                                                                                            FILED
                                                                                         Oct 25, 2019
                                                                                         10:31 AM(ET)
                                                                                      TENNESSEE COURT OF
                                                                                     WORKERS' COMPENSATION
                                                                                            CLAIMS




             TENNESSEE BUREAU OF WORKERS' COMPENSATION
            IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                           AT CHATTANOOGA

Willie A. Jackson,                                 )   Docket No.: 2017-01-0541
             Employee,                             )
v.                                                 )
Koch Foods of Chattanooga,                         )   State File No.: 90515-2016
            Employer,                              )
And                                                )
Arch Ins. Co.,                                     )   Judge: Audrey A. Headrick
               Carrier.                            )


                          COMPENSATION HEARING ORDER


       The Court conducted a Compensation Hearing on October 15, 2019, on whether
Mr. Jackson is entitled to increased permanent partial disability benefits. 1 The issue is
whether Mr. Jackson's actions constituted both misconduct and the true motivation for
his termination. For the reasons below, the Court finds Koch terminated him for
violation of workplace rules, which was Koch's true motivation for his dismissal. The
Court, ,therefore, denies Mr. Jackson's claim for increased benefits.

                                         History of Claim
        Mr. Jackson sustained a right-arm work injury on November 21, 2016, and worked
restricted duty at full pay working normal hours. The hearing testimony mostly revolved
around three verbal altercations between Mr. Jackson and co-workers.

       First, Koch gave Mr. Jackson a written warning on January 30, 2017, due to an
argument with a co-worker in the hallway. The Corrective Action Notice reflects a
violation involving "loud or offensive language and or behavior."2 Mr. Jackson
explained that the co-worker made a lewd, sexual comment to him but acknowledged


1
  At the August 8, 2017 settlement, Mr. Jackson received an original award of $16,204.32. If the Court
awarded increased benefits, the parties stipulated to the amount of $10,046.67.
1
   pon his hi ring, Mr. Jackson igned an Acknowledgement of Receipt of Handbook.

                                                  1
there "may have been curse words" exchanged by both. Mr. Jackson conceded that Koch
could have terminated him over this incident.

        Second, Mr. Jackson had a disagreement on April 12, 2017, with the security
supervisor. Mr. Jackson asked Mr. Holmes to intervene. According to David Holmes,
Complex Human Resources Manager, Mr. Jackson was "very upset." Mr. Holmes asked
him to "please try to work with [Koch] as [it tries] to keep him working within his
restrictions." Although Mr. Holmes documented the incident, he did not give a written
wammg.

        Third and finally, Mr. Jackson received a suspension on June 14, 2017, for
multiple violations of Koch's rules involving two co-workers, Amber Higgins and
Ronnie Williams. The Corrective Action Notice reflects three violations: "fighting or
provoking a fight," "cursing co-workers," and "threatening employees." The rules state
that these violations are "grounds for immediate termination[.]"

       Recalling the third event, Mr. Jackson explained that employees are expected to
place their smocks, beard nets and gloves in specific places in the smock room before
leaving work. He stated Mr. Williams intentionally "threw things on the floor" as he left.
Mr. Jackson immediately confronted him about it, but Mr. Williams was dismissive.
Over ten minutes later, Mr. Jackson went outside to smoke, saw Mr. Williams, and again
discussed the matter, "trying to dial down what happened." He said he did not curse or
threaten Mr. Williams.

       Ms. Higgins witnessed the June 14 incident and provided a written statement. She
saw Mr. Williams drop his haimet on the floor and said Mr. Jackson later came into the
hallway cursing. Mr. Jackson followed them outside approximately two to three minutes
later cursing at Mr. Williams as they walked towards her car. 3 She testified that Mr.
Jackson said, "I don't know why you're fn with me. I'm gonna beat you up .... Don't
come back to my smock room for nothing, sucka boy." After leaving Koch, Ms. Higgins
suggested that they report the incident because she felt threatened.

        When Mr. Williams testified, he indicated he dropped his work clothing into a bin,
and it fell off because the bin was piled high. Mr. Jackson reacted angrily, so he threw it
back onto the bin. After Mr. Williams clocked out, and left the building with Ms.
Higgins, Mr. Jackson came outside cursing, and essentially said, "I'll put these hands on
you. Just because my hands are messed up don't mean I won't do something to you."
Mr. Williams stated he also felt threatened and agreed with Ms. Higgins that they should
report the incident.



3
    Testimony indicated Ms. Higgins and Mr. Williams are platonic friends who carpool together.

                                                     2
       After their report, Koch suspended Mr. Jackson for three days before terminating
him after an investigation. 4

       On cross-examination, Mr. Jackson acknowledged difficulty with his memory ever
since someone broke into his home last year and hit him over the head repeatedly with a
hammer. Regarding his ability to remember events, Mr. Jackson testified, "Sometimes I
do, and sometimes I don't." When he applied in 2016 to work at Koch, he acknowledged
a criminal history. He wrote on the application that the crimes occurred more than seven
years ago. However, Mr. Jackson pled guilty in 2015 to attempted theft of property. Mr.
Jackson further admitted previous diagnoses of schizophrenia and bipolar, but he
disputed mental health records that reflected he also exhibited hostile behaviors.

