Woodard, Denny v. Freeman Expositions, LLC

FILED

Jul 16, 2021

09:10 AM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Denny Woodard ) Docket No. 2018-06-2162

)

v. ) State File No. 69647-2018

)

Freeman Expositions, LLC, et al. )

)

)

Appeal from the Court of Workers’ ) Heard June 24, 2021

Compensation Claims ) via Microsoft Teams

Joshua D. Baker, Judge )

Affirmed in Part, Vacated in Part, and Remanded

In this second interlocutory appeal, the employee appeals the trial court’s denial of his

request for temporary partial disability benefits. After the first expedited hearing, the trial

court concluded the employee did not violate a safety rule such that his claim was barred

and awarded medical benefits and temporary total disability benefits. Thereafter, the

employee was unable to return to work for the employer because he refused to undergo a

drug rehabilitation program after testing positive for marijuana. The employer asserted

that, but for the positive drug screen, which prevented it from re-hiring the employee, it

would have offered the employee work within his restrictions. The trial court found the

employer was justified in terminating the employee for drug use and, therefore, the

employee was not entitled to temporary partial disability benefits. The employee has

appealed, asserting that such a decision is unsupported by the law. In addition, the

employer asserts the trial court incorrectly calculated the amount of its credit for overpaid

temporary disability benefits. Having carefully reviewed the record, we affirm in part and

vacate in part the trial court’s expedited hearing order and remand the case.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge

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

Denty Cheatham, Nashville, Tennessee, for the employee-appellant, Denny Woodard

Daniel C. Todd, Nashville, Tennessee, for the employer-appellee, Freeman Expositions,

LLC

1

Factual and Procedural Background

Denny Woodard (“Employee”) was working for Freeman Expositions, LLC

(“Employer”), at Music City Center in Nashville as a stagehand when, on September 11,

2018, he suffered injuries as a result of a cart tipping over and falling on him. Employee

was a member of the International Alliance of Theatrical Stage Employees, a union that

provided stagehands to organizations that put on various kinds of events, such as trade

shows and conferences. At the time of the accident, Employee was moving a cart loaded

with Masonite, a material used to protect a hosting venue’s floors during set-up and tear-

down of events.

Employer initially provided workers’ compensation benefits, but it later denied

Employee’s claim on the basis of a drug screen that was positive for the presence of THC,

the active ingredient in marijuana, and oxycodone. Employee admitted he had smoked

marijuana at a union picnic sometime between two and nine days prior to the accident, but

he denied having smoked it the day of the accident or being under the influence of any

drugs at the time of the accident. He acknowledged that his drug test was positive for

oxycodone but explained he had been given Percocet for his pain at the hospital, which he

claimed accounted for the positive drug test. Employer also raised the affirmative defense

of willful misconduct, asserting Employee violated a known safety rule by pulling rather

than pushing the cart loaded with Masonite.

Following an expedited hearing, the trial court determined Employee would likely

prevail at trial with respect to his request for additional medical care and temporary total

disability benefits for the period of time Employee was taken off work by his treating

physician. Employer appealed, and we affirmed the decision of the trial court.

Employee returned to his authorized physician, who provided treatment and

recommended surgery. The physician also assigned work restrictions, which Employer

indicated it would have been able to accommodate had Employee not been terminated due

to his positive drug screen. Employee acknowledged that he tested positive for marijuana;

however, he declined to attend drug rehabilitation, asserting he was unable to afford a drug

treatment program and did not need one. As a result, Employer declined to extend any

offers of continued employment. 1 Employee filed a motion seeking to compel Employer

to pay temporary partial disability benefits, asserting that Employer’s rationale for failing

to return him to work is irrelevant. Employer, on the other hand, asserted that because it

had terminated Employee for cause, it was no longer obligated to pay temporary partial

disability benefits.

1

Employer’s decision not to allow Employee to return to work due to the failed drug screen did not affect

his status with the union. Greg Barbour, the union president, testified that Employee can continue to work

at other union jobs, although he will not be sent on any jobs until he is released by his physician.

