            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Buster Barrett                                )   Docket Nos.         2015-06-0186
                                              )                       2015-06-0188
v.                                            )                       2015-06-0189
                                              )
Lithko Contracting, Inc., et al.              )   State File Nos.     78378-2014
                                              )                       24788-2015
                                              )                       24789-2015
Appeal from the Court of Workers’             )
Compensation Claims                           )
Joshua D. Baker, Judge                        )


                     Affirmed and Remanded - Filed June 17, 2016


The employee, a concrete finisher with supervisory responsibilities, suffered injuries to
his shoulder, hip, and back as a result of an incident involving a pressurized hose used to
pour concrete. He was subsequently terminated for safety and quality concerns unrelated
to the incident for which he seeks benefits. Following an expedited hearing, the trial
court awarded medical benefits and denied temporary disability benefits based on a
finding that the employee was terminated for cause. The employee has appealed the
denial of temporary disability benefits. The sole issue on appeal is whether the evidence
preponderates against the trial court’s conclusion that the employee did not present
sufficient evidence at the expedited hearing to show he is likely to prevail at a hearing on
the merits regarding the basis for his termination and, therefore, was not entitled to
temporary disability benefits. We affirm the trial court’s decision and remand the case.

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

Jill Draughon, Nashville, Tennessee, for the employee-appellant, Buster Barrett

John Barringer, Nashville, Tennessee, for the employer-appellee, Lithko Contracting,
Inc., and Ace American Insurance/Gallagher Bassett Services, Inc.

Wm. Ritchie Pigue, Nashville, Tennessee, for the employer-appellee, Lithko Contracting,
Inc., and Travelers Insurance Company


                                             1
                             Factual and Procedural Background

        Buster Barrett (“Employee”), a resident of Robertson County, Tennessee, suffered
injuries to his back, hip, and shoulder on August 27, 2014, while employed by Lithko
Contracting, Inc. (“Employer”). On that date, Employee was supervising a crew of
workers pouring concrete when the worker operating the hose dispensing wet concrete
was splashed in the face and got concrete in his eyes. The worker dropped the hose and
Employee grabbed it to prevent it from hitting him and possibly damaging equipment. At
that point, the pump directing the flow of the concrete caused the hose, which weighed at
least twenty-five pounds, to jerk and Employee to twist, resulting in his injuries.

        Employee did not seek medical treatment and continued to work. Several months
later, on January 15, 2015, Employee stepped in an “isolation hole” and aggravated the
symptoms in his back.1 He suffered an additional increase in symptoms on January 21,
2015, when he stepped in a tire rut while walking at a jobsite. He did not request medical
treatment after these incidents, and his testimony at the expedited hearing reflects that he
believed he could continue working in the supervisory role he had been performing.
However, the pain became severe enough that on February 4, 2015, he could no longer
delay seeking medical treatment and eventually went to see his treating physician for a
separate work-related neck injury. Employee was terminated on February 9, 2015 for
safety and quality issues in connection with his supervisory responsibilities.

        On September 1, 2014, Employer’s workers’ compensation insurance carrier
changed from Ace American Insurance, administered by Gallagher Bassett Services, Inc.,
to Travelers Insurance Company. While the parties did not dispute that Employee
suffered compensable injuries, the insurance carriers disputed the correct date of injury,
resulting in neither carrier providing benefits.

        At the expedited hearing, Employer presented the testimony of three witnesses
regarding its decision to terminate Employee. These included William Phelps,
Employee’s supervisor and the operations manager for the Nashville area; Philip
Maciula, the manager in charge of safety; and Christopher Dittman, the manager of
Employer’s Nashville division. These witnesses testified that Employee was in a
supervisory position over workers who failed to use proper safety equipment at a jobsite
on January 5 and January 20, 2015, resulting in safety violations. While acknowledging
that Employee had not received any written disciplinary actions in the past, they asserted
Employee had failed to conduct required daily planning and safety meetings and had
failed to properly supervise the employees who violated safety rules.



1
 It appears from the record that an “isolation hole” is an area around a column or vertical support into
which concrete is poured separately from the rest of the floor.
                                                   2
        Employer’s witnesses also testified regarding various quality concerns related to
several projects under Employee’s supervision. As a result of poor quality, Employer
had to redo and/or repair certain aspects of the work, thereby suffering monetary losses
associated with substandard work. Employer’s witnesses testified that, despite having
had no quality or safety complaints regarding Employee prior to the incidents described
at the expedited hearing, the problems with his job performance in 2014 and 2015 made it
difficult for Employer to rely on him to supervise and complete projects consistent with
the company’s expectations. Thus, his employment was terminated.

        Employee offered a different perspective on the reason for his termination,
observing that in the nearly twenty years he worked for Employer, he had not been
disciplined for safety or quality issues. According to Employee, it was only after he
reported the August 27, 2014 work injury that Employer began to find fault with his job
performance. With respect to the individual instances of safety violations described by
Employer at the hearing, Employee denied fault in each. Regarding the January 5, 2015
safety violation, Employee testified that he was not the only supervisor at the jobsite that
day and that he was not the supervisor who conducted the meeting that morning
regarding expectations for the job. Concerning the January 20, 2015 safety violation,
Employee testified that he had merely stopped by the jobsite to drop off equipment and
left to meet another worker at a different jobsite. Employer’s witnesses indicated they
were unaware that Employee had to be at a different jobsite but that, even so, compliance
with safety regulations fell within the supervisory duties of Employee at that time.

      In addition to the safety violations, Employee testified regarding the issues
Employer raised as to the quality of the work. Employer took issue with the quality of
the work at several different sites, and Employee responded that, regarding one location,
he was working at a different jobsite on the date the poor quality work was performed.
Regarding another location, Employee testified that a piece of equipment had broken and
another had to be relocated from another site, taking time and resulting in the poor quality
product. Employee also testified that the quality control complaints raised by Employer
were impacted by weather conditions outside his control, as well as defective equipment.

       Following an expedited hearing, the trial court found that the date of injury was
August 27, 2014, that Employee was entitled to medical benefits, and that Ace American
Insurance was responsible for the payment of those benefits. These findings have not
been challenged on appeal. The trial court also ruled that Employee was not entitled to
temporary disability benefits because he had been terminated for cause. Employee has
appealed that determination.

                                   Standard of Review

       The standard of review to be applied by this Board in reviewing a trial court’s
decision is statutorily mandated and limited in scope. Specifically, “[t]here shall be a

                                             3
presumption that the findings and conclusions of the workers’ compensation judge are
correct, unless the preponderance of the evidence is otherwise.” Tenn. Code Ann. § 50-
6-239(c)(7) (2015). The trial court’s decision must be upheld unless the rights of a party
“have been prejudiced because findings, inferences, conclusions, or decisions of a
workers’ compensation judge:

       (A)    Violate constitutional or statutory provisions;
       (B)    Exceed the statutory authority of the workers’ compensation judge;
       (C)    Do not comply with lawful procedure;
       (D)    Are arbitrary, capricious, characterized by abuse of discretion, or
              clearly an unwarranted exercise of discretion;
       (E)    Are not supported by evidence that is both substantial and material
              in the light of the entire record.”

Tenn. Code Ann. § 50-6-217(a)(3) (2015). Like other courts applying the standards
embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court
absent the limited circumstances identified in the statute.

                                         Analysis

       Employee argues the evidence preponderates against the trial court’s conclusion
that he was terminated for cause. Accordingly, he asserts the trial court’s finding on that
issue should be reversed and temporary disability benefits should be awarded. We
disagree.

       As the name implies, an injured worker is entitled to temporary partial disability
benefits, a category of vocational disability distinct from temporary total disability, when
the temporary disability is not total. See Tenn. Code Ann. § 50-6-207(1)-(2) (2015).
Specifically, while temporary total disability refers to the employee’s condition while
completely unable to work because of the injury until the worker recovers as far as the
nature of the injury permits, “[t]emporary 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.” Williams v. Saturn Corp., No. M2004-01215-WC-R3-
CV, 2005 Tenn. LEXIS 1032, at *6 (Tenn. Workers’ Comp. Panel Nov. 15, 2005).

       However, even though an employee has a work-related injury for which temporary
benefits are payable, the employer is entitled to enforce workplace rules. See Carter v.
First Source Furniture Grp., 92 S.W.3d 367, 368 (Tenn. 2002). Thus, an employee’s
termination due to a violation of a workplace rule may relieve an employer of its
obligation to pay temporary disability benefits if the termination was related to the
workplace violation. See Marvin Windows of Tenn., Inc. v. Gardner, No. W2011-01479-
WC-R3-WC, 2012 Tenn. LEXIS 403, at *9 (Tenn. Workers’ Comp. Panel June 8, 2012).
When confronted with such a case, courts must “consider the employer’s need to enforce

                                             4
workplace rules and the reasonableness of the contested rules.” Id. at *10. An employer
will not be penalized for enforcing a policy if the court determines “(1) that the actions
allegedly precipitating the employee’s dismissal qualified as misconduct under
established or ordinary workplace rules and/or expectations; and (2) that those actions
were, as a factual matter, the true motivation for the dismissal.” Durham v. Cracker
Barrel Old Country Store, Inc., No. E2008-00708-WC-R3-WC, 2009 Tenn. LEXIS 3, at
*9 (Tenn. Workers’ Comp. Panel Jan. 5, 2009).

