              TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                 WORKERS’ COMPENSATION APPEALS BOARD
                   (HEARD JANUARY 10, 2018 AT JACKSON)

Jay Burnett                                   ) Docket No. 2017-08-0409
                                              )
v.                                            ) State File No. 14753-2017
                                              )
Builders Transportation, et al.               )
                                              )
                                              )
Appeal from the Court of Workers’             )
Compensation Claims                           )
Deana C. Seymour, Judge                       )

                   Affirmed and Remanded - Filed February 8, 2018

The employee, a truck driver, suffered injuries when steel pipes he was delivering rolled
off a flatbed trailer and struck him. The employer denied the employee’s claim for
benefits, asserting the employee failed to use pipe stakes to secure the load and that such
failure amounted to willful misconduct or a willful failure or refusal to use a safety
device. At an expedited hearing, the parties stipulated that the only issue was whether the
employee was guilty of willful misconduct, and that if not, the employee would be
entitled to temporary disability and medical benefits as a result of the work-related injury.
Following the hearing, the trial court awarded benefits, finding the employer did not
present sufficient evidence to establish its affirmative defense and concluding the
employee established he is likely to prevail at trial. The employer has appealed. We
affirm the trial court’s order awarding temporary disability and medical benefits and
remand the case.

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

Michael W. Jones, Nashville, Tennessee, for the employer-appellant, Builders
Transportation

Shannon L. Toon, Memphis, Tennessee, for the employee-appellee, Jay Burnett




                                             1
                                Factual and Procedural Background

      Jay Burnett (“Employee”), a fifty-three-year-old resident of Perryville, Missouri,
worked as an over-the-road truck driver for Builders Transportation Company, LLC
(“Employer”). On February 26, 2017, he left Perryville driving Employer’s truck with an
empty flatbed trailer en route to Tenaris, a manufacturer of steel pipes located in
Blytheville, Arkansas. Upon his arrival, he “dropped” his flatbed trailer in a designated
drop area and located the trailer loaded with steel pipes that he was to transport to
Consolidated Pipe & Supply Co. (“Consolidated”), in Birmingham, Alabama.

        According to a statement signed by Employee, upon backing to the loaded trailer,
but before hooking it up, he inspected the trailer.1 He described the load as being “about
[four] tiers high with lumber securement and with [four] straps attached.” His statement
indicated he hooked the trailer to his truck and “added the needed additional straps and
[four] pipe stakes for securement of the load.” After checking the trailer lights, he drove
onto the scales and went inside the office where he was given paperwork describing the
load and the weight of the load. After “signing out,” he left en route to Consolidated, but
stopped before reaching Birmingham to park overnight because Consolidated would not
be open until the next morning.

       Early the next morning he arrived at Consolidated, parking his truck “in line”
where other trucks were located outside of Consolidated’s premises before walking to the
“guard/check-in office.” He was instructed he would be notified “when they were ready
for [him],” after which he returned to his truck. Upon being notified, he “proceeded to
the guard shack at the gate for them to let [him] onto the yard.” His written statement
described the events that followed.

          After checking my load, they opened the gate and I proceeded to the yard to
          the unloading point. I was instructed to unstrap the load to allow them to
          unload. After inspecting the load, I started loosening wenches [sic]/straps
          at the front of the trailer moving my way back towards the back of the
          trailer. As I neared the last two straps, I heard something move or break. I
          tried to get out of the way but was not able. I was hit by pipes that fell off
          the trailer.

       Employee sustained serious injuries and was transported by ambulance to the
University of Alabama Medical Center in Birmingham where he underwent numerous
surgeries and remained hospitalized until April 20, 2017.2 Employer promptly completed
a First Report of Work Injury. However, following its investigation of the accident,
1
    The statement was admitted into evidence at the expedited hearing by agreement of the parties.
2
  There is no dispute concerning Employee’s medical care and treatment. Accordingly, we need not
summarize the nature or extent of the medical treatment.