2

During a second expedited hearing, Employer’s representative, Michael Malzone,

testified by declaration that Employer’s policy is to provide modified duty to workers who

are under physical restrictions due to a work injury. Further, the declaration stated that it

is also Employer’s policy and a part of the collective bargaining agreement between

Employer and Employee’s union that union members who test positive for illicit drugs may

be given a single opportunity for rehabilitation and conditional reinstatement. Greg

Barbour, the union president, testified that if an employee fails a drug test, he or she is

given a single chance to complete a rehabilitation program and, if the employee does not

complete the program or fails a second drug test, he or she will no longer be eligible to

work for Employer. At the conclusion of the hearing, the trial court agreed with Employer

and denied Employee’s request for benefits. Employee has appealed.

Standard of Review

The standard we apply in reviewing a 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) (2020). When the trial judge has had the opportunity

to observe a witness’s demeanor and to hear in-court testimony, we give considerable

deference to factual findings made by the trial court. Madden v. Holland Grp. of Tenn.,

Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be

afforded the trial court’s findings based upon documentary evidence.” Goodman v.

Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.

Workers’ Comp. Panel Jan. 18, 2018). Similarly, 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 (2020).

Analysis

Employee raises essentially a single issue on appeal: whether an employee who is

able to perform modified duty but has been terminated for cause is entitled to temporary

partial disability benefits. We have previously answered this question in the negative. See

Jones v. Crencor Leasing and Sales, No. 2015-06-0332, 2015 TN Wrk. Comp. App. Bd.

LEXIS 48 (Tenn. Workers’ Comp. App. Bd. Dec. 11, 2015). However, Employee asserts

our decision in Jones was not based on precedent and “amounted to unlawful judicial

legislation” in favor of employers and is contrary to our statutory mandate to interpret the

workers’ compensation statutes in a manner that does not favor either the employer or the

employee. See Tenn. Code Ann. § 50-6-116 (2020). We disagree and decline Employee’s

invitation to overturn our decision in Jones.

3

The workers’ compensation statutes provide two types of temporary disability

benefits: temporary total disability benefits and temporary partial disability benefits. See

Tenn. Code Ann. § 50-6-207. To qualify for temporary total disability benefits, an

employee must establish: (1) that he or she became disabled from working due to a

compensable injury; (2) that there is a causal connection between the injury and the

inability to work; and (3) the duration of the period of disability. See Simpson v. Satterfield,

564 S.W.2d 953, 955 (Tenn. 1978). Temporary partial disability benefits, a category of

vocational disability distinct from temporary total disability, is available when the

temporary disability is not total. See Tenn. Code Ann. § 50-6-207(1)-(2) (2020).

Specifically, “[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). Thus, in

circumstances where the treating physician has released the injured worker to return to

work with restrictions prior to the worker reaching maximum recovery, and the employer

either (1) cannot return the employee to work within the restrictions or (2) cannot provide

restricted work for a sufficient number of hours and/or at a rate of pay equal to or greater

than the employee’s average weekly wage on the date of injury, the injured worker may be

eligible for temporary partial disability. Heard v. Carrier Corp., No. 2017-08-1070, 2018

TN Wrk. Comp. App. Bd. LEXIS 16, at *5 (Tenn. Workers’ Comp. App. Bd. Apr. 20,

2018). Neither situation is present here.

Employer argues that Employee is not entitled to temporary partial disability

benefits for two reasons: (1) his termination for cause due to a positive drug screen, and

(2) his failure to attend a drug rehabilitation program as required by Employer’s policy and

the terms of the collective bargaining agreement. Employee contends that an employer’s

reasons for not returning an injured employee to work are irrelevant in determining whether

the employee is entitled to temporary disability benefits and that our decision in Jones

encourages employers to terminate injured workers while claiming to have light duty

available as a pretext to avoid paying temporary disability benefits. We disagree with

Employee’s contentions.

