                                                                                 FILED
                                                                               Dec 10, 2018
                                                                              09:30 AM(CT)
                                                                                TENNESSEE
                                                                           WORKERS' COMPENSATION
                                                                              APPEALS BOARD

            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Michael Womble                              ) Docket No. 2018-08-0022
                                            )
v.                                          ) State File No. 29188-2017
                                            )
Uncle Dave’s Auto Repair, Inc., et al.      )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Deana C. Seymour, Judge                     )

                 Affirmed and Remanded—Filed December 10, 2018

The employee, a tow truck driver, suffered injuries while loading a disabled vehicle for
towing. The employer accepted the claim as compensable and provided workers’
compensation benefits. Subsequently, the employee was terminated as a result of
negative publicity related to the manner in which he handled another towing job. He was
placed at maximum medical improvement and moved to Texas for reasons unrelated to
his employment. He continued to experience problems related to his work injury, and a
physician in Texas authorized by the employer to provide treatment opined the employee
was not at maximum medical improvement, needed additional medical care, and was
subject to work restrictions. The employee requested temporary disability benefits,
which the employer refused to pay, relying on its termination of the employee. The trial
court concluded the employee had not violated a workplace policy with respect to his
handling of the towing job and was entitled to temporary partial disability benefits. The
employer has appealed. We find the evidence preponderates against the trial court’s
determination that the employee did not violate a workplace policy regarding transporting
stranded customers. However, because this error was harmless, we affirm the court’s
decision and remand the case.

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

Jared S. Renfroe, Memphis, Tennessee, for the employer-appellant, Uncle Dave’s Auto
Repair, Inc.

David Gordon, Memphis, Tennessee, for the employee-appellee, Michael Womble


                                           1
                         Factual and Procedural Background

       Michael Womble (“Employee”) was employed by Uncle Dave’s Auto Repair, Inc.
(“Employer”), as a tow truck driver when he was injured on April 16, 2017. He was
hooking up a vehicle to be towed and kicked a tire with his foot and, when he did so, he
injured his left knee. Employer provided authorized medical care with Dr. Tyler Cannon,
who assigned work restrictions. Employer accommodated the restrictions by providing
Employee dispatch work, although he worked fewer hours and at a lower wage. Due to
an error by Employer’s insurer, Employee received temporary total disability benefits in
addition to wages during the time he performed this work.

       On June 19, 2017, Dr. Cannon returned Employee to work without restrictions at
Employee’s request, as Employee believed his knee had healed sufficiently to allow him
to perform his duties. Thereafter, Employee responded to a call to tow a disabled vehicle.
His wife was riding with him, and there was not enough room in the cab of the tow truck
for him, his wife, and the two stranded customers. Employee gave the customers a
number of options: they could call an Uber; one customer could ride in the cab of the tow
truck and the other could ride in the disabled vehicle on the back of the tow truck or
walk; or they could both ride in the disabled vehicle on the back of the truck. They
elected the third option and videoed the ride to the location where the vehicle was taken.
The customers posted the video online, and it was shown on a local television station.

       Employer’s owner, David Steward, was unhappy with the negative publicity
garnered by the news story and terminated Employee. Both Employee and Mr. Steward
agreed there was no written policy regarding customers riding in a vehicle being towed
and agreed that permitting customers to do so was not illegal. However, they also agreed
that Employer had an unwritten policy instructing tow truck drivers to give preference to
customers who wanted to ride in the cab of the tow truck. According to Mr. Steward, the
appropriate action for Employee would have been to leave his wife at a safe location
while he was completing his call. This portion of Mr. Steward’s testimony was
undisputed, and Employee acknowledged he was aware of Employer’s expectation that
customers would be allowed to ride in the cab of the tow truck.

        Employee was placed at maximum medical improvement with no work
restrictions on July 18, 2017. The following day, he moved to Texas for reasons
unrelated to his employment. After reporting ongoing knee problems, Employer
provided an authorized physician, Dr. Martin Van Hal, in Texas. Although Employee’s
Petition for Benefit Determination requested additional medical care recommended by
that physician, the parties resolved those issues. However, Dr. Van Hal opined Employee
had been placed at maximum medical improvement too soon and assigned work
restrictions.



                                            2
       Employee requested temporary disability benefits consistent with Dr. Van Hal’s
opinion. Employer argued that it had terminated Employee for cause and could have
accommodated his work restrictions but for the termination and, therefore, it was not
obligated to pay the requested benefits. Employer also argued that, irrespective of the
termination, Employee voluntarily moved to Texas for reasons unrelated to the
employment and that it could have accommodated the restrictions assigned by Dr. Van
Hal.

     The trial court concluded that Employer did not have rules or expectations that
Employee violated, that Employee’s conduct did not justify termination, and that
Employee was entitled to temporary partial disability benefits. Employer has appealed.

                                  Standard of Review

       The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2018). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2018).

