Mark Gray v. Tyson Foods, Inc.

IN THE SUPREME COURT OF TENNESSEE

SPECIAL WORKERS' COMPENSATION APPEALS PANEL

AT JACKSON

Assigned on Briefs August 19, 2024 FILED

JAN 2 3 2025

MARK GRAY v. TYSON FOODS, INC.

Clerk of th urts

By

Appeal from the Workers' Compensation Appeals BoIr d -

Court of Workers' Compensation Claims

No. 2021-07-0545 Amber E. Luttrell, Judge

No. W2024-00447-SC-R3-WC — Mailed October 10, 2024

Mark Gray ("Employee") reported injuries after falling from a ladder while working for

Tyson Foods, Inc. ("Employer"). The claim was accepted as compensable, and the parties

entered into a settlement agreement providing permanent partial disability benefits. After

the initial compensation period ended, Employee filed a petition for increased benefits.

Following a hearing, the Court of Workers' Compensation Claims ("trial court") denied

the request for increased benefits. The Workers' Compensation Appeals Board ("Appeals

Board") affirmed. Ernployee has appealed, and the appeal has been referred to the Special

Workers' Compensation Appeals Panel pursuant to Tennessee Supreme Court Rule 51. We

affirm the judgment of the Appeals Board and adopt its opinion as set forth in the attached

Appendix.

Tenn. Code Ann. § 50-6-217(a)(2)(B) Appeal as of Right;

Decision of the Workers' Compensation Appeals Board Affirmed

VANESSA A. JACKSON, SR. J., delivered the opinion of the court, in which JEFFREY S.

BIVINS, J., and W. MARK WARD, SR. J., joined.

Charles L. Holliday, Jackson, Tennessee, for the appellant, Mark Gray.

Jared S. Renfroe, Memphis, Tennessee, for the appellee, Tyson Foods, Inc.

OPINION

Employee was injured on February 25, 2020, when he fell off a ladder at work. The

parties entered into a settlement agreement in February 2022, agreeing to a permanent

impairment rating of 11.5% to the body as a whole. This resulted in an agreed award of

$34,819.99, which Employer paid as a lump sum to Employee. The initial compensation

period ended on August 8, 2022.

On January 11, 2023, Employee filed a petition for benefit deterrnination, seeking

increased permanent partial disability benefits. After mediation was unsuccessful, a dispute

certification notice was issued on February 9, 2023. The parties agreed that the dispute

centered on whether Employee was entitled to increased benefits under Tenn. Code Ann.

§ 50-6-207(3)(B).

A compensation hearing was held on August 16, 2023. The trial court entered a

compensation order on September 15, 2023, determining that Ernployee was not entitled

to increased benefits because he was earning a greater wage at the time his initial

compensation period ended than at the time of his injury. The trial court further found that,

even if Employee had not been earning a greater wage, he would not have been entitled to

increased benefits because he had been terminated for failure to comply with Employer's

COVID-19 vaccination policy, which the trial court determined constituted misconduct.

Ernployee appealed, and the Appeals Board affirmed and certified the trial court's

order as final. The Appeals Board agreed with the trial court that Employee was not entitled

to increased benefits because he was earning a greater wage. As a result, the Appeals Board

found it unnecessary to address whether Employee's failure to cornply with Employer's

vaccination policy constituted misconduct.

In this appeal, the only issue is whether the trial court erred in determining that

Employee was not entitled to increased benefits under Tennessee Code Annotated section

50-6-207(3)(B). Upon due consideration, we affirm the judgrnent of the Appeals Board

and adopt its opinion as set forth in the attached Appendix. Costs of this appeal are taxed

to Mark Gray, for which execution may issue if necessary.

VANESSA A. JACKSON, SENIOR JUDGE

2

APPENDIX

(OPINION OF THE WORKERS' COMPENSATION

APPEALS BOARD)

Factual and Procedural Background

Mark Gray ("Employee") worked for Tyson Foods, Inc. ("Employer"), in

maintenance. On February 25, 2020, Employee fell 10-12 feet from a ladder at work,

resulting in pain in his right arm and shoulder, low back, hip, collarbone, and right leg. His

claim was accepted as compensable, and medical benefits were paid. Employee returned

to work for Employer following the injury but was subsequently terminated as of

November 1, 2021, because he declined to take a COVID-19 vaccine as rnandated by

Employer.