First, Employee asserts that our decision in Jones expanded existing case law in

Tennessee to include issues of temporary disability benefits when prior case law addressed

“for cause” terminations only in the context of permanent disability benefits and the

application of the pre-2013 Reform Act statutory cap. In Jones, we determined that an

employee who had been terminated for cause for falsifying time sheets was not entitled to

temporary partial disability benefits. In reaching our decision, we cited Carter v. First

Source Furniture Group, 92 S.W.3d 367 (Tenn. 2002), for the principle that an employer

“should be permitted to enforce workplace rules without being penalized” for doing so. Id.

at 371. Despite Employee’s insistence that we erroneously applied this principle, the

Supreme Court’s Special Workers’ Compensation Appeals Panel cited our conclusion with

favor in a post-reform case involving temporary disability benefits, stating:

4

[E]ven though an employee has a work-related injury for which temporary

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

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. To make this

determination, the court must consider the employer’s need to enforce

workplace rules and the reasonableness of the contested rules. 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

expectation[s]; and (2) that those actions were, as a factual matter, the true

motivation for the dismissal.

Duty v. East Tenn. Children’s Hosp. Ass’n, Inc., No. E2017-02027-SC-R3-WC, 2018

Tenn. LEXIS 201, at *10-11 (Tenn. Workers’ Comp. Panel Apr. 18, 2018) (citing Barrett

v. Lithko Contracting, Inc., Nos. 2015-06-0186, 2015-06-0188, 2015-06-0189, 2016 TN

Wrk. Comp. App. Bd. LEXIS 70, at *9-10 (Tenn. Workers’ Comp. App. Bd. June 17,

2016)) (internal quotation marks omitted). Thus, contrary to Employee’s argument, this

principle has been applied by Tennessee’s appellate courts in the context of temporary

partial disability benefits.

Second, while Employee implies Employer’s reason for not returning Employee to

work is pretextual, Employee has offered no evidence supporting such a contention.

Moreover, Employee’s argument does not take into account that a pretextual termination

has other avenues of legal redress. See Carter, 92 S.W.3d at 372 (“the law of retaliatory

discharge protects employees from this behavior”).

Accordingly, we find no merit in Employee’s insistence that our decision in Jones

amounted to judicial legislation. Employee was terminated for cause after his positive drug

screen and refusal to attend a rehabilitation program in accordance with Employer’s stated

policy and the terms of the collective bargaining agreement. Employee has presented no

evidence to suggest the termination was pretextual or that Employer’s representative was

untruthful when he stated in his declaration that Employer could have provided modified

duty. Consequently, we conclude the preponderance of the evidence supports the trial

court’s determination that Employee was not entitled to temporary partial disability

benefits.

Finally, Employer asserts on appeal that the trial court miscalculated the amount of

credit to which it is entitled for previously-paid temporary disability benefits. The trial

court noted in a footnote that it had previously awarded fifteen weeks of temporary

disability benefits rather than the six weeks Employer owed. As a result, the court modified

its initial expedited hearing order, noting that, because Employer had paid $3,288.15

pursuant to the court’s order rather than $1,315.26, Employer would be entitled to a credit

5

of $1,972.89. However, Employer also asserts it had paid $696.75 in temporary disability

benefits prior to its denial of the claim, which was not accounted for in the trial court’s

calculations. Accordingly, we vacate the portion of the trial court’s order addressing

Employer’s credit for overpaid temporary disability benefits and remand the case for the

trial court to reconsider and, if necessary, recalculate the credit to which Employer is

entitled.

Conclusion

For the foregoing reasons, we affirm in part and vacate in part the trial court’s

February 16, 2021 expedited hearing order and remand the case. Costs on appeal have

been waived.

6

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Denny Woodard ) Docket No. 2018-06-2162

)

v. ) State File No. 69647-2018

)

Freeman Expositions, LLC, et al. )

)

)

Appeal from the Court of Workers’ ) Heard June 24, 2021

Compensation Claims ) via Microsoft Teams

Joshua D. 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 16th day

of July, 2021.

Name Certified First Class Via Via Sent to:

Mail Mail Fax Email

Daniel C. Todd X dan@dantoddlaw.com

Denty Cheatham X dcheatham.cpg@gmail.com

Joshua D. Baker, Judge X Via Electronic Mail

Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov

Workers’ Compensation Claims

Olivia Yearwood

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-1606

Electronic Mail: WCAppeals.Clerk@tn.gov