Jared Renfroe, an attorney in Spicer Rudstrom’s Memphis office, recently secured a defense judgment in favor of his client in the Tennessee Court of Workers’ Compensation Claims at Nashville. The decision was not appealed, so it has become a final judgment.
The facts of the case involve a 10-year employee of a truck stop who was given an assignment of changing a semi-truck tire. This type of work is very common at the truck stop, and the employer provided various safety devices and training for employees to keep them safe. Two of the safety devices were at issue in the case: a tire cage and an auto-inflation system. The tire cage located in the shop is designed to absorb the impact from a tire explosion, preventing the tire from becoming a flying projectile if it were to explode. The auto-inflation system is designed to work in conjunction with the tire cage so that employees can connect the air hose to the tire while it is in the tire cage, and type in the amount of desired pressure on the auto-inflation digital device, and the device automatically inflates the tire, allowing the employee to stand a safe distance away from the tire while it is inflating.
However, on the date of the accident, the employee did not use either the tire cage or the auto-inflation system, instead opting to inflate the tire with it lying flat on the ground. The employee admitted that he was trained on the importance of using these devices and on how to use them, but he alleged that on the date of the accident, the tire cage was surrounded by clutter, and that the auto-inflation system was inoperable. However, this testimony was contradicted by several witnesses, including another employee who had used both the tire cage and auto-inflation system on the same date of the accident.
Significantly, although the employee in a workers’ compensation case generally bears the burden of proving his or her claim, when a defense such as the ones used by the employer in this case is raised, the burden shifts to the employer to prove the defenses. In this case, there was no disagreement as to the fact that the injury arose primarily out of and in the course and scope of the employment. Rather, the issue was whether the employer could meet its burden of establishing the four elements of its defenses:
1.the employee had actual, as opposed to constructive, notice of the policy requiring the use of the safety devices;
2. the employee understood the danger of violating the policy;
3. the employer strictly enforced the policy; and
4. the employee did not have a valid excuse for violating the policy.
The first and second elements were easily met through the employee’s own testimony. However, the third and fourth elements were in dispute. The employee alleged that almost every employee violated the safety policy regularly, but this was contradicted by testimony from another employee, the shop manager, and the district manager. Additionally, with regard to the employee’s excuses for not using the safety devices, the Court held that his excuses were not valid. Thus, the Court ruled in favor of the employer, holding that the employee’s willful misconduct and willful failure to use the safety devices barred his claim.
The Court also made an alternate ruling on an interesting procedural argument, holding that even if the employer did not succeed on the safety defense, the employee failed to prove the extent of impairment from his injury. The employee’s attorney sent the employee for an independent medical evaluation, which resulted in a permanent impairment rating being assigned. Although the employee’s pre-hearing statement indicated that he intended to rely on the IME report and he attached the report as an exhibit, he did not file a Standard Medical Report, Form C-32, or a transcript of the physician’s deposition, which was not taken.
Mr. Renfroe objected to the IME report being admitted as evidence, and upon a pre-trial hearing, the Court agreed and excluded the expert report from evidence. The Court held that the IME report was not a medical “record” but was rather a medical “report,” which are treated differently in the workers’ compensation statutes and regulations. The Court also excluded the expert witness IME physician from testifying live telephonically at trial based upon Mr. Renfroe’s objection that the expert was not designated as a witness in the required pre-trial witness list submitted by the employee.
Workers’ compensation practitioners know that it is not an easy feat to succeed on a defense of willful misconduct or willful failure to use a safety device. Mr. Renfroe and his client are pleased with the outcome of the case and hope that it may be used for precedential impact in future cases involving safety violations or willful misconduct of employees.
Jared S. Renfroe is an attorney in Spicer Rudstrom, PLLC’s Memphis office. His practice focuses on workers’ compensation defense and labor and employment litigation across Tennessee. Jared may be contacted at (901) 522-2317 or [email protected].