Barrett, Buster v. Lithko Contracting, Inc.

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Buster Barrett ) Docket Nos. 2015-06-0186

) 2015-06-0188

v. ) 2015-06-0189

)

Lithko Contracting, Inc., et al. ) State File Nos. 78378-2014

) 24788-2015

) 24789-2015

Appeal from the Court of Workers’ )

Compensation Claims )

Joshua D. Baker, Judge )

Affirmed and Remanded - Filed June 17, 2016

The employee, a concrete finisher with supervisory responsibilities, suffered injuries to

his shoulder, hip, and back as a result of an incident involving a pressurized hose used to

pour concrete. He was subsequently terminated for safety and quality concerns unrelated

to the incident for which he seeks benefits. Following an expedited hearing, the trial

court awarded medical benefits and denied temporary disability benefits based on a

finding that the employee was terminated for cause. The employee has appealed the

denial of temporary disability benefits. The sole issue on appeal is whether the evidence

preponderates against the trial court’s conclusion that the employee did not present

sufficient evidence at the expedited hearing to show he is likely to prevail at a hearing on

the merits regarding the basis for his termination and, therefore, was not entitled to

temporary disability benefits. We affirm the trial court’s decision and remand the case.

Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board, in which

Judge David F. Hensley and Judge Timothy W. Conner joined.

Jill Draughon, Nashville, Tennessee, for the employee-appellant, Buster Barrett

John Barringer, Nashville, Tennessee, for the employer-appellee, Lithko Contracting,

Inc., and Ace American Insurance/Gallagher Bassett Services, Inc.

Wm. Ritchie Pigue, Nashville, Tennessee, for the employer-appellee, Lithko Contracting,

Inc., and Travelers Insurance Company

1

Factual and Procedural Background

Buster Barrett (“Employee”), a resident of Robertson County, Tennessee, suffered

injuries to his back, hip, and shoulder on August 27, 2014, while employed by Lithko

Contracting, Inc. (“Employer”). On that date, Employee was supervising a crew of

workers pouring concrete when the worker operating the hose dispensing wet concrete

was splashed in the face and got concrete in his eyes. The worker dropped the hose and

Employee grabbed it to prevent it from hitting him and possibly damaging equipment. At

that point, the pump directing the flow of the concrete caused the hose, which weighed at

least twenty-five pounds, to jerk and Employee to twist, resulting in his injuries.

Employee did not seek medical treatment and continued to work. Several months

later, on January 15, 2015, Employee stepped in an “isolation hole” and aggravated the

symptoms in his back.1 He suffered an additional increase in symptoms on January 21,

2015, when he stepped in a tire rut while walking at a jobsite. He did not request medical

treatment after these incidents, and his testimony at the expedited hearing reflects that he

believed he could continue working in the supervisory role he had been performing.

However, the pain became severe enough that on February 4, 2015, he could no longer

delay seeking medical treatment and eventually went to see his treating physician for a

separate work-related neck injury. Employee was terminated on February 9, 2015 for

safety and quality issues in connection with his supervisory responsibilities.

On September 1, 2014, Employer’s workers’ compensation insurance carrier

changed from Ace American Insurance, administered by Gallagher Bassett Services, Inc.,

to Travelers Insurance Company. While the parties did not dispute that Employee

suffered compensable injuries, the insurance carriers disputed the correct date of injury,

resulting in neither carrier providing benefits.

At the expedited hearing, Employer presented the testimony of three witnesses

regarding its decision to terminate Employee. These included William Phelps,

Employee’s supervisor and the operations manager for the Nashville area; Philip

Maciula, the manager in charge of safety; and Christopher Dittman, the manager of

Employer’s Nashville division. These witnesses testified that Employee was in a

supervisory position over workers who failed to use proper safety equipment at a jobsite

on January 5 and January 20, 2015, resulting in safety violations. While acknowledging

that Employee had not received any written disciplinary actions in the past, they asserted

Employee had failed to conduct required daily planning and safety meetings and had

failed to properly supervise the employees who violated safety rules.

1

It appears from the record that an “isolation hole” is an area around a column or vertical support into

which concrete is poured separately from the rest of the floor.

2

Employer’s witnesses also testified regarding various quality concerns related to

several projects under Employee’s supervision. As a result of poor quality, Employer

had to redo and/or repair certain aspects of the work, thereby suffering monetary losses

associated with substandard work. Employer’s witnesses testified that, despite having

had no quality or safety complaints regarding Employee prior to the incidents described

at the expedited hearing, the problems with his job performance in 2014 and 2015 made it

difficult for Employer to rely on him to supervise and complete projects consistent with

the company’s expectations. Thus, his employment was terminated.