       Mr. Jackson stated he had no problems at work before the injury but afterward felt
"targeted" at Koch. 5 He asserted that Ms. Higgins and Mr. Williams "made up" their
written statements and speculated that they were forced to write the statements or risk
termination. Mr. Jackson referred to the events that occurred as a "set-up" to terminate
him because he was injured.

                            Findings of Fact and Conclusions of Law

      At a compensation hearing, Mr. Jackson must establish by a preponderance of the
evidence that he is entitled to the requested benefits. Willis v. All Staff, 2015 TN Wrk.
Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015).

       An employee is not entitled to recover increased permanent benefits when: (1) he
voluntarily resigns for reasons unrelated to the work injury; or (2) the loss of employment
is due to the employee's misconduct connected with the employment. Tenn. Code Ann.
§ 50-6-207(3)(B), (D) (2018). When an employee is terminated due to misconduct, the
Court must find "(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).

        Here, Koch argued Mr. Jackson is not entitled to increased permanent benefits
beyond his impairment rating because he was terminated for misconduct for violation of
its rules. The Court agrees.

4
  Video footage of the hallway existed, and Mr. Holmes reviewed the footage but did not retain it. The
Court previously ruled on a motion for spoliation sanctions holding that the least severe sanction to
remedy the prejudice suffered by Mr. Jackson is a negative inference that the video would have been
unfavorable to Koch.
5
    Koch hired Mr. Jackson on or about October 26, 2016, and his injury occurred on November 21.

                                                    3
       The Court finds Mr. Jackson engaged in misconduct on June 14, 2017, that
violated Koch's rules. Even with a negative inference that hallway video footage would
have been unfavorable to Koch (demonstrating no cursing by Mr. Jackson), the Court
finds the testimony of Ms. Higgins and Mr. Williams credible: Mr. Jackson followed
them outside, cursed Mr. Williams, threatened him, and told him not to return to the
smock room.

       Mr. Jackson acknowledged that Koch could have terminated him under its rules
for cursing at a co-worker on January 30, and it chose not to issue a written warning
when Mr. Jackson became "very upset" with the security supervisor on April 12. Those
actions do not indicate that Koch had pre-textual motivations for terminating Mr.
Jackson.

       The Court finds Mr. Jackson's actions qualified as misconduct under established
or ordinary workplace rules, and his actions were the true motivation for his dismissal.
His testimony implicated his ability to accurately remember events and to testify
truthfully. Mr. Jackson's credibility is intricately tied to the misconduct issue, and the
Court does not find his testimony credible. Therefore, the Court holds Mr. Jackson failed
to establish by a preponderance of the evidence that he is entitled to increased benefits
beyond his original award.

IT IS, THEREFORE, ORDERED as follows:
   1. Mr. Jackson's claim for increased benefits is denied.

   2. Koch Foods shall pay court costs of $150.00 to the Court Clerk within five
      business days of this order becoming final.

   3. Koch Foods shall prepare and submit a Statistical Data Form (SD2) within ten
      business days of this order becoming final.

   4. Absent an appeal, this order shall become final thirty days after issuance.

ENTERED October 25, 2019.




                                   D A.A~ ~ c:aci1; cOl\
                                  Judge Audrey A~adrick
                                  Court of Workers' Compensation Claims



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                                    APPENDIX



Exhibits:
   1. Photographs of Koch's facility
   2. Koch's Employee Handbook (Pages 48 and 49)
   3. Mr. Jackson's Responses to Koch's Requests for Production
   4. Criminal conviction record from May 27, 2015
   5. Acknowledgement of Receipt ofHandbook
   6. Corrective Action Notice (January 31, 2017)
   7. Corrective Action Notice (June 22, 2017)
   8. Corrective Action Notice (June 28, 20 17)
   9. Separation Notice
   10. Affidavit of Mr. Holmes (Identification Only)
   11. Personnel file of Mr. Jackson (Identification Only)


Technical Record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice, April 18, 2019
   3. Request for Scheduling Hearing
   4. Scheduling Hearing Order
   5. Motion for Spoliation Sanctions
   6. Brief in Support of Motion for Spoliation Sanctions
   7. Koch's Response to Employee's Motion for Spoliation Sanctions
   8. Motion to Compel Discovery Answers
   9. Koch's Response to Employees Motion to Compel Discovery Answers
   10. Order Granting Motion for Spoliation Sanctions
   11. Order Denying Motion to Compel Discovery Answers
   12. Dispute Certification Notice, September 13, 2019
   13. Pre-Compensation Hearing Statement
   14. Trial Brief of Koch




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                              CERTIFICATE OF SERVICE

 I certify that a copy of this Order was sent as indicated on October 25, 2019.

         Name             Certified       Email       Service Sent to:
                           Mail
Tim Henshaw,                                X         tim@mcmahanlawfirm.com
Employee's Attorney
Ben Reese,                                  X         btr@smrw.com
Emp_lo_yer' s Attorney




                                                    P~r~
                                                PENNY S         , COURT CLE
                                                    wc.courtclerk@tn.gov




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