Mitchell v. Fayetteville Pub. Utilities

• Decision Date: 08 May 2012
• Docket Number: No. M2011–00410–SC–R3–WC.,M2011–00410–SC–R3–WC.
• Citation: 368 S.W.3d 442
• Parties: Troy MITCHELL v. FAYETTEVILLE PUBLIC UTILITIES.
• Court: Tennessee Supreme Court

368 S.W.3d 442

Troy MITCHELL

v.FAYETTEVILLE PUBLIC UTILITIES.

No. M2011–00410–SC–R3–WC.

Supreme Court of Tennessee,

at Nashville.

Feb. 15, 2012 Session.

May 8, 2012.

B. Duane Willis, Jr., Nashville, Tennessee, for the appellant, Fayetteville Public Utilities.

Sonya W. Henderson, Murfreesboro, Tennessee, for the appellee, Troy Mitchell.

OPINION

GARY R. WADE, J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined. JANICE M. HOLDER, J., filed a separate dissenting opinion.

GARY R. WADE, J.

The trial court awarded workers' compensation benefits to an injured lineman who had violated a rule requiring the use of protective gloves while in a bucket lift. The employer appealed, contending that the statutory defenses of willful misconduct and, more particularly, the willful failure or refusal to use a safety appliance or device precluded recovery. The appeal was referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Code Annotated section 50–6–225(e)(3) (2008). After oral argument before the Panel, but before the Panel filed its opinion, the case was transferred to the full Court. Because the evidence establishes that the employee admitted his knowledge of a regularly enforced safety rule, understood the rationale for the rule, and willfully (rather than negligently or recklessly) failed to comply, the injuries he suffered because of the rule violation are not compensable. The judgment of the trial court is, therefore, reversed and the case is dismissed.

I. Facts and Procedural History

On January 5, 2009, Troy Mitchell (the “Employee”), a lead lineman for Fayetteville Public Utilities (the “Employer”), suffered electrical burns to his hands and his side. At the time, the Employee and his crew were replacing a forty-foot power pole with a new pole forty-five feet in height. While the Employee was in a bucket lift near the top of the new pole preparing to attach a lightning arrestor, a copper ground wire that he held in his bare hands came into contact with a transformer on the older, charged pole some five feet below. The Employee received an electrical shock of approximately 7,200 volts. Other members of the crew were able to return the bucket (also referred to as a cradle) to ground level where first responders rendered aid. The Employee was initially transported to a hospital in Huntsville, Tennessee. Because of the severity of his injuries, however, he was transferred to Vanderbilt Medical Center's burn unit where he was treated, primarily by orthopaedic surgeon Dr. Jeffry Watson.

Dr. Watson found that the most significant injuries were to the first webspaces of each hand—the area between the thumbs and the index fingers. Dr. Watson described the injuries as “full-thickness loss of his skin down into his muscle ... as well as into the nerves that go to the fingers or the index finger on the right side and more into the thumb on the left side.” Dr. Watson performed a total of eight surgeries—five on the left hand and three on the right. These procedures included cleaning the wounds, cutting away dead tissue, and removing healthy skin from the Employee's forearms and upper arm to suture into the hands. Following these surgeries, Dr. Watson ordered physical and occupational therapy over a ten-month period in an effort to reduce the swelling in the Employee's hands and increase strength and flexibility. ¹ Dr. Watson also treated the Employee for adhesive capsulitis in his shoulder—a condition where the shoulder becomes stiff and painful because of limitations in movement during a recovery period. Another physician treated the burn injuries to the Employee's side. Just over one year after the accident, the Employee was able to return to work in the same position he held at the time of the accident.

The Employee was thirty-six years old at the time of trial, had a high school education, and had previously worked as a cook, furnace technician, electrical apprentice, and electrical foreman. Certified as a general lineman, the Employee had worked for the Employer for over nine years. While having a satisfactory recovery based on the severity of his injuries, he continued to experience some numbness in his right index finger, a lack of strength in his grip, and “streak pain”—shooting pains through the arms that can last anywhere from five minutes to one hour. The injury to his side continued to cause some discomfort. The Employee was not taking any medications and had completed his physical therapy by the time of trial.