Employee offered a different perspective on the reason for his termination,

observing that in the nearly twenty years he worked for Employer, he had not been

disciplined for safety or quality issues. According to Employee, it was only after he

reported the August 27, 2014 work injury that Employer began to find fault with his job

performance. With respect to the individual instances of safety violations described by

Employer at the hearing, Employee denied fault in each. Regarding the January 5, 2015

safety violation, Employee testified that he was not the only supervisor at the jobsite that

day and that he was not the supervisor who conducted the meeting that morning

regarding expectations for the job. Concerning the January 20, 2015 safety violation,

Employee testified that he had merely stopped by the jobsite to drop off equipment and

left to meet another worker at a different jobsite. Employer’s witnesses indicated they

were unaware that Employee had to be at a different jobsite but that, even so, compliance

with safety regulations fell within the supervisory duties of Employee at that time.

In addition to the safety violations, Employee testified regarding the issues

Employer raised as to the quality of the work. Employer took issue with the quality of

the work at several different sites, and Employee responded that, regarding one location,

he was working at a different jobsite on the date the poor quality work was performed.

Regarding another location, Employee testified that a piece of equipment had broken and

another had to be relocated from another site, taking time and resulting in the poor quality

product. Employee also testified that the quality control complaints raised by Employer

were impacted by weather conditions outside his control, as well as defective equipment.

Following an expedited hearing, the trial court found that the date of injury was

August 27, 2014, that Employee was entitled to medical benefits, and that Ace American

Insurance was responsible for the payment of those benefits. These findings have not

been challenged on appeal. The trial court also ruled that Employee was not entitled to

temporary disability benefits because he had been terminated for cause. Employee has

appealed that determination.

Standard of Review

The standard of review to be applied by this Board in reviewing a trial court’s

decision is statutorily mandated and limited in scope. Specifically, “[t]here shall be a

3

presumption that the findings and conclusions of the workers’ compensation judge are

correct, unless the preponderance of the evidence is otherwise.” Tenn. Code Ann. § 50-

6-239(c)(7) (2015). The trial court’s decision must be upheld unless the rights of a party

“have been prejudiced because findings, inferences, conclusions, or decisions of a

workers’ compensation judge:

(A) Violate constitutional or statutory provisions;

(B) Exceed the statutory authority of the workers’ compensation judge;

(C) Do not comply with lawful procedure;

(D) Are arbitrary, capricious, characterized by abuse of discretion, or

clearly an unwarranted exercise of discretion;

(E) Are not supported by evidence that is both substantial and material

in the light of the entire record.”

Tenn. Code Ann. § 50-6-217(a)(3) (2015). Like other courts applying the standards

embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court

absent the limited circumstances identified in the statute.

Analysis

Employee argues the evidence preponderates against the trial court’s conclusion

that he was terminated for cause. Accordingly, he asserts the trial court’s finding on that

issue should be reversed and temporary disability benefits should be awarded. We

disagree.

As the name implies, an injured worker is entitled to temporary partial disability

benefits, a category of vocational disability distinct from temporary total disability, when

the temporary disability is not total. See Tenn. Code Ann. § 50-6-207(1)-(2) (2015).

Specifically, while temporary total disability refers to the employee’s condition while

completely unable to work because of the injury until the worker recovers as far as the

nature of the injury permits, “[t]emporary partial disability refers to the time, if any,

during which the injured employee is able to resume some gainful employment but has

not reached maximum recovery.” Williams v. Saturn Corp., No. M2004-01215-WC-R3-

CV, 2005 Tenn. LEXIS 1032, at *6 (Tenn. Workers’ Comp. Panel Nov. 15, 2005).

However, even though an employee has a work-related injury for which temporary

benefits are payable, the employer is entitled to enforce workplace rules. See Carter v.

First Source Furniture Grp., 92 S.W.3d 367, 368 (Tenn. 2002). Thus, an employee’s

termination due to a violation of a workplace rule may relieve an employer of its

obligation to pay temporary disability benefits if the termination was related to the

workplace violation. See Marvin Windows of Tenn., Inc. v. Gardner, No. W2011-01479-

WC-R3-WC, 2012 Tenn. LEXIS 403, at *9 (Tenn. Workers’ Comp. Panel June 8, 2012).

