The opinion
FILED
August 2 .~ 20 l 7
TN <COURTOF
"\'\ ORKI.RS' COJi.WlNSATION
CLAIMS
Time9•:{1r7 AM
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT NASHVILLE
Terry Kidd, ) Docket No. 2017-06-0350
Employee, )
v. )
LSO Holding Corp., ) State File No. 3304-2017
Employer, )
And )
Travelers Casualty and Surety Co., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER FINDING COMPENSABILITY
Terry Kidd filed a Request for Expedited Hearing, which this Court heard on July
27, 2017. The parties requested that the Court decide only the issue of compensability.
LSO Holding Corporation denied compensability on grounds that Mr. Kidd's injury
resulted from prohibited "horseplay" that constituted willful misconduct. For the reasons
set forth below, the Court holds LSO failed to prove that Mr. Kidd's actions constituted
willful misconduct. Rather, Mr. Kidd's injury resulted from an assault arising out of and
in the course of his employment at LSO. Therefore, Mr. Kidd is likely to prevail at a
hearing on the merits in proving a compensable injury.
History of Claim
Mr. Kidd worked at LSO, a shipping service, as a delivery associate. On January
9, 2017, Mr. Kidd and a coworker, William Fisher, assisted each other outside the
building to load their respective vans with packages for the day's deliveries. Afterward,
when Mr. Kidd attempted to pass through a doorway, Mr. Fisher entered the building and
bear-hugged Mr. Kidd, lifted him up, held him for a few seconds and then forcefully
threw him to the floor. Video surveillance captured the event. Mr. Kidd suffered
immediate injury, fracturing his proximal left tibia. He received emergency care and
underwent surgery.
LSO admitted the event occurred and promptly investigated. Both LSO's internal
1
investigation report and the First Report of Injury purported a slip and fall as the
mechanism of injury. However, the next day, Mr. Kidd retracted the slip-and-fall
account in an email to his supervisor, Zakk Armstrong. He wrote that Mr. Fisher
"pick[ed] me up and drop me on the floor that's how I got my injury[.]" At the hearing,
Mr. Kidd admitted fabricating the slip-and-fall story because he did not want Mr. Fisher
fired.
Mr. Kidd and other witnesses related varying versions of the events preceding the
injury. Mr. Kidd's affidavit stated, "I did nothing to instigate the actions" of Mr. Fisher.
LSO offered testimony and/or written statements from five different witnesses. LSO's
fact witnesses included Mr. Armstrong, his supervisor; Lori Thurman, dispatcher; Mr.
Fisher; and Garry Lee, another co-worker. LSO also called Jim Stephens, director of
safety and compliance, to explain LSO's policy on horseplay.
Testimony portrayed the atmosphere on the loading dock, both generally and on
the morning of the injury. Mr. Kidd described it as a "laidback work environment. We
might joke and laugh as we're loading the truck up. . .. As long as you get your job
done, they're OK." He described the pre-injury events the morning of the injury as
"normal." Mr. Fisher called it a "joking around environment," while Mr. Lee agreed that
every morning everyone was 'joking around, kind of laughing, cutting up." Mr.
Armstrong stated that LSO generally permitted "lively talk" but not throwing or sliding
packages. For her part, Ms. Thurman said the LSO work environment is "pretty
laidback" and drivers occasionally slide boxes with their feet. On the morning in
question, Ms. Thurman observed excessive playfulness and encouraged Mr. Kidd and
Mr. Fisher to stop the "horse playing" and get their work done. Ms. Thurman specifically
recalled hearing laughter and seeing both men throw boxes. She said they threw the
boxes "hard" and one of them threw a box that missed the other's head. Mr. Fisher
described a similar event, but he changed his story after Mr. Lee asserted that the package
merely slid across the dock.