On February 10, 2022, the trial court approved a proposed settlement of Employee's

claim for an "original award" of permanent disability benefits as that term is defined in

Tennessee Code Annotated section 50-6-207(3)(A). After leaving his job with Ernployer,

Employee began working as an independent contractor. At the time his initial

compensation period ended on August 8, 2022, Employee was working for two different

companies, one of which paid him $20.00 per hour and the other of which paid hirn $25.00

per hour.' Thereafter, Employee filed a petition seeking increased benefits pursuant to

Tennessee Code Annotated section 50-6-207(3)(B).

Employer denied the claim for increased benefits, asserting that Employee's refusal

to receive a mandated COVID-19 vaccine constituted misconduct, which it argued

disqualified Employee from receiving increased benefits pursuant to section 50-6-

207(3)(D)(ii) or, in the alternative, that his decision not to receive the vaccine was the

equivalent of a voluntary resignation under section 50-6-207(3)(D)(i). Employer also

claimed that Employee had returned to work following his separation earning wages at a

rate higher than his pre-injury rate, thereby disqualifying him from receiving increased

benefits in accordance with Tennessee Code Annotated section 50-6-207(3)(B).

In preparing for a hearing on Ernployee's claim for increased benefits, the parties

stipulated that Employee was claiming entitlement to additional permanent disability

'The parties stipulated that, at the time of the work injury, Employee was earning wages at a rate of $22.22

per hour. Employee also acknowledged that, after his work as an independent contractor ended, he became

an employee of another company earning wages at a rate equal or higher than the rate he was earning at the

time of his injury.

3

benefits pursuant to section 207(3)(B) only. They further stipulated that, as of the date

Employee's initial compensation period ended, he was working as an independent

contractor as noted above.

Following the hearing, the trial court issued an order denying Employee's clairn for

increased benefits. The court determined that, based on our opinion in Marshall v. Mueller

Co., No. 2015-01-0147, 2016 TN Wrk. Comp. App. Bd. LEXIS 74 (Tenn. Workers' Comp.

App. Bd. July 11, 2016), the term "wages" as used in section 207(3)(B) refers to the hourly

rate at which a worker is compensated if the worker is compensated on an hourly basis.

The trial court then stated, "[t]he plain language of the clause does not require [Employee]

to return to work as a W2 employee." Thus, because Employee had returned to work and

was earning wages for one company at an hourly rate higher than his pre-injury rate, he

was disqualified frorn seeking increased benefits under subsection 207(3)(B). The court

further determined that Employee's decision not to take a company-mandated COVID-19

vaccine constituted "misconduct connected with the employee's employment," which also

disqualified him from receiving increased benefits pursuant to section 207(3)(D)(ii).

Employee has appealed.

Standard of Review

The standard we apply in reviewing the 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) (2023). However, 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

(2023).

Analysis

As an initial matter, we note that Employer cites Tennessee Code Annotated section

50-6-217(a)(3) (2016) (repealed 2017) in its brief, which authorized us to reverse or modify

a trial court's decision if the rights of a party were prejudiced because the findings of the

trial judge were "not supported by evidence that is both substantial and material in light of

the entire record." However, as we have observed on numerous occasions, this code section

was repealed effective May 9, 2017. Consequently, the standard we apply in reviewing the

4

trial court's decision presurnes that the trial judge's factual findings are correct unless the

preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-239(c)(7).

Employee has raised five issues on appeal, which we have restated as follows: (1)

whether the trial court erred in considering Employee's rate of pay as of the date his

original compensation period ended as opposed to comparing his gross wages for the pay

period during which his original compensation period ended to his gross wages in the pay

period during which the work accident occurred; (2) whether a worker who earns income

as an independent contractor as of the date the original compensation period ended has

"returned to work" within the meaning of Tennessee Code Annotated section 50-6-

207(3)(B); (3) whether the income earned by someone who returned to work as an

independent contractor can be fairly compared to the worker's pre-injury wages; (4)

whether we misinterpreted the law in Marshall v. Mueller Company; and (5) whether the

trial court erred in determining Employee's separation from Employer was due to

"misconduct."