While conceding that the injury was employment-related, the Employer denied workers' compensation benefits because the Employee, while in the bucket lift, had removed his protective gloves before attempting to install metal staples in the crossarm of the pole, a violation of the Employer's safety policy. ² A benefit review conference did not produce a settlement, and afterward, the Employee filed suit. In response, the Employer asserted as a defense the Employee's willful misconductand, more particularly, his willful failure to use a safety appliance, as defined by Tennessee Code Annotated section 50–6–110(a) (2008).

At trial, counsel for the Employee and the Employer agreed that the four-element test set out in Nance v. State Industries, Inc., 33 S.W.3d 222, 226 (Tenn. Workers Comp.Panel 2000), controlled the disposition of the claim. The Employee and the Employer stipulated to the presence of three of the four elements identified in Nance as essential to bar recovery: that the Employer had in effect a policy requiring the Employee to wear protective gloves for safety purposes; that the Employer carried out strict, continuous, and bona-fide enforcement of the policy; and that the Employee had actual knowledge of the policy through his training program, including the danger involved in violating the policy. The central issue, therefore, was whether the Employee's removal of his gloves while in the performance of his duties qualified as a willful failure to use a safety appliance—the fourth element of the Nance test.

The Employee testified that he had worn his protective gloves when lifted in the bucket as he covered the “hot” lines on the lower pole with rubber blankets and hosing. Believing that he was in a “safe zone” and “clear” of the danger five feet below, he took off his gloves to hammer a metal staple, which was to secure a lightning arrestor into the crossarm of the new, taller pole. The Employee explained that it was easier to hammer without the gloves and, further, that he “didn't want to puncture a hole” in the gloves. After removing the gloves, he remembered being struck by a “ball of fire.” The Employee concluded that the copper ground wire he was handling at the time must have come into contact with the transformer on the older, lower pole. He further testified that because he had removed his gloves under similar circumstances on previous occasions, he did not believe that he was exposing himself to danger.

On cross-examination, the Employee candidly acknowledged that the Employer's policy was that “any time from cradle to cradle, which is when the bucket closes, ... you have to wear your rubber gloves if you're around anything hot....” He admitted that when he was “around” the hot wires, the rule required him to wear his gloves for safety reasons. He further understood that the Employer's policy required leather gloves as an additional covering to guard against puncturing the rubber gloves. He agreed that his gloves were in perfect condition and that he should have kept them on as he attached the staple. The Employee conceded that his failure to do so violated the safety rules. When asked whether he could hammer the staples with the gloves on, he responded, “Yes, but it's hard.” The Employee acknowledged that he had received a copy of the Employer's safety manual and had signed a receipt stating that it was his duty to “read, study, and abide by these safety rules and work procedures.” He also testified that on the morning of the accident, he had been briefed by his foreman as to the equipment necessary for that day and had signed a form which provided that he understood his responsibility to wear protective equipment while performing the work. In his written notice of injury, the Employee again acknowledged that he was required to wear protective gloves and further admitted to the Employer that use of the gloves was an adequate means of avoiding injuries of this nature. His supervisor, who assisted in the preparation of the report, included the observation that protective gloves would have prevented the Employee's injuries.

Chuck Barnes, the safety coordinator and building maintenance supervisor for the Employer, confirmed that the Employer's policy required the Employee to wear protective gloves while installing a switch and lightning arrestors on a crossarm. He testified that a puncture of any kind required the immediate replacement of the gloves. He stated that the gloves provided by the Employer were designed to handle approximately 30,000 volts.

Britt Dye, the CEO and general manager for the Employer, explained that if a glove was punctured or damaged in any way, the policy of the Employer was to provide new gloves at no cost or penalty to the employee. Dye further stated that, as a result of the violation, the Employee was suspended for three days without compensation, demoted in pay, and reduced in position for six months. He pointed out that the other members of the Employee's crew were also disciplined for the violation.

The trial court awarded benefits to the Employee, finding that the Employee had not acted willfully, within the meaning of the law, because he had plausible explanations for the removal of his gloves:

[R]emoving the gloves made it easier to staple.... It clearly was neither...