When confronted with such a case, courts must “consider the employer’s need to enforce

4

workplace rules and the reasonableness of the contested rules.” Id. at *10. An employer

will not be penalized for enforcing a policy if the court determines “(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).

In this case, it is undisputed that Employee worked until his termination on

February 9, 2015, and that he had been under restrictions being accommodated by

Employer. After hearing the testimony of Employee and Employer’s three witnesses, the

trial court concluded:

While the timing of his termination raised some question as to motive, the

testimony from Mr. Dittman and Mr. Phelps demonstrated [Employer] had

a valid reason for his firing. Mr. Phelps testified [Employer] was

concerned with what it regarded as [Employee’s] lax attitude toward safety

issues, performance, and job quality issues. Mr. Dittman corroborated this

testimony when he stated: “It was our inability to appropriately plan—plan

the work and do it in a safe manner and do it with quality, and our inability

to do a DPP on a daily basis that would address all of the issues that we

were having on an ongoing manner.” Though not completely supportive,

the totality of the evidence tended to support this testimony by showing

[Employee] failed to conduct regular safety and planning meetings and was

in a supervisory role when two serious safety violations occurred.

Additionally, [Employer] pointed to concerns about work quality and cost

overruns. While all were not directly attributable to [Employee’s] work, at

least some of the quality and cost issues were.

Consequently, the trial court found that Employee was terminated for cause and,

therefore, was not entitled to temporary disability benefits.

The testimony presented by the parties was conflicting, and the trial court had to

resolve those conflicts. After careful consideration of the record, we cannot conclude

that the evidence preponderates against the trial court’s decision. The trial judge heard

the testimony and found Employer had presented sufficient evidence that it had good

cause to terminate Employee for reasons unrelated to his work injuries. See Tryon v.

Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008) (When the trial court has seen and

heard the witnesses, considerable deference must be afforded the trial court’s factual

findings.). There is insufficient evidence to disturb that conclusion. Accordingly, we

affirm the trial court’s determination that Employee was terminated for cause and the

resulting denial of temporary disability benefits.

5

Before concluding, we note that Employer and Travelers Insurance Company, the

insurer as of September 1, 2014, argue that Employee’s “request” for an interlocutory

appeal “should be denied.” They assert that the denial of temporary disability benefits is

not dispositive of the entire claim and “until the entire case is decided, no interlocutory

appeal is justified.”

Traditionally, a party seeking to appeal a pretrial determination of a trial court in a

workers’ compensation case was required to file an application for permission to appeal,

and the appellate court would then decide whether to grant or deny review. See Tenn. R.

App. P. 9 and 10. Thus, the appeal was discretionary, as opposed to an appeal as of right.

The Reform Act of 2013 changed this. Now, a party seeking to challenge a trial court’s

rulings prior to trial must file a notice of appeal, which Employee in this case did, and

assuming the appeal is properly perfected, we must resolve the appeal. See Tenn. Code

Ann. § 50-6-217(a)(2)(A) (2015). In other words, an interlocutory appeal to this Board is

an appeal as of right. Thus, contrary to Employer’s assertion, there is no “request” for an

appeal for us to deny.

Conclusion

For the foregoing reasons, we hold that the evidence does not preponderate against

the trial court’s decision. Nor does the trial court’s decision violate any of the standards

set forth in Tennessee Code Annotated section 50-6-217(a)(3). Accordingly, the trial

court’s decision is affirmed and the case is remanded for any further proceedings that

may be necessary.

6

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Buster Barrett ) Docket No. 2015-06-0186

) State File No. 78378-2014

v. )

) Docket No. 2015-06-0188

Lithko Contracting, Inc., et al. ) State File No. 24788-2015

)

) Docket No. 2015-06-0189

Appeal from the Court of Workers’ ) State File No. 24789-2015

Compensation Claims )

Joshua Davis Baker, Judge )

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 17th day of June, 2016.

Name Certified First Class Via Fax Via Email Address

Mail Mail Fax Number Email

Jill Draughon X jdraughon@hughesandcoleman.com

John Barringer X jbarringer@manierherod.com

Wm. Ritchie Pigue X rpigue@tpmblaw.com

Patrick Ruth X patrick.ruth@tn.gov

Joshua Davis Baker, 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

Matthew Salyer

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-1606

Electronic Mail: Matthew.Salyer@tn.gov