                                        Analysis

       Employer raises three issues on appeal: (1) whether the trial court erred in finding
Employer did not have established rules or expectations that Employee violated; (2)
whether the trial court erred in finding Employee’s conduct did not justify termination;
and (3) whether the trial court erred in awarding Employee temporary disability benefits.

       An injured worker may be entitled to temporary partial disability benefits when
the temporary disability resulting from a work-related injury is not total. See Tenn. Code
Ann. § 50-6-207(1)-(2) (2018). Specifically, “temporary partial disability refers to the
time, if any, during which the injured employee is able to resume some gainful
employment but has not reached maximum recovery.” Hackney v. Integrity Staffing

                                            3
Solutions, Inc., No. 2016-01-0091, 2016 TN Wrk. Comp. App. Bd. LEXIS 29, at *11
(Tenn. Workers’ Comp. App. Bd. July 22, 2016).

       However, although an employee has a work-related injury for which temporary
benefits are payable, an employer remains entitled to enforce workplace rules. Barrett v.
Lithko Contracting, Inc., Nos. 2015-06-0186, 2015-06-0188, 2015-06-0189, 2016 TN
Wrk. Comp. App. Bd. LEXIS 70, at *9 (Tenn. Workers’ Comp. App. Bd. June 17, 2016).
Thus, an employee’s termination due to a violation of a workplace rule may relieve the
employer of its obligation to pay temporary disability benefits if the termination was
related to the workplace violation. Shepherd v. Haren Constr. Co., Inc., No. 2015-01-
0325, 2016 TN Work. Comp. App. Bd. LEXIS 15, at *14 (Tenn. Workers’ Comp. App.
Bd. Mar. 30, 2016). When addressing such circumstances, courts must “consider the
employer’s need to enforce workplace rules and the reasonableness of the contested
rules.” Id. (citation omitted).

      The trial court concluded that, because Employer had no written policy regarding
where customers must ride and whether a driver can require them to ride in the vehicle
being towed, Employer had not established a workplace rule such that Employee’s
termination was justified. However, both Mr. Steward and Employee testified that
paying customers were to be given priority to ride inside the tow truck. Moreover,
Employee has pointed to no authority, and we are aware of none, that requires a
workplace rule be written before Employer is entitled to enforce it. Thus, the trial court’s
conclusion that there was no such policy was error.

        Although the trial court erred in finding no policy existed regarding transporting
stranded customers, the error was harmless because Employer did not establish that the
violation of the policy resulted in Employee’s termination. Mr. Steward’s testimony was
clear that the negative publicity resulting from the video taken by the stranded customers
was his primary motivation for terminating Employee. Indeed, there is no evidence that
Employee’s violation of Employer’s policy played any role in the termination. Had the
incident in question not resulted in negative publicity for Employer, there is insufficient
evidence to allow us to conclude Employee would have been disciplined at all, much less
terminated.

       Employer also argues that Employee moved to Texas voluntarily for reasons
unrelated to his employment. While that is true, it is also true that he had already been
terminated by Employer, and whether Employee would have moved had he remained
employed is unknown. While Employer could have accommodated the restrictions
assigned by the authorized physician but for the termination, it lost the opportunity to do
so when it terminated Employee for a reason other than any alleged misconduct. Thus,
we affirm the trial court’s conclusion that Employer is obligated to pay temporary partial
disability benefits.


                                             4
                                      Conclusion

       For the foregoing reasons, we hold that the trial court’s conclusion that Employer
did not have a workplace policy or expectation regarding transporting customers was
harmless error, as there is insufficient evidence Employer terminated Employee for
violating a workplace policy. The evidence does not preponderate against the trial
court’s finding that Employee is entitled to temporary partial disability benefits.
Accordingly, the trial court’s decision is affirmed, and the case is remanded.




                                           5
                      TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                        WORKERS’ COMPENSATION APPEALS BOARD

Michael Womble                                             )     Docket No. 2018-08-0022
                                                           )
v.                                                         )     State File No. 29188-2017
                                                           )
Uncle Dave’s Auto Repair, Inc., et al.                     )
                                                           )
                                                           )
Appeal from the Court of Workers’                          )
Compensation Claims                                        )
Deana C. Seymour, Judge                                    )

                                    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 10th day of December, 2018.

 Name                           Certified   First Class   Via   Fax      Via     Sent to:
                                Mail        Mail          Fax   Number   Email

 David Gordon                                                             X      davidg@davidgordonlaw.com;
                                                                                 rachelbass@davidgordonlaw.com
 Jared S. Renfroe                                                         X      jrenfroe@spicerfirm.com
 Deana C. Seymour, Judge                                                  X      Via Electronic Mail
 Kenneth M. Switzer, Judge                                                X      Via Electronic Mail
 Penny Shrum, Clerk, Court of                                             X      Penny.Patterson-Shrum@tn.gov
 Workers’ Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov
