The opinion
FILED
Nov 05, 2018
11:02 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
LASHONDA SMITH, ) Docket No. 2018-06-0810
Employee, )
v. ) State File No. 31238-2018
MACY’S CORPORATE )
SERVICES, ) Judge Joshua Davis Baker
Employer. )
)
EXPEDITED HEARING ORDER
Ms. Smith requested temporary disability and medical benefits in an expedited
hearing on October 16, 2018. The issue is whether Ms. Smith is likely to prevail at
hearing on the merits in proving the injury she sustained while riding a bus home from
work occurred within the course and scope of her employment for Macy’s. Macy’s
argued she is unlikely to prevail as Macy’s did not provide the bus service and did not
pay or reimburse Ms. Smith for her transportation. The Court holds that Ms. Smith is
unlikely to prevail at a hearing on the merits because evidence is insufficient to prove that
Macy’s made a deliberate and substantial payment for the bus service.
Claim History
On November 29, 2017, Ms. Smith finished her shift at Macy’s distribution center
in Portland, Tennessee, and took a seat near the back of a Safe Harbor bus to Clarksville.
Safe Harbor, a charitable organization, operated the bus service between Clarksville and
Portland solely for Macy’s seasonal employees. Roughly fifty other employees boarded
the bus with Ms. Smith.
About thirty minutes into her ride, Ms. Smith smelled smoke and turned to see
flames at the back of the bus. She yelled for the driver to stop. He pulled to the roadside,
but in his distress, he fled without putting the bus in park. Panic ensued as the bus rolled
backward toward a creek-bed. Ms. Smith said, “Everybody began to scream, [as] the bus
started going off the road.” Ms. Smith struggled to escape from behind dozens of
passengers, all of whom were trying to exit the moving bus. Some passengers kicked out
windows and jumped. Ms. Smith scrambled to the door and grappled with her fear of
jumping versus facing the flames. She said, “I was just trying to get myself to jump . . . I
just remember jumping, and that was it.” She awoke in an ambulance.
After Ms. Smith received emergent care at NorthCrest Medical Center for her left
hip, she filed a workers’ compensation claim. Macy’s denied her claim, asserting the
injury did not occur within the course and scope of her employment because Safe Harbor
owned and operated the bus service. Further, Macy’s claimed it did not pay for or furnish
Safe Harbor’s transportation for employees. Ms. Smith did not receive medical treatment
after the denial.
Kyle Bennett, vice-president of the company that operates Safe Harbor, testified
by deposition. He described its business arrangement with Macy’s as “an industry first.”
Safe Harbor, a non-profit residential facility, offered “housing, transportation, and
employment services” for “those facing hard times [to] restore their faith in God.” For
other employers, Safe Harbor acted as a quasi-staffing agency. In those cases, Safe
Harbor collected money from businesses who employed residents, then paid the residents
wages minus the cost of their housing and transportation.
In 2015, Macy’s approached Safe Harbor “to assist in recruiting” seasonal
employment for its Portland distribution center. They entered into a direct hire recruiting
service agreement whereby Safe Harbor submitted prospective employees’ resumes to
Macy’s by email. If Macy’s hired the employee, it paid Safe Harbor “a margin fee” of
fourteen percent of that employee’s gross pay. Mr. Bennett testified, “If we assisted in
the recruiting and provided the transportation for them, then [Macy’s] did pay the
margin.” When counsel asked Mr. Bennett if Macy’s paid “the margin fee for every
employee on that bus,” he answered, “yes.” He also said Macy’s contracted with Safe
Harbor in part to provide transportation services, although he acknowledged the contract
did not reflect that understanding. He said Safe Harbor had buses dedicated to Macy’s
seasonal employees, and “ninety percent” of those using the bus service were “just people
in the community that Macy’s had hired” who had no affiliation to Safe Harbor.
Ms. Smith, a Clarksville resident without affiliation to Safe Harbor, explained how
her seasonal employment began during the 2016 and 2017 holiday seasons. In 2016, she
responded to Macy’s advertisements on billboards and flyers, and Macy’s directed her to
apply at Safe Harbor in Clarksville. Her 2016 application showed Macy’s designated her
as a “referral” of “Safe Harbor Staffing.” She rode the Safe Harbor bus to work for
Macy’s that year, and Safe Harbor deducted money directly from her bank account to
cover transportation costs. In 2017, Macy’s sent Ms. Smith mail and email to advertise
its seasonal employment. But this time, Macy’s directed her to a local Goodwill, instead
of to Safe Harbor, to complete an application. There, she met solely with Macy’s
representatives.
2
Ms. Smith explained Macy’s offered the Safe Harbor transportation service to its
seasonal employees again in 2017, but Macy’s deducted the transportation fee directly
from her paycheck. She and “most” others signed a Transportation Program Election
Form on Macy’s letterhead during orientation to allow the payroll deduction. The form
authorized Macy’s to deduct $20.00 from weekly paychecks to offset Safe Harbor’s
transportation costs and directed the employees “to abide by Macy’s policies regarding
the use of this program.” Macy’s also provided special employee-identification badges
for bus passes and gave employees Safe Harbor’s bus schedule.
Ms. Smith testified that Macy’s offer of transportation through Safe Harbor
enabled her to work. She said Macy’s in Portland is sixty miles from Clarksville. No
public transportation existed between the two cities. Alternative public transportation
cost $650 for a five-day workweek. Ms. Smith earned $358.75 as an average weekly
wage.
Holly Hubbs, Macy’s HR director for the Portland facility, provided information
about Macy’s seasonal employment, recruitment, and its relationship with Safe Harbor.
She testified Macy’s recruited in Clarksville to fulfill staffing demands for the holiday
season, recruiting “seventeen hundred” seasonal employees from Clarksville in 2017.
She “provided a head count to Safe Harbor” of those hired and riding the bus. While she
did not know “the exact number” of bus riders, it was “a lot.” Macy’s designated
Goodwill applicants as Safe Harbor recruits. Macy’s did not own or control the Safe
Harbor buses, only paid employees for hours worked in the facility, and did not
reimburse employees or otherwise pay for transportation. She explained Safe Harbor
asked Macy’s to deduct the transportation fee from employees’ paychecks in 2017
because it was burdensome to track and collect payment. She could not say what
“Macy’s Policies” meant on the election form, only saying Macy’s wanted employees to
behave respectfully while riding the bus.
Findings of Fact and Conclusions of Law
Ms. Smith need not prove every element of her claim by a preponderance of the
evidence to receive relief at an expedited hearing. Instead, she must present sufficient
evidence that she is likely to prevail at a final hearing. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
To prove compensability at a final hearing, Ms. Smith must establish her injury
arose primarily out of the course and scope of her employment with Macy’s. Tenn. Code
Ann. § 50-6-102(14) (2018). The “course of employment” means the time, place, and
circumstances of the injury, and the “arising out of” requirement refers to causation and
the causal connection between the work and the resulting injury. Dugger v. Home Health
Care of Middle Tennessee, LLC, 2016 TN Wrk. Comp. App. Bd. LEXIS 13, *14 (Mar.
3
16, 2016). Generally, an employee’s injuries while traveling to or from work are not
within the course of employment unless they occur on the employer’s premises. Hubble
v. Dyer Nursing Home, 188 S.W.3d 525, 534 (Tenn. 2006).
However, Tennessee has created exceptions to the “going and coming” rule where
“transportation is furnished by an employer as an incident of the employment.” Eslinger
v. F & B Frontier Const. Co., 618 S.W.2d 742, 744 (Tenn. 1981). When an employee
sustains an injury “going to and from work by means of transportation furnished by the
employer as ‘an incident of the employment’ or as part of the compensation afforded to
the employee,” the injury occurred in the course of his employment. Anderson v. Sam
Monday Motors, 619 S.W.2d 382, 383 (Tenn. 1981). Transportation provided by an
employer in the course of the employment is based on the extension of risks that are
under the employer’s control. Dugger, at *14. Consequently, many “going and coming”
cases involve employer-owned, employer-controlled transportation such as a horse,
motorcycle, train, or automobile. See McClain v. Kingsport Improvement Corp., 245
S.W. 837 (Tenn. 1922); W.C. Sharp Drug Stores v. Hansard, 144 S.W.2d 777 (Tenn.
1940); Norwood v. Tellico River Lumber Co., 244 S.W. 490, 491 (Tenn. 1922); Ward v.
Ward, 378 S.W.2d 754 (Tenn. 1964).
Yet for those transportation methods not owned or controlled by an employer,
such as an employee’s personal vehicle, an injury occurs in the course of employment
“where the employer makes a deliberate and substantial payment for the expense of
travel.” Pool v. Metric Constructors, Inc., 681 S.W.2d 543, 545 (Tenn. 1984). The
“furnishing of a vehicle by the employer is sufficient to place travel within the scope of
and in the course of employment,” as “there is little difference in principle between
furnishing an amount in cash equivalent to the value of the use of the employee’s own car
and furnishing the car itself.” Id.
Here, since Macy’s did not own or directly control the transportation offered to
Ms. Smith, the Court must determine whether Macy’s margin fee payments amounted to
a deliberate and substantial payment for its employees’ transportation. Macy’s paid Safe
Harbor fourteen percent of an employee’s gross pay if Safe Harbor “recruited” the
employee. However, it is difficult for the Court to discern what “recruitment” actually
entailed and the extent of Safe Harbor’s services for Macy’s. Ms. Smith did not become
aware of Macy’s employment opportunity from Safe Harbor, nor did Macy’s become
aware of Ms. Smith through Safe Harbor. Her testimony depicts Safe Harbor’s primary
role as providing inexpensive transportation so Macy’s could employ Clarksville
residents, whose travel would otherwise be cost-prohibitive, during the most demanding
season in retail. Yet, as a whole, it is unclear for whom Macy’s paid margin fees or for
what actual purpose. Thus, the Court cannot find Ms. Smith is likely to prevail in
proving Macy’s deliberately paid for her transportation.
4
Similarly, the Court cannot discern whether Macy’s made a “substantial payment
for the expense of travel” without knowing Safe Harbor’s transportation costs and
whether the margin fees covered some or all of those operational costs. Based on Ms.
Smith’s testimony, the Court finds commuting to Portland from Clarksville in her
personal vehicle cost Ms. Smith $282 per week. She paid Safe Harbor $20 per week.
Thus, the service provided substantial value to Ms. Smith, but the proof is insufficient to
show whether the margin fees amounted to a “substantial payment” for the expense of her
travel with Safe Harbor. The Court cannot find Ms. Smith is likely to prevail in proving
Macy’s made a substantial payment for her transportation.
While the proof demonstrated that Macy’s facilitated and offered this inexpensive
transportation to induce employees to accept employment, that fact alone does not bring
the transportation within the course and scope of Ms. Smith’s employment. Ms. Smith
testified the employment would not have been possible without Safe Harbor’s bus
service. The Court finds this testimony both reasonable and credible, as public
transportation did not exist and using a personal vehicle or a taxi service would have been
cost-prohibitive. Macy’s facilitated the service by providing the election form, the bus
schedule, the identification required to access the bus, paying fourteen percent “for every
rider on that bus,” and deducting a nominal payment for the transportation from its
employees’ paychecks. However, facilitating the transportation is not equivalent to
furnishing the transportation. Further, inducing Ms. Smith’s employment by facilitating
transportation without the employer exercising control over or deliberately, substantially
paying for the transportation is not sufficient to make that transportation a part of her
employment. Thus, the Court holds Ms. Smith is unlikely to prevail at a hearing on the
merits in proving she sustained an injury during the course and scope of her employment
with Macy’s.
IT IS, THEREOFRE, ORDERED as follows:
1. Ms. Smith’s request for workers’ compensation benefits is denied at this time.
2. This matter is set for a Status Conference on Monday, December 10, 2019, at
10:00 a.m. (CST). You must call 615-741-2113 or toll-free 855-874-0474 to
participate in the Hearing. Failure to call may result in a determination of issues
without your further participation.
ENTERED ON NOVEMBER 5, 2018.
________________________________________
Judge Joshua Davis Baker
Court of Workers’ Compensation Claims
5
APPENDIX
Exhibits:
1. Affidavit of Lashonda Smith
2. Notice of Claim Denial
3. Medical Bills
4. Affidavit of Holly Hubbs
5. Transportation Election Form
6. Wage Statement
7. Employment Application
8. Ms. Smith’s Deposition Transcript
9. Bus Schedule
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Ms. Smith’s Pretrial Brief
5. Macy’s Witness and Exhibit List
6
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 November 5, 2018.
Name Certified First Via Via Email Address
Mail Class Fax Email
Donald X dzuccarello@ddzlaw.com
Zuccarello,
Employee’s
Attorney
Garrett X gestep@farris-law.com;
Estep, kraybone@farris-law.com
Employer’s
Attorney
_______________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
Wc.courtclerk@tn.gov
7
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -
My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -
My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ _ ___
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ __ _
(FMV) - - - - - -- - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ _ __
(FMV) - - -- - - -- - -
)
Other $ _ _ _ __ Describe:_ _ _ __ _ _ _ _ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082