Mr. Lee recalled Mr. Fisher saying to Mr. Kidd, "I'ma get you," in reference to the
package incident. Mr. Kidd, Mr. Fisher and Mr. Lee did not characterize this statement
as threatening; rather, Mr. Fisher said it playfully. Ms. Thurman used the phrase
"horseplay" repeatedly during her testimony, as did Mr. Fisher and Mr. Lee. Mr. Kidd
and Mr. Lee characterized this as fairly standard behavior on the loading docks.
Mr. Fisher's written statement provides that, before the incident, Mr. Kidd and Mr.
Lee helped him load a truck, when Mr. Kidd:
[T]hrew a box at me and Hit [sic] my back then I told terry Ima get you
then I met up with Terry at the door then I picked him up acting like I was
about to slam him but I put him on his feet then IDK what happened after
that he just fell to the ground like his legs gave out on him[.] ... I didn't
2
intentionally slam him that wasn't on my mind me and terry are good
friends[.]
Mr. Lee offered a similar account in a statement, noting that Mr. Kidd and Mr.
Fisher "grabbed each other playing as men do you know fake wrestling." Ms. Thurman
wrote on a witness statement form that, "Terry was helping with load out of other driver.
I noticed they were playing around."
A few days after the incident, LSO denied the claim and terminated both Mr. Kidd
and Mr. Fisher.
As part of Mr. Kidd's training, he signed an acknowledgement of LSO's polices,
which states, "I UNDERSTAND horseplay is considered a serious safety violation and is
strictly prohibited." (Emphasis in original.) Additionally, the handbook lists as a ground
for immediate discharge "[ c]onduct that endangers the life, safety, or health of others."
Along these lines, LSO offered Mr. Stephens' testimony, who emphasized its policy
against "horseplay." However, Mr. Stephens provided no instance where LSO
disciplined an employee for horseplay at the Nashville location. Likewise, Mr. Fisher,
Mr. Lee and Ms. Thurman acknowledged they were unaware of LSO disciplining any
employee for horseplay. Ms. Thurman chastised Mr. Kidd and Mr. Fisher, observing at
the hearing that, "It looked unsafe to me," but she admitted that after scolding them she
"left it at that."
Findings of Fact and Conclusions of Law
Because this case is in the posture of an expedited hearing, Mr. Kidd must present
sufficient evidence from which the Court can determine he is likely to prevail at a hearing
on the merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). However, LSO bears the burden of proof on
the willful misconduct defense. Tenn. Code Ann.§ 50-6-110(b) (2016).
LSO does not dispute that the incident occurred but argues the injury is non-
compensable "horseplay." Both parties asserted that the Appeals Board has yet to
address a case involving horseplay. The Court agrees and consults pre-Reform Act law
for guidance.
As early as 1930, Tennessee courts have expressed disfavor toward claims
involving "horseplay" or "skylarking" resulting in injury where the employee was an
active participant. Borden Mills, Inc. v. McGaha, 161 Tenn. 376, 380-1 (Tenn. 1930).
Several decades later, the high court found an employee's horseplay - namely, the
"goosing" of a fellow employee that caused injury - did not arise out of the employment
but instead constituted willful misconduct. Ins. Co. of Am. v. Hogsett, 486 S.W.2d 730,
733-4 (Tenn. 1972). More recently, the Supreme Court again characterized horseplay
3
resulting in injury as willful misconduct under Tennessee Code Annotated section 50-6-
110(a). Rogers v. Kroger Co., 832 S.W.2d 538, 541 (Tenn. 1992).
In Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442, 453 (Tenn. 2012), the high
court revised the willful misconduct factors to eliminate "perverseness" in an analysis of
the term "willful." Instead, the Court outlined the following four-point analysis: (1) the
employee's actual, as opposed to constructive, notice of the rule; (2) the employee's
understanding of the danger involved in violating the rule; (3) the employer's bona fide
enforcement of the rule; and (4) the employee's lack of a valid excuse for violating the
rule. 1
Applying these factors, the Court finds Mr. Kidd had notice that LSO prohibited
horseplay, demonstrated by his signed acknowledgement during training. However, this
Court cannot conclude that Mr. Kidd fully understood the danger involved, despite this
training, given LSO's tolerance of a "joking around environment" and LSO's apparent
disregard of the rule. The Court cannot find that LSO strictly enforced the rule, given the
testimony of Ms. Thurman and Mr. Stephens that LSO disciplined no one for horseplay
previous to this incident. Considered as a whole, the Court cannot find the evidence
supports LSO's defense.
