                                                                                        FILED
                                                                                      Nov 22, 2019
                                                                                     02:56 PM(CT)
                                                                                  TENNESSEE COURT OF
                                                                                 WORKERS' COMPENSATION
                                                                                        CLAIMS




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

RONDA A. CAMPBELL,                             ) Docket No. 2019-05-0540
          Employee,                            )
v.                                             )
MARTEN TRANSPORT, LLC,                         ) State File No. 32087-2019
          Employer,                            )
And                                            )
AGRI GENERAL INS. CO.,                         ) Judge Dale Tipps
          Insurance Carrier.                   )


      EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS


        This case came before the Court on November 14, 2019, for an Expedited Hearing
on whether Ms. Campbell is entitled to benefits. To receive these benefits, Ms. Campbell
must show that she is likely to establish at a hearing on the merits that her injuries arose
primarily out of and in the course and scope of her employment. For the reasons below,
the Court holds Ms. Campbell failed to meet this burden because her injury occurred
during a deviation from her employment. Therefore, the Court holds that she is not
entitled to benefits at this time.

                                      History of Claim

       Ms. Campbell works as a truck driver for Marten Transport, a company that
provides trucking services for Walmart in Tennessee. She testified that she drove a
regular route from the Walmart distribution center in Shelbyville to a store near Dayton,
with several deliveries along the way.

      On the morning of April 23, 2019, Ms. Campbell had completed her deliveries and
was returning to Shelbyville, when she decided to stop at the At Home store in
Chattanooga to buy a gift for her mother.1 The store was closed when she arrived, so she
parked her truck and went into her sleeper compartment to rest until the store opened.

1
 Ms. Campbell contended that she had permission from her dispatcher to make this stop, but Marten
denied that she asked for or received permission.
                                               1
While Ms. Campbell slept, a tow-truck operator hooked onto the cab of her truck and
raised the front of it off the ground.2 He then pounded on the door to wake her up. Ms.
Campbell was still groggy when she opened the door and did not realize the cab had been
elevated. As a result, she fell to the ground and injured her head, shoulder, and left wrist.

       Ms. Campbell made her purchase, drove the truck back to Shelbyville, and
reported the accident to Michael Ternberg, Marten’s workers’ compensation claim
representative. He instructed Ms. Campbell to go to a walk-in clinic. Four clinics
refused to treat her, so she went to the emergency room where she discovered she had
broken her wrist. Ms. Campbell began treating with Dr. Brian Peterson, an orthopedic
specialist. That treatment was unauthorized, however, and Marten denied her claim on
May 2.

       On cross-examination, Ms. Campbell admitted Marten required her to follow a
specific route from Dayton to Shelbyville. She agreed that Exhibit 12 was a map that
accurately depicted her prescribed return route.

       Mr. Ternberg testified he denied Ms. Campbell’s claim because she deviated from
her job duties to perform a personal errand.3

       Ms. Campbell requested that the Court order Marten to pay her medical expenses
and to reimburse her for the bills she paid personally. She also requested temporary
disability benefits.

       Marten contended that Ms. Campbell was not entitled to benefits because: 1) the
Court lacks jurisdiction; 2) she knowingly and voluntarily sought or accepted benefits in
another state; and, 3) her injury did not arise primarily out of and in the course and scope
of her employment because she deviated from her route. Marten asked the Court to deny
her request.

                            Findings of Fact and Conclusions of Law

      Ms. Campbell must provide 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) (2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

2
    The parking lot was posted, “No Truck Parking.”
3
 Both parties introduced a great deal of evidence about Qualcom – the electronic communications system
by which Marten communicates with its drivers and tracks their movements. Similarly, the Court heard
evidence about whether Ms. Campbell was legally parked at the time of the accident and whether she
complied with Marten’s safety policies in the way she exited her truck. Because the Court finds Ms.
Campbell distinctly departed from her work duties, it need not summarize this testimony.
                                                      2
                                       Forum-Selection Clause

       Marten first contended that the Court has no jurisdiction because Ms. Campbell
consented to the exclusive jurisdiction of Wisconsin workers’ compensation law as a
condition precedent to her employment. It argued this constitutes a reasonable forum-
selection clause and that these clauses are generally enforceable in Tennessee. The Court
disagrees and finds that, as a matter of law, the alleged forum-selection clause is invalid.4

       Tennessee Code Annotated section 50-6-114(a) provides: “No contract or
agreement, written or implied, or rule, regulation or other device, shall in any manner
operate to relieve any employer, in whole or in part, of any obligation created by this
chapter[.]” Ms. Campbell and Marten meet the statutory definitions of employee and
employer in Tennessee Code Annotated section 50-6-102, and Ms. Campbell alleged she
suffered injuries in Tennessee while performing her employment duties for Marten.
These facts entitle her to seek benefits under the Tennessee Workers’ Compensation
Law. To the extent Marten’s forum-selection clause purports to relieve Marten of the
obligation to provide Tennessee workers’ compensation benefits, it is void. See Fred
Travis v Carter Express, 2018 TN Wrk. Comp. App. Bd. LEXIS 67, at 17-18 (Dec. 21,
2018) (prospective forum-selection clauses are void as against public policy and are
invalid under section 50-6-114(a)).

                                         Election of Remedies

       An employee can waive her right to pursue workers’ compensation benefits under
Tennessee law where the employee elects to pursue benefits under the laws of another
state. To make this election, the employee must have: “(a) affirmatively acted to obtain
benefits in another state; or (b) knowingly and voluntarily accepted benefits under the
law of another state.” However, the “mere acceptance of benefits” under the laws of
another state, without proof that it was a knowing and voluntary acceptance, is
insufficient to show a binding election of remedies. Goodwin v. Morristown Driver’s
Servs., Inc., 2019 TN Wrk. Comp. App. Bd. LEXIS 37, at *9 (July 31, 2019).

       In this case, no proof demonstrates that Ms. Campbell affirmatively acted to obtain
benefits in Wisconsin. To the contrary, Mr. Ternberg testified that he alone made the
decision to deny Ms. Campbell’s claim and that no Wisconsin state agency or court was
involved. Thus, Ms. Campbell did not waive her right to Tennessee Workers’
Compensation benefits under the first part of the election analysis.

        Regarding the second part, Marten contends that Ms. Campbell admitted she

4
 It is unclear whether the provision at issue is a forum-selection clause or if it is really a choice of law
provision. The Court finds it need not make this determination, as either type of agreement is void.
                                                     3
knowingly and voluntarily accepted benefits under the law of another state. It relies on
Ms. Campbell’s recorded statement, where she agreed with Mr. Ternberg’s question, “Do
you understand this claim is being handled under the state of Wisconsin Workers’
Compensation Act and in the state of Wisconsin?” Marten also notes that Ms.
Campbell’s Petition for Benefit Determination states “Claim denied on 2 May 2019 via
phone call from Mike Ternberg. Want to appeal decision / file new claim in TN where I
work/live.”

       A threshold problem with Marten’s argument is that it requires Ms. Campbell to
accept benefits. This she could not do, as Marten denied her claim without ever
providing any medical treatment or temporary disability benefits.

       More importantly, an employee who receives voluntarily-paid benefits does not
make a binding election “if benefits were received and accepted by the employee without
knowledge on his part that he could have made a claim in Tennessee, or without the
degree of knowledge which is required in order for a binding election to be made.” Hale
v. Commercial Union Assurance Cos., 637 S.W.2d 865, 869-870 (Tenn. 1982). No
evidence suggests that Ms. Campbell knew she could make a claim in Tennessee until
she did so. Nor does any proof indicate that she had the degree of knowledge required to
make a knowing, intentional election. Instead, Marten simply informed her (incorrectly)
that her claim was being handled under Wisconsin law. The Court finds this practice
both questionable and inadequate to constitute an election of remedies.

                                            Compensability

       To prove a compensable injury, Ms. Campbell must show that her alleged injury
arose primarily out of and in the course and scope of her employment. Marten did not
dispute that Ms. Campbell injured herself while exiting her truck. However, it contended
that she was not in the course and scope of her employment at the time.

       A traveling employee is generally considered to be in the course of employment
continuously during the duration of the entire trip, except when there is a distinct
departure on a personal errand. McCann v. Hatchett, 19 S.W.3d 218, 221 (Tenn. 2000).
The parties agree that Ms. Campbell was a traveling employee. The question, therefore,
is whether her trip to At Home constituted a distinct departure on a personal errand. The
Court finds that it did.

      The Court recognizes that the physical deviation from her route was not
geographically significant (approximately five miles), but it was a distinct departure.5

5
  Ms. Campbell disagreed that she deviated as much as five miles from her route, arguing that the parking
lot was actually right next to I-24. She is correct about the location of the parking lot, but according to
the map showing her route, she was not yet supposed to be on I-24.
                                                    4
Further, the nature of the deviation seems more important than the distance traveled.

       Ms. Campbell correctly argued that some acts of comfort and convenience, such as
bathroom breaks or meal stops, are incidental to the employment. These contribute to the
furtherance of an employer’s interest, and injuries that occur during such stops are
deemed to have arisen out of the employment. See McCormick v. Aabakus, Inc., 101
S.W.3d 60, 63 (Tenn. Workers’ Comp. Panel Oct. 5, 2000). However, she admitted that
the sole reason for this stop was to purchase a gift, not for food, fuel, or a bathroom
break. Ms. Campbell’s decision to leave her route and park her truck was based on
purely personal considerations. This differs fundamentally from a comfort stop, in that it
provided no benefit to Marten. Therefore, it represents a distinct departure on a personal
errand.

        Ms. Campbell contended that she had Marten’s permission to make the stop. Even
if this were true, the Court is unaware of any authority that granting permission for a
departure changes the analysis set out in McCann. Instead, it seems the focus should
remain on the question of whether Ms. Campbell’s deviation from her route provided any
benefit to Marten. Absent any proof of a benefit, the Court cannot find at this time that
she is likely to prevail on proving that her injury arose out of the course and scope of her
employment.

   IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Campbell’s claims against Marten Transport for the requested medical and
      temporary disability benefits are denied at this time.

   2. This case is set for a Scheduling Hearing on January 29, 2020, at 9:00 a.m. You
      must call toll-free at 855-874-0473 to participate. Failure to call might result in a
      determination of the issues without your further participation. All conferences are
      set using Central Time.

       ENTERED November 22, 2019.



                                   _____________________________________
                                   Judge Dale Tipps
                                   Court of Workers’ Compensation Claims




                                             5
                                     APPENDIX

Exhibits:
   1. Affidavit of Ronda Campbell
   2. Records from Tennova Healthcare
   3. Records from Tennova Ortho
   4. Wage statement
   5. August 23, 2019 payroll printout
   6. View Load document
   7. Tennova accounts receivable printout (Identification Only)
   8. Medical payment receipts and summaries (Identification Only)
   9. Satellite photo of At Home parking lot
   10. Petition for Benefit Determination
   11. Driver Log
   12. Google map printout of return route
   13. Google map printout of return route and detour to At Home
   14. Invoice from Mostler’s Towing
   15. Investigation notes
   16. Transcript of Ronda Campbell’s recorded statement
   17. Qualcom printout

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




                                           6
                            CERTIFICATE OF SERVICE

     I certify that a copy of the Expedited Hearing Order was sent as indicated on
November 22, 2019.

Name                          Certified    Email    Service sent to:
                               Mail
Ronda Campbell,                                 X   Fields1961@yahoo.com
Self-represented Employee
Robin Rasmussen,                                X   rrasmussen@drmlawmemphis.com
Employer Attorney



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




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