Are You Smarter than the Tennessee Supreme Court?

Are You Smarter than the Tennessee Supreme Court? Presented to American Society of Safety Engineers Middle Tennessee Chapter By Teresa Bullington Assistant Administrator Workers’ Compensation Division 9/12/11

Scope of Employment • Employee staying at a hotel for business travel drowned in hotel swimming pool.

Compensable or not?

Trial Court • Granted Employer’s motion for summary judgment, holding as a matter of law that Employee was not in the scope of employment, as he was engaging in recreational activities.

Supreme Court • Reversed summary judgment, holding that a travelling employee continues to be in the scope of employment if engaged in reasonable social or recreational activities • Remanded back to trial court to hear specific facts that might relate to reasonableness of Employee’s activity

Arising Out of Employment • Employee was on Labor Ready premises to pick up his check for work previously done • While there, a truck pulled up an a woman came into the Labor Ready office and asked to use the restroom. She was advised that there was no public restroom. • Companion of Employee said she could “relieve herself” in the alley

A few minutes later, truck returned, and male driver, Phillips, got out and said to Employee and his companion “You got a f______ problem?” Employee allegedly said “No, but we can make one.” Phillips came at Employee, who hit him. Phillips then pulled a gun and fatally shot Employee.

Trial Court • Held that death was compensable, as there was a rational connection to the employment. • Employee was on employer’s premises for a legitimate employment reason • Assailant’s anger toward Employee was related to Labor Ready’s policy which prohibited girlfriend from using restroom.

Supreme Court • “Our deferential review of the trial court's factual findings, particularly those based on an assessment of the witnesses' credibility, leads to the conclusion that the evidence does not preponderate against the trial court's findings in this case.”

Act of God • Truck driver was driving from California to deliver a load in Memphis. While going through Oklahoma a/k/a “Tornado Alley,” his truck was lifted and spun around, with the cab facing toward the ground. It was finally dropped about a half-mile from where it was picked up. • Employee sustained numerous lacerations and an injury to his collar bone/shoulder joint.

Trial Court • Trial court held that Employee was exposed to a greater risk than the general public, who could more easily seek shelter, and had no obligation to keep going through the storm to meet a deadline. • Trial court also considered expert testimony from a mechanical engineer to the effect that a tractor trailer with a full load would fall with more force than a passenger vehicle.

Supreme Court • Agreed with findings of trial court on all issues • Distinguished case from precedent of night watchman who was killed when tornado hit building, which collapsed. No greater risk than general public

Failure to Use a Safety Device • Employee, a greaser at manufacturing plant, was on a ladder four to five feet off the floor, attempting to grease a turn-roller machine located in the company's paint shop. Another employee unexpectedly activated the power to the turn-roller, causing Employee to fall from the ladder, injuring his ankle.

It is undisputed that Employee failed to use a safety appliance and failed to follow the safety procedures that were adopted by State Industries with respect to greasing and oiling the industrial machinery. He failed to use the “lockout/tagout” procedure. This procedure prevents a machine from engaging its power source.

Trial Court Said Employee’s failure to use safety device caused injury, so Employer should not be held responsible Employer had OSHA training by safety consultants to train employees in use of lockout/tagout device Employer established mandatory policy to use device Employee had a personalized lock and tag

Supreme Court Established Rule • 1. At the time of the injury the employer had in effect a policy requiring the employee's use of a particular safety appliance; • 2. Employer carried out strict, continuous and bona fide enforcement of the policy; • 3. Employee had actual knowledge of the policy, including a knowledge of the danger involved in its violation, through training provided by the employer; and • 4. Employee willfully and intentionally failed or refused to follow the established policy requiring use of the safety appliance.

Supreme Court sent back to trial court • Held that first 3 criteria had been met, BUT • It wasn’t clear whether employee’s failure to lockout/tagout was willful, because other employees testified they only used the lockout/tagout device occasionally • No evidence regarding what the Employer’s enforcement procedure was

Intoxication Defense • While teaching a trainee how to use a machine, employee reaches behind/into machine • Trainee hits “Start” button, instantly pulling Employee’s hand and arm into machine. Trainee freezes and does nothing • With one hand caught in machine, Employee reaches around to front of machine and turns it off

Drug Free Workplace • Employee gets emergency medical treatment, takes drug test, and tests positive for marijuana • Employer is a member of Drug Free Workplace Program

Trial Court • Trial Court held Employee was barred from receiving compensation • Under DFWP law, Employee who tests positive is presumed to be under the influence of drug • Impairment is presumed to have caused the injury

Supreme Court • Reversed trial court’s dismissal, holding that: • Since marijuana is detectible up to 30 days after use, court could look at other circumstances on issue of impairment • Because of employee’s quick and appropriate action in turning off machine, presumption of impairment was rebutted

TOSHA Penalty Proceedings • Fatality due to contact with live power lines while repairing storm damage • Crew composed of employees from Powell Valley Electrical Cooperative and Dillard Smith Construction Company. They were in two trucks

On second job site of the day, PVEC employee, Gibson, told Dillard Smith foreman, Jones, to drive further up road to check “tap line” to see if there was live voltage • Before Jones left, Dillard Smith Lineman Apprentice, Cameron, exited Jones’ truck, and got his pole climbing equipment out • Before checking tap line, Jones drove to nearby driveway to see if trees were on residential line

Jones came back by Cameron and Gibson, who were already working on pole • Gibson asked Jones to get hoist from truck that they needed to work on pole • Jones was handing hoist to Gibson when Cameron came into contact with an energized line and was killed

TOSHA violations • 6 different citations against Dillard Smith by TOSHA Review Commission for maximum of $7,000 each • Dillard Smith appealed all to Chancery Court • Court upheld all except citation for failure to have job briefing before commencing work, as Jones claimed he intended to conduct job briefing after he checked tap line and before work started

Citation proper or not?

Supreme Court Reversed • Found that testimony of Gibson, who did not work for Dillard Smith, was more credible than that of Jones, who was Dillard Smith employee • Found that Jones knew that Cameron had already commenced working on the pole without the lines having been checked, de-energized, or grounded • Found that Jones had no intention of conducting job briefing

So, are you smarter than the Tennessee Supreme Court?

Could be, but they still get to call the shots!

Teresa Bullington Assistant Administrator Workers’ Compensation Division Tennessee Department of Labor & Workforce Development Teresa.Bullington@tn.gov

Are You Smarter than the Tennessee Supreme Court?