Further, common sense dictates that a horseplay defense does not apply when the
person injured did not participate in the horseplay. Here, Mr. Fisher suddenly picked Mr.
Kidd up and threw him to the ground. Perhaps the best evidence is the video. It clearly
depicts Mr. Kidd about to walk through a doorway, presumably to the loading dock,
when Mr. Fisher proceeded to pick him up, carried him for several seconds and then
threw him forcefully to the ground. Mr. Fisher essentially perpetrated an assault. Mr.
Kidd argued that whatever might have happened beforehand did not justify Mr. Fisher's
disproportionately violent response. The Court agrees and finds the more appropriate
focus is a workplace assault. 2
The Tennessee Supreme Court previously outlined categories of workplace
assaults, including "assaults with an inherent connection to employment such as disputes
over performance, pay, or termination." Woods v. Harry B. Woods Plumbing Co., 967
S.W.2d 768, 771 (Tenn. 1998). Assaults falling into this category are compensable. Wait
v. Travelers lndem. Co. oflll., 240 S.W.3d 220, 227 (Tenn. 2007).
Here, the precipitating "dispute" - albeit one lacking ill will - stemmed from an
interaction that occurred while, and was cultivated by, loading delivery vans. Mr. Kidd
and Mr. Fisher performed this task in a relaxed work environment. However, that does
1
The Appeals Board applied the Mitchell test under the Reform Act in several cases, including Gonzales
v. ABC Prof'/ Tree Servs., 2014 TN Wrk. Comp. App. Bd. LEXIS 2, at *21 (Nov. 10, 2014).
2
The amended Dispute Certification Notice lists "assault" as an issue.
4
not detract from the fact that the interaction while loading the delivery vans led to the
assault shortly afterward. "An injury arises out of employment when there is a causal
connection between the conditions under which the work is required to be performed and
the resulting injury." Johnson v. Wal-Mart Assoc., Inc., et al., 2015 TN Wrk. Comp.
App. Bd. LEXIS 18, at * 12 (July 2, 20 15) (citation omitted). The Courts finds a causal
connection between the conditions of the work on the morning in question and Mr.
Kidd's injury.
In conclusion, as a matter of law, Mr. Kidd presented sufficient evidence to
establish he is likely to prevail on compensability at a hearing on the merits.
The Court sets this matter for a Scheduling Hearing on October 9, 2017, at 8:45
a.m. Central Time. You must call 615-532-9552 or toll-free at 866-943-0025 to
participate in the Hearing. Failure to call in may result in a determination of the issues
without your further participation.
ENTERED this the 2nd day of August, 2017.
5
APPENDIX
Exhibits:
1. Terry Kidd Affidavit
2. Video recording
3. Employment documents
4. Deposition of Garry Lee
5. Garry Lee's written statement
6. Deposition of William Fisher
7. William Fisher's written statement
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Subpoena and Return on Service, Zakk Armstrong
5. Employer and Insurer's Witness and Exhibit List for Expedited Hearing
6. Employer and Insurer's Pre-Hearing Brief in Opposition to Employee's Request
for Benefits
7. Employee's Pre-Hearing Statement
8. Employee's legal authority
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on this the 2nd day of August, 2017.
Name Certified Via Via Service sent to:
Mail Fax Email
Michael Fisher, X mfisher@ddzlaw .com
Employee's Counsel
Chip Storey, X cstoreyj @travelers.com
Employer's Counsel
urn, Clerk of Court
Court o orkers' Compensation Claims
WC.CourtClerk@tn.gov
6