                                                      2
Employer denied Employee’s claim for workers’ compensation benefits based upon
Tennessee Code Annotated section 50-6-110(a) (2017), asserting Employee willfully
failed or refused to use a safety device by failing to properly secure his load with pipe
stakes, and that his failure to use the pipe stakes constituted willful misconduct.3

        Although present at the expedited hearing, Employee did not testify in person. He
gave his account of the accident through an affidavit and the written statement addressed
above, both of which were admitted into evidence without objection. Employee’s
affidavit stated, among other matters, that Employer denied him workers’ compensation
benefits “based upon willful misconduct and willful violation of safety equipment [sic].”
It further stated, “I deny any alleged willful misconduct and/or any alleged violation of
safety equipment [sic].”4

       The trial court heard testimony from Employer’s training supervisor, Robert Hall,
and its safety and risk director, A. J. Sellers. Neither of these representatives witnessed
the incident. Mr. Hall’s testimony established that Employee had been trained in and had
knowledge of Employer’s policies and procedures, particularly in regard to securing
loads for transport. Documents bearing Employee’s signature were introduced into
evidence to support Mr. Hall’s testimony.

       Mr. Sellers testified that he went to Birmingham to inspect the truck and trailer
and to visit the accident scene the day after the accident occurred. Because he needed
time to travel to Birmingham, he asked Employer’s facility manager in Birmingham to go
to Consolidated’s yard and photograph the scene. He also requested and received
photographs from someone at Consolidated, which were entered into evidence over
Employee’s objection. No photographs taken by Employer’s Birmingham facility
manager were offered into evidence, and the Birmingham facility manager did not testify.
Mr. Sellers inspected the truck and trailer at Employer’s Birmingham facility where they
had been moved after the accident. The steel pipes Employee delivered to Consolidated
were not on the trailer at the time of his inspection. Mr. Sellers testified that the pipe
stakes were stored on the truck and were undamaged and appeared “rusted,” indicating to
him that the stakes had not been used recently. Neither Mr. Sellers nor Mr. Hall testified
that there was any record of any policy violations or disciplinary actions taken against
Employee before the February 2017 accident.

        At the expedited hearing, the parties agreed that the only disputed issue was
whether there was any willful misconduct by Employee. The trial court phrased the issue
in its expedited hearing order as whether Employer “is likely to establish at a hearing on
the merits that [Employee’s] willful misconduct or willful violation of a safety rule bars
3
  As explained by Employer’s witness, A. J. Sellers, pipe stakes are pieces of metal that fit into holes on
the side of the flatbed trailer that provide additional security to prevent a load from rolling or falling off.
4
    The affidavit, however, did not address his alleged use of pipe stakes.

                                                        3
his claim.” The trial court found that Employer failed to present evidence to overcome
Employee’s assertion that he used the pipe stakes and awarded Employee temporary
disability and medical 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) (2017). 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 (2017).

                                        Analysis

       Employer identifies a single issue on appeal, asserting it “presented sufficient
evidence to meet [its] burden of proof on the essential elements of the ‘Mitchell Defense’
from which the lower court could determine [it is] likely to prevail on that defense.”
(Emphasis added.) Citing McCord v. Advantage Human Resourcing, No. 2014-06-0063,
2015 TN Wrk. Comp App. Bd. LEXIS 6, at *9 (Tenn. Workers’ Comp. App. Bd. Mar 27,
2015), Employer contends that a lesser evidentiary standard applies at the expedited
hearing stage and allows some relief to be granted even if the evidence does not rise to
the level of a preponderance of the evidence. It asserts that it provided sufficient
evidence from which the trial court could determine that it is “likely to prevail at a
Compensation Hearing” in establishing its affirmative defense.

       Tennessee Code Annotated section 50-6-239(d)(1) provides that a workers’
compensation judge may hear disputes on an expedited basis and enter an interlocutory
order for temporary disability or medical benefits “upon determining that the injured
employee would likely prevail at a hearing on the merits.” (Emphasis added.) We have
consistently described this burden of proof as a “lesser evidentiary standard” than a
preponderance of the evidence. See Helgerson v. Packer Sanitation Servs., Inc., No.
2014-03-0023, 2015 TN Wrk. Comp. App. Bd. LEXIS 38, at *10-11 (Tenn. Workers’

                                            4
Comp. App. Bd. Sept. 23, 2015); Lallo v. Marion Environmental, Inc., No. 2015-06-
0287, 2015 TN Wrk. Comp. App. Bd. LEXIS 32, at *6-7 (Tenn. Workers’ Comp. App.
Bd. Sept. 4, 2015).