        In this case, it is undisputed that Employee worked until his termination on
February 9, 2015, and that he had been under restrictions being accommodated by
Employer. After hearing the testimony of Employee and Employer’s three witnesses, the
trial court concluded:

      While the timing of his termination raised some question as to motive, the
      testimony from Mr. Dittman and Mr. Phelps demonstrated [Employer] had
      a valid reason for his firing. Mr. Phelps testified [Employer] was
      concerned with what it regarded as [Employee’s] lax attitude toward safety
      issues, performance, and job quality issues. Mr. Dittman corroborated this
      testimony when he stated: “It was our inability to appropriately plan—plan
      the work and do it in a safe manner and do it with quality, and our inability
      to do a DPP on a daily basis that would address all of the issues that we
      were having on an ongoing manner.” Though not completely supportive,
      the totality of the evidence tended to support this testimony by showing
      [Employee] failed to conduct regular safety and planning meetings and was
      in a supervisory role when two serious safety violations occurred.
      Additionally, [Employer] pointed to concerns about work quality and cost
      overruns. While all were not directly attributable to [Employee’s] work, at
      least some of the quality and cost issues were.

Consequently, the trial court found that Employee was terminated for cause and,
therefore, was not entitled to temporary disability benefits.

        The testimony presented by the parties was conflicting, and the trial court had to
resolve those conflicts. After careful consideration of the record, we cannot conclude
that the evidence preponderates against the trial court’s decision. The trial judge heard
the testimony and found Employer had presented sufficient evidence that it had good
cause to terminate Employee for reasons unrelated to his work injuries. See Tryon v.
Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008) (When the trial court has seen and
heard the witnesses, considerable deference must be afforded the trial court’s factual
findings.). There is insufficient evidence to disturb that conclusion. Accordingly, we
affirm the trial court’s determination that Employee was terminated for cause and the
resulting denial of temporary disability benefits.


                                            5
       Before concluding, we note that Employer and Travelers Insurance Company, the
insurer as of September 1, 2014, argue that Employee’s “request” for an interlocutory
appeal “should be denied.” They assert that the denial of temporary disability benefits is
not dispositive of the entire claim and “until the entire case is decided, no interlocutory
appeal is justified.”

       Traditionally, a party seeking to appeal a pretrial determination of a trial court in a
workers’ compensation case was required to file an application for permission to appeal,
and the appellate court would then decide whether to grant or deny review. See Tenn. R.
App. P. 9 and 10. Thus, the appeal was discretionary, as opposed to an appeal as of right.
The Reform Act of 2013 changed this. Now, a party seeking to challenge a trial court’s
rulings prior to trial must file a notice of appeal, which Employee in this case did, and
assuming the appeal is properly perfected, we must resolve the appeal. See Tenn. Code
Ann. § 50-6-217(a)(2)(A) (2015). In other words, an interlocutory appeal to this Board is
an appeal as of right. Thus, contrary to Employer’s assertion, there is no “request” for an
appeal for us to deny.

                                        Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court’s decision. Nor does the trial court’s decision violate any of the standards
set forth in Tennessee Code Annotated section 50-6-217(a)(3). Accordingly, the trial
court’s decision is affirmed and the case is remanded for any further proceedings that
may be necessary.




                                              6
                  TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                     WORKERS’ COMPENSATION APPEALS BOARD


Buster Barrett                                           )   Docket No. 2015-06-0186
                                                         )   State File No. 78378-2014
v.                                                       )
                                                         )   Docket No. 2015-06-0188
Lithko Contracting, Inc., et al.                         )   State File No. 24788-2015
                                                         )
                                                         )   Docket No. 2015-06-0189
Appeal from the Court of Workers’                        )   State File No. 24789-2015
Compensation Claims                                      )
Joshua Davis Baker, 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 17th day of June, 2016.
 Name                    Certified   First Class   Via   Fax       Via      Email Address
                         Mail        Mail          Fax   Number    Email

 Jill Draughon                                                        X     jdraughon@hughesandcoleman.com
 John Barringer                                                       X     jbarringer@manierherod.com
 Wm. Ritchie Pigue                                                    X     rpigue@tpmblaw.com
 Patrick Ruth                                                         X     patrick.ruth@tn.gov
 Joshua Davis Baker,                                                  X     Via Electronic Mail
 Judge
 Kenneth M. Switzer,                                                  X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                  X     Penny.Patterson-Shrum@tn.gov
 Court of 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: Matthew.Salyer@tn.gov