The first four issues raised by Employee as noted above relate to an injured worker's

right to seek "increased benefits" as that term is used in Tennessee Code Annotated section

50-6-207(3)(b). Following the effective date of the 2013 Workers' Compensation Reform

Act, the manner in which an injured worker receives benefits to compensate him or her for

permanent partial disability changed significantly. The new system for paying permanent

partial disability benefits was discussed extensively in Batey v. Deliver This, Inc., 568

S.W.3d 91 (Tenn. 2019):

The manner in which a trial court determines an injured worker's eligibility

for permanent disability benefits is governed primarily by two statutes:

Tennessee Code Annotated sections 50-6-207 and 50-6-242. When a worker

suffers a compensable work injury, reaches maximum medical improvement,

and is assigned a permanent medical impairment rating, he or she is entitled

to receive perrnanent disability benefits. See Tenn. Code Ann. § 50-6-

207(3)(A). The amount of such benefits is calculated by multiplying the

ernployee's medical impairment rating by 450, then multiplying the result by

the employee's weekly compensation rate. This amount is designated the

"original award." An injured worker is entitled to the "original award"

regardless of his or her employrnent status as of the date of maximum

medical improvement. Id.

If, at the end of the initial period of compensation (the number of

weeks represented by the original award), the employee has not returned to

5

workfor any employer at an equal or greater rate ofpay as before the injury,

then the employee qualifies for an increased benefit equal to 1.35 times the

original award (minus a credit for payment of the original award). A trial

court can further increase this award if: (1) the employee lacks a high school

diplorna or general equivalency diploma; (2) the employee is over the age of

40 at the time the initial period of compensation ends; or (3) the

unemployment rate in the employee's Tennessee county of employment was

at least two percentage points higher than the state's unemployment rate at

the time the initial period of compensation ends. Id. These additional benefits

are generally called an "increased award" or "increased benefits."

Id. at 96 (emphasis added).2 Notably, the Supreme Court approved and adopted the

language from our earlier analysis in Batey explaining that the relevant comparison when

considering a claim for increased benefits is the "rate of pay" of the injured worker as of

the date of the injury and as of the date the original compensation period ended. Thus, we

conclude Employee's argument that a court should compare the gross wages of the

employee during the week or pay period during which the initial compensation period

ended to his or her gross wages as of the week or pay period of the accident is without

merit. We further conclude that Employee's contention that we erred in analyzing the

phrase "wages or salary" as discussed in Marshall v. Mueller Company is also without

merit. The Supreme Court has expressly approved and adopted our analysis stating that the

word "wages" as used in Tennessee Code Annotated section 50-6-207(3)(B) refers to the

"rate of pay" of the injured worker when that worker is compensated on an hourly basis.

Consequently, in the present case, we conclude the trial court did not err in finding that it

rnust consider whether the employee had returned to work at an hourly rate equal to or

greater than his hourly rate as of the date of his work accident.

Next, Employee argues that working as an independent contractor does not satisfy

the criteria of section 207(3) because, under such circumstances, the injured worker is not

an "employee" working for an "employer" as those terms are defined in the Workers'

Compensation Law. We conclude this argument misconstrues the plain language of the

statute. The relevant sentence of section 207(3) describes two circumstances where an

employee may seek increased benefits: (1) if "the employee has not returned to work for

any employer;" or (2) if the employee has "returned to work . . . receiving wages or a salary

that is less than one hundred percent (100%) or the wages or salary the employee received

2In Batey v. Deliver This, Inc., 568 S.W.3d 91, 93 (Tenn. 2019), the Tennessee Supreme Court affirmed

and adopted "in its entirety" our opinion in Batey v. Deliver This, Inc., No. 2016-05-0666, 2018 TN Wrk.

Comp. App. Bd. LEXIS 2 (Tenn. Workers' Comp. App. Bd. Feb. 6, 2018).

6

from the employee's pre-injury employer on the date of the injury." Tenn. Code Ann. §

50-6-207(3)(B). The second of those two scenarios does not indicate that the injured

worker must return to work as a "W2 employee"; it merely requires that the injured worker

"return to work" earning "wages or a salary." Id. Here, Employee stipulated that, as of the

date his initial compensation period ended, he was working as an independent contractor

for two different companies, each of which was compensating him on an hourly basis.

Thus, we agree with the trial court that, in the circumstances of this case, Employee

"returned to work" as of the date his initial compensation period ended and was "receiving

wages."

The more difficult question concerns how a court is to compare the "wages" of a

worker who has returned to work as an independent contractor to his or her pre-injury

wages as a traditional "W2 employee." In Corso v. Accident Fund Ins. Co., No. M2015-

01859-SC-R3-WC, 2016 Tenn. LEXIS 630 (Tenn. Workers' Comp. Panel Sept. 2, 2016),

the Supreme Court's Special Workers' Compensation Appeals Panel emphasized that the

"correct[] 'apples to apples' comparison for purposes of determining whether [an

employee] returned to work at a wage equal to or greater than the wage he was receiving

prior to his injuries is between the 'base pay' of the two jobs." Id. at *21. We adopted that

analysis in Matthews v. Family Dollar Stores of Tenn., LLC, No. 2021-06-1175, 2023 TN

Wrk. Comp. App. Bd. LEXIS 42, at *26-27 (Tenn. Workers' Comp. App. Bd. Aug. 22,

2023).

It is well settled that an employee bears the burden of proving every essential

element of his or her clairn, including entitlernent to permanent disability benefits. See,

e.g., Harris v. Vanderbilt Univ. Med. Ctr., No. 2021-05-1136, 2022 TN Wrk. Comp. App.

Bd. LEXIS 34, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 9, 2022). Here, Employee

admitted he had returned to work as of the date his initial compensation period ended and

was working for two companies, one of which was paying him a higher hourly rate than

his pre-injury rate. Employee offered no evidence of the number of hours he worked for

each respective company in any given time period, and he did not assert or introduce

evidence indicating that his combined hourly rate, when considering his wages from both

companies, was less than his pre-injury rate. Moreover, he offered no evidence of the

amount of any overhead expenses related to his contract work that he believed should be

deducted from his pay before determining his effective hourly rate. Therefore, we conclude

the trial court did not err in comparing Employee's pre- and post-injury wages based on

the evidence presented at the hearing and in determining Employee did not qualify for

increased benefits under subsection 207(3)(B).

Finally, given our conclusions regarding Employee's first four issues, it is

7

unnecessary for us to address Employee's final issue, which is whether his decision not to

accept a company-mandated COVID-19 vaccine constituted "misconduct connected with

the Employee's employment" or a "voluntary resignation" that disqualified him from

seeking increased benefits.3

Conclusion

For the foregoing reasons, we affirm the trial court's order and certify it as final.

Costs on appeal are taxed to Employee.

3We note, as did the trial court, that Tennessee's General Assembly enacted a law, signed by the Governor

with an effective date of November 12, 2021, that prohibited Tennessee employers from taking any adverse

employment action based on an employee's refusal or failure to show proof of his or her COVID-19

vaccination status. However, that law went into effect after Employee's separation from Employer.

8

01/23/2025

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

MARK GRAY v. TYSON FOODS, INC.

Appeal from the Workers’ Compensation Appeals Board

Court of Workers’ Compensation Claims

No. 2021-07-0545, Amber E. Luttrell, Judge

___________________________________

No. W2024-00447-SC-WCM-WC

___________________________________

JUDGMENT ORDER

This case is before the Court upon the motion for review filed by Mark Gray

pursuant to Tennessee Code Annotated section 50-6-225(a)(5)(A)(ii), the entire record,

including the order of referral to the Special Workers’ Compensation Appeals Panel, and

the Panel’s Opinion setting forth its findings of fact and conclusions of law.

The motion for review is denied. The Panel’s findings of fact and conclusions of

law, which are incorporated by reference, are adopted and affirmed. The decision of the

Panel is made the judgment of the Court.

Costs are assessed to Appellant, Mark Gray, for which execution may issue if

necessary.

It is so ORDERED.

PER CURIAM

JEFFREY S. BIVINS, J., not participating