a work injury in a fall caused by the collapse of some homemade scaffolding he
constructed. Kerry Johnson, the General Manager of Operations at 31W and Mr.
Glasgow’s supervisor, testified that the injury occurred while he was installing batt
insulation in the top half of a two-story foyer in a house under construction. The proper
procedure would have been to use a stick to place the insulation between the wall studs,
then go back and use a ladder to “dress it up.” Instead, Mr. Glasgow nailed a scrap board
across the span of the foyer. This would have allowed him to walk across the board
instead of having to use a ladder. When he stepped on the board, the nails pulled loose,
and Mr. Glasgow fell. Mr. Johnson testified that he had several discussions with Mr.
Glasgow following the accident about what he did wrong and how the job should be
performed.

        Mr. Glasgow stopped working for 31W sometime after the scaffolding accident.
He later reapplied for a job with 31W, which rehired him in October 2016. Mr. Johnson
testified that he rehired Mr. Glasgow out of friendship because he liked him and “knew
he was down on his luck.” He expressed concern about Mr. Glasgow’s history of
carelessness and discussed with Mr. Glasgow the importance of following proper
procedure and safety protocols. Mr. Glasgow promised he would not take any
unnecessary chances.

        Mr. Glasgow admitted he signed Safety Handbook acknowledgement forms both
times he applied at 31W but denied ever actually receiving or reviewing the handbook.
Instead, he claimed 31W personnel just told him to sign the forms. He also denied his
supervisors ever instructed him to use a ladder for heights or required him to use a
hardhat in residential jobs. Rather, Mr. Johnson told him many times, “I don’t care how
it’s gotta be done, just get it done and get the contractor off my back.”

       After the January 11 accident, Mr. Johnson conducted an investigation of the
scene and spoke to Mr. Glasgow’s coworker at the job site. He concluded that when Mr.
Glasgow fell, he was standing on the top plate of the first-floor wall framing, holding
onto a wall stud with one hand and using his other hand to place insulation batts above
him between the second-floor studs. Mr. Johnson said this was unsafe and was
“absolutely not” the way his workers were supposed to install insulation. He stated Mr.
Glasgow’s actions violated 31W’s safety protocol – first by putting himself in harm’s
way and also by failing to use a ladder or wear a helmet, both of which 31W provided.
Mr. Glasgow later apologized to Mr. Johnson for the accident and admitted he knew he
should not have been on the wall.

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       Mr. Johnson described 31W’s safety program. He said it held monthly (or
sometimes more frequent) safety meetings attended by every employee, covering topics
such as fall protection and ladder safety. He and other supervisors also made spot
inspections to make sure employees were complying with safety rules. When asked
about the Safety Handbook, Mr. Johnson said copies were located at the front counter of
the shop. Normally, when an applicant gets to the acknowledgement forms in the
application process, they ask to review the handbook. While the handbook describes
various levels of discipline for safety violations, supervisors have discretion about
whether to take disciplinary action, as well as what kind of action. Mr. Johnson has
disciplined workers for safety violations in the past – four times in four years – but 31W
has never disciplined Mr. Glasgow.

       Larry Moore, 31W’s Assistant Manager, confirmed Mr. Glasgow’s attendance at
the company’s safety meetings. He provided a slightly different description about the
application process, testifying that applicants received the Safety Handbook along with
their application. Concerning the accident itself, Mr. Moore also stated that Mr.
Glasgow’s actions were very unsafe and he has never seen anyone else attempt to install
insulation in that manner.

        Mr. Helton also agreed that the proper method for installing insulation in that
situation would have been to use a ladder. However, he admitted that he had performed
similar maneuvers in the past. He also confirmed that a supervisor would come to the
jobsite about once a week.

                       Findings of Fact and Conclusions of Law

       The following legal principles govern this case. Because this case is in a posture
of an Expedited Hearing, Mr. Glasgow need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief. Instead, he must come forward
with sufficient evidence from which this Court might determine she is likely to prevail at
a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2016); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015).

                                     Compensability

       The Court first notes that 31W presented no testimony or other proof to contradict
Mr. Glasgow’s claim that he suffered a fall at work on January 11, 2017. Thus, there is
no dispute that Mr. Glasgow established a specific incident, identifiable by time and
place of occurrence. Further, it appears to be undisputed that his work was the primary
cause of that incident. The Court therefore holds that Mr. Glasgow is likely to meet his
burden of proving he suffered a compensable injury at a hearing on the merits. See Tenn.