       Here, the trial court determined that Employee “has shown he is likely to prevail at
a hearing on the merits regarding his claim for benefits,” which is the appropriate
standard of proof applicable to an employee at the expedited hearing stage of litigation.
See Tenn. Code Ann. § 50-6-239(d)(1). However, this evidentiary standard, by its very
terms, is applicable to an employee seeking temporary disability or medical benefits on an
expedited basis. Nothing in section 50-6-239 addresses an employer’s affirmative
defenses or the standard of proof applicable in establishing those defenses at an expedited
hearing. See Tenn. Code Ann. § 50-6-239.

       Employer’s defense relies on Tennessee Code Annotated sections 50-6-110(a)(1)
and (4), which provide that no compensation “shall be allowed for an injury” due to the
employee’s “willful misconduct” or the employee’s “willful failure or refusal to use a
safety device.” Section 50-6-110(b) provides that if an employer defends on either of
these grounds “the burden of proof shall be on the employer to establish the defense.”
Irrespective of the burden of proof placed upon an employer at a trial on the merits who
asserts an affirmative defense pursuant to section 50-6-110(a), section 50-6-239(d)(1)
provides that the standard applicable in determining whether an employee is entitled to
benefits at an expedited hearing is whether the evidence is sufficient for the court to
determine “that the employee would likely prevail at a hearing on the merits.” Tenn.
Code Ann. § 50-6-239(d)(1).

       We previously applied the test set out in Mitchell v. Fayetteville Public Utilities,
368 S.W.3d 442 (Tenn. 2012), for determining whether an injured worker committed
willful misconduct or willfully failed or refused to use a safety device. See Roper v.
Allegis Group, No. 2016-01-0546, 2017 TN Wrk. Comp. App. Bd. LEXIS 14 (Tenn.
Workers’ Comp. App. Bd. Feb. 10, 2017). In Roper, we reiterated the four elements of a
successful defense based on section 50-6-110(a): “(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.” Id. at *7. Additionally,
we have observed that “it stands to reason that the existence of a violation must occur to
successfully invoke this defense.” Neal v. Connect Express, LLC, No. 2016-06-1872,
2017 TN Wrk. Comp. App. Bd. LEXIS 9, at *10 (Tenn. Workers’ Comp. App. Bd. Jan.
30, 2017).

       In the instant case, Employee’s signed statement reflects that, when he was
preparing to depart for Birmingham, he “added the needed additional straps and [four]
pipe stakes for securement of the load.” Neither of Employer’s witnesses at the
expedited hearing actually saw the accident occur or investigated the accident on the day

                                            5
of its occurrence. Neither investigated the accident while the truck and trailer were
present at the accident location. Photographs admitted into evidence show the purported
accident scene, but the person who took the photographs did not testify. The only
testimony concerning those photos was provided by Mr. Sellers, who was able to testify
only as to how he received the photographs. By the time Mr. Sellers examined the truck
and trailer, the steel pipes had been unloaded from the trailer and the truck and trailer had
been moved to Employer’s Birmingham facility. Mr. Sellers offered no testimony as to
how the pipe stakes came to be placed in the storage area on the truck and trailer.

        The trial court analyzed the facts consistently with Mitchell and determined that
Employer “failed to present evidence to overcome [Employee’s] assertion that he used
the pipe stakes.” In short, although there was circumstantial evidence to the contrary, the
trial court accepted Employee’s account that he added the four pipe stakes. The trial
court rejected Employer’s defense and concluded Employee “did not ‘willfully’ violate a
safety rule or commit ‘willful’ misconduct.” Based on these determinations, the trial
court found that Employee “has shown he is likely to prevail at a hearing on the merits
regarding his claim for benefits.” The preponderance of the evidence supports the trial
court’s determinations at this interlocutory stage of the case.

                                        Conclusion

       For the foregoing reasons, we affirm the trial court’s decision and remand the case
for any further proceedings that may be necessary.




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


Jay Burnett                                                )   Docket No.   2017-08-0409
                                                           )
v.                                                         )   State File No. 14753-2017
                                                           )
Builders Transportation, et al.                            )


                                     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 8th day of February, 2018.
 Name                    Certified   First   Class   Via   Fax      Via     Email Address
                         Mail        Mail            Fax   Number   Email

 Shannon L. Toon                                                      X     stoon@taylortoon.com
 Michael W. Jones                                                     X     mjones@wimberlylawson.com
 Deana C. Seymour,                                                    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




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov