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Code Ann. § 50-6-102(14) (2016).

       Despite sufficient proof of a compensable injury, 31W contended that two
statutory provisions bar Mr. Glasgow’s claim. Tennessee Code Annotated section 50-6-
110(a)(1) provides that no compensation shall be allowed for an injury due to an
employee’s willful misconduct. Section 50-6-110(a)(4) bars claims due to an employee’s
“willful failure or refusal to use a safety device.” After careful consideration, the Court
holds 31W is unlikely to meet its burden of establishing all the elements of these defenses
at a hearing on the merits.

        The controlling case for this defense is Mitchell v. Fayetteville Public Utilities,
368 S.W.3d 442 (Tenn. 2012), which the Appeals Board cited as applicable to cases
under the Reform Act of 2013 in Gonzales v. ABC Professional Tree Services, 2014 TN
Wrk. Comp. App. Bd. LEXIS 2 (Nov. 10, 2014). 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. Mitchell, 368 S.W.3d at 453.1

       Regarding his actual notice of the safety rule, Mr. Glasgow suggested that the
Safety Handbook did not identify ladders as safety equipment and contained no specific
instructions or requirements as to when workers were required to use a ladder. A review
of the Safety Handbook indicates Mr. Glasgow is correct. However, the Court agrees
with 31W – an employer cannot anticipate every possible situation or unsafe decision by
a worker, and it would be unreasonable to impose a duty to do so on the employer. This
is especially true in a case such as this one, where an employee does something so
patently unsafe as to violate the general admonishment of the Safety Handbook to
“undertake all possible efforts to prevent exposing themselves or others to hazards.”

       Regarding Mr. Glasgow’s claims that he never reviewed the Safety Handbook, the
Court finds that testimony to be unpersuasive.2 Further, Mr. Johnson testified credibly
that he met with Mr. Glasgow and gave him specific and personal counseling about the
necessity of using a ladder following his first accident, as well as when he was rehired.

1
  31W argued that willful misconduct and willful failure to use a safety device are two distinct defenses; therefore,
the factors set out in Mitchell only apply to failure to use a safety device. 31W contended that the old legal standard
for willful misconduct still applies – that is, “an intention to do the act, purposeful violation of orders, and an
element of perverseness.” This argument is unpersuasive in light of the Mitchell court’s statement: “Because
Larson’s four-step test establishes straightforward guidelines for evaluating claims of willful misconduct and the
willful failure or refusal to use a safety appliance, we choose to adopt the standard for this and future cases involving
these statutory defenses.” Id. (Emphasis added.)
2
  Mr. Glasgow was evasive and argumentative through most of his examination. As a result, the Court found that
much of his testimony was not credible.

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Consequently, the Court finds that Mr. Glasgow had actual notice of a rule prohibiting
the kind of unsafe behavior that caused his injuries and thus satisfies the first criteria of
Mitchell.

        Mr. Glasgow could not recall the accident and refused to admit that the actions
described by Mr. Helton were dangerous. However, the Court finds that he must have
understood the danger involved in violating the rule. This is especially true in light of the
fact that his prior injury occurred in a very similar manner – because of his failure to use
a ladder to install insulation at a height. Due to Mr. Glasgow’s lack of memory, he was
unable to offer any excuse for his failure to abide by 31W’s safety rules. Consequently,
this case meets both the second and the fourth criteria of Mitchell.

        Regarding 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 rel. Carten v. MBI, 2013
Tenn. LEXIS 890 (Tenn. Workers’ Comp. Panel Nov. 14, 2013). Applying this
somewhat more flexible standard, it appears 31W made genuine efforts to instill safe
practices in its employees and made random visits to the jobsites to confirm compliance.
Further, Mr. Johnson testified he had disciplined four workers over the past four years.
However, 31W’s willful misconduct defense appears likely to fail under the specific facts
of this case.

        During his first period of employment, Mr. Glasgow suffered a workplace injury,
the cause of which was his violation of the safety rules in a manner very similar to this
case. In spite of this serious breach of company policy, Mr. Johnson testified that 31W
never disciplined Mr. Glasgow and, in fact, later rehired him. This raises the question of
whether 31W’s actions could constitute assent to this type of behavior. An employee in
Mr. Glasgow’s situation might reasonably assume his employer was not serious about its
safety rules and that there would be no consequences for ignoring them. At the very
least, 31W’s failure to enforce its rule on the occasion of Mr. Glasgow’s first work injury
caused by a patently unsafe act precludes a finding of a consistent, bona fide enforcement
of the rule in question. Thus, 31W fails to meet the third criterion of Mitchell. The Court
cannot hold that 31W would likely to prevail on its misconduct defenses at a hearing on
the merits.

                                     Medical Benefits

      Having found Mr. Glasgow is likely to prevail at a hearing on the merits, the Court
must address his request for medical benefits. Under the Workers’ Compensation Law,
“the employer or the employer’s agent shall furnish, free of charge to the employee, such
medical and surgical treatment . . . made reasonably necessary by accident[.]” Tenn.

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Code Ann. § 50-6-204(a)(1)(A). Employers are also required to offer a panel of
physicians “from which the injured employee shall select one (1) to be the treating
physician.” See Tenn. Code Ann. § 50-6-204(a)(3)(A)(i). Therefore, 31W must provide
reasonable and necessary medical treatment to Mr. Glasgow and must provide him with a
panel of physicians from which he may choose his treating physician.

                              Temporary Disability Benefits

       Mr. Glasgow also seeks payment of temporary disability benefits. An injured
worker is eligible for temporary total disability (TTD) benefits if: (1) the worker became
disabled from working due to a compensable injury; (2) there is a causal connection
between the injury and the inability to work; and (3) the worker established the duration
of the period of disability. Jones v. Crencor Leasing and Sales, TN Wrk. Comp. App.
Bd. LEXIS 48, at *7 (Dec. 11, 2015). The only record of a medical professional taking
Mr. Glasgow off work came from Nurse Practitioner, Rachel Wise, at Vanderbilt Medical
Center. Her January 20, 2017 return-to-work note stated, “Patient will be out of work
from 01/11/2017 until 2/03/2017.” Although Mr. Glasgow may eventually be able to
establish other periods of disability, at this time the Court can only find he appears likely
to prove he is entitled to TTD benefits for the period of January 11, 2017, through
February 3, 2017, at the stipulated compensation rate of $450.15.

IT IS, THEREFORE, ORDERED as follows:

   1. 31W shall provide Mr. Glasgow with a panel of physicians and medical treatment
      made reasonably necessary by his January 11, 2017 injury in accordance with
      Tennessee Code Annotated section 50-6-204.

   2. 31W shall pay Mr. Glasgow temporary total disability benefits in the amount of
      $1,543.37 for the period of January 11, 2017, through February 3, 2017.

   3. This matter is set for a Scheduling Hearing on August 29, 2017, at 9:00 a.m. You
      must call 615-741-2112 or toll free at 855-874-0473 to participate. Failure to call
      in may result in a determination of the issues without your further
      participation. All conferences are set using Central Time (CT).

   4. 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 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.

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5. For questions regarding compliance, please contact the Workers’ Compensation
   Compliance Unit via email at WCCompliance.Program@tn.gov.

   ENTERED this the 6th day of July, 2017.


                            _____________________________________
                            Judge Dale Tipps
                            Court of Workers’ Compensation Claims




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                                               APPENDIX

Exhibits:
   1. Transcript of deposition of Brian Helton
   2. Safety Handbook
   3. Stipulated medical records
   4. Affidavit of Jack Glasgow
   5. Wage Statement
   6. 2014 Safety Handbook Acknowledgement
   7. 2016 Safety Handbook Acknowledgement
   8. Photograph of accident scene
   9. Collective photographs of accident scene
   10. Photograph of proper installation technique

Technical record:3
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




3
   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.



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                              CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order
 Granting Benefits was sent to the following recipients by the following methods of
 service on this the 6th day of July, 2017.

Name              Certified       Via           Email Address
                  Mail            Email
Andrea Meloff                     x             ameloff@ddzlaw.com

Owen Lipscomb                     x             Owen.lipscomb@libertymutual.com




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




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