Nance v. State Indus. 33 S.W.3d 222 (Tenn.)

• Citation: 33 S.W.3d 222
• Decision Date: 27 December 2000
• Docket Number: No. M1999-02262-WC-R3-CV,M1999-02262-WC-R3-CV
• Parties: WADE NANCE v. STATE INDUSTRIES, INC., and ITT HARTFORD INSURANCE CO.
• Court: Tennessee Supreme Court — Special Workers' Compensation Appeals Panel

33 S.W.3d 222

WADE NANCE v STATE INDUSTRIES, INC., and ITT HARTFORD INSURANCE CO.

No. M1999-02262-WC-R3-CV

SUPREME COURT OF TENNESSEE, SPECIAL WORKERS' COMPENSATION APPEALS PANEL, AT NASHVILLE

December 27, 2000, Filed

COUNSEL: Donald D. Zucarello, Nashville, Tennessee, for the appellant, Wade Nance.

Gina L. Zylstra, Nashville, Tennessee, for the appellees, State Industries and ITT Hartford Insurance Company.

JUDGES: FRANK F. DROWOTA, III, J., delivered the opinion of the court, in which JOHN A. TURNBULL, SP.J., and FRANK G. CLEMENT, JR., SP.J., joined.

OPINION BY: FRANK F. DROWOTA, III

OPINION MEMORANDUM OPINION

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employee contends that the trial court erred in finding that the employee's conduct amounted to a willful failure or refusal to use a safety appliance pursuant to Tenn. Code Ann. § 50-6-110(a). To clarify this area of workers' compensation law, the panel adopts a new standard which requires the employer to prove four elements in order to make out the affirmative defense of willful failure or refusal to use a safety appliance. The Panel vacates the trial court's judgment and remands the case for a new trial in which the new standard will be applied.

The issue in this workers' compensation appeal is whether the employee's willful failure or refusal to use a safety appliance required by the employer bars an award of workers' compensation benefits pursuant to Tenn. Code Annotated § 50-6-110(a)(1999).

Tenn. Code Ann. § 50-6-110(a), provides:

No compensation shall be allowed for an injury or death due to the employee's willful misconduct or intentional self-inflicted injury, or due to intoxication or illegal drugs, or willful failure or refusal to use a safety appliance or perform a duty required by law.

In addition, Tenn. Code Ann. § 50-6-110(b) provides that "if the employer defends on the ground that the injury arose in any or all of the above stated ways the burden of proof shall be on the employer to establish such defense." Consequently, the defenses listed in § 50-6- 110(a) are affirmative defenses. See Rule 8.03, Tenn. R. Civ. P. 1

Our research discloses that although there are numerous Tennessee cases pertaining to the more general defense of "willful misconduct," 2 there are relatively few Tennessee cases considering the issue of an employee's alleged willful failure or refusal to use a safety appliance. 3 Cordell v Kentucky-Tennessee Light & Power Co., 173 Tenn. 596, 121 S.W.2d 970 (1938); Knoxville Power & Light Co. v. Barnes, 156 Tenn. 184, 299 S.W. 772 (1927); overruled in part by, Standard Glass Co. v. Wallace, 189 Tenn. 213, 218, 225 S.W.2d 35 (Tenn. 1949); Nashville, C. & St. L. Ry. v. Coleman, 151 Tenn. 443, 269 S.W. 919 (1924); Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355 (1924); and Nashville, C. & St. L. Ry. v. Wright, 147 Tenn. 619, 250 S.W. 903 (1923). The general rule from these cases was stated in Nashville, C. & St. L. Ry. v. Wright:

according to the great weight of authority, "willful failure" to observe a safety rule or use a safety appliance is not a mere voluntary failure. Otherwise contributory negligence would defeat a recovery under a compensation statute. Willful misconduct means something more than negligence. It carries the idea of deliberation and intentional wrongdoing.

Id., 147 Tenn. at 623, 250 S.W. at 904.

While the preceding statement of law is correct, we conclude that the law applicable to the defense of willful failure or refusal to use a safety appliance should be clarified. Accordingly, we adopt the following standard to be applied in such cases. This standard is intended to further the underlying purpose of Tenn. Code Ann. § 50-6-110(a), which is to promote safety in the workplace.

I. Elements of Willful Failure or Refusal to Use Safety Appliance

In light of Tenn. Code Ann. § 50-6-110(b), we turn to a consideration of the elements the employer must prove in order to carry its burden of proof on the affirmative defense of willful failure or refusal to use a safety appliance. Based upon the Tennessee case law on this issue and on the related issue of "willful misconduct" in general, as well as the discussion of this topic in 2 Lex K. Larson, Workers' Compensation Law, §§ 32 - 35 (1997) ("Larson"), we hold that to establish this defense, the employer must prove that:

1. at the time of the injury the employer had in effect a policy requiring the employee's use of a particular safety appliance;

2. the employer carried out strict, continuous and bona fide enforcement of the policy;

3. the employee had actual knowledge of the policy, including a knowledge of the danger involved in its violation, through training provided by the employer; and

4. the employee willfully and intentionally failed or refused to follow the established policy requiring use of the safety appliance.

In applying these standards, the court must determine whether the employer made bona fide efforts to enforce the established policy. (See # 2 above). Specifically, if the employer's efforts were so inconsistent or intermittent as to suggest a lack of conscientiousness about the policy, the affirmative defense will fail. Furthermore, the employer cannot carry its burden of proof if it can be shown that the employer had knowledge of safety violations by its employees and acquiesced in those violations. Bryan v. Paramount Packaging Corp., 677 S.W.2d at 455 (stating that "disobedience of a 'rule' is not willful misconduct where the 'rule' is habitually disregarded with the knowledge and acquiescence of the employer.").

Likewise, if the proof only shows that the employee had constructive (as opposed to actual) knowledge of the established policy (see # 3 above), the employer cannot be found to have carried its burden of proof. Nashville, C. & St. L. Ry. v. Wright, 147 Tenn. at 622-23, 250 S.W. at 904 (finding that employer's posting of rule on bulletin board requiring use of goggles was insufficient to establish that employee knew of requirement). "One cannot deliberately break a rule unless one in fact knows the rule exists." Larson at § 35.02.

In evaluating whether the employee's conduct was willful (see # 4 above), the court must distinguish between those cases in which the employee's conduct was accidental, negligent, inadvertent, thoughtless, an error of judgment, or even reckless, and those cases in which the conduct was willful. Wheeler v. Glens Falls Ins. Co., 513 S.W.2d 179, 183 (Tenn. 1974). Moreover, the word "willful" as used in "willful failure or refusal to use a safety appliance" must be construed consistently with its use in the more general defense of "willful misconduct." See Rogers v. Kroger Co., 832 S.W.2d 538, 541 (Tenn. 1992) (stating that "three elements are needed to constitute willful misconduct for purposes of the statute: (1) an intention to do the act, (2) purposeful violation of orders, and (3) an element of perverseness."); Wright v. Gunther Nash Min. Const. Co., 614 S.W.2d at 798 (stating, "in defining the term 'willful' this Court has limited its scope to the most extreme situations, and has for all practical purposes limited its application to willful disobedience to known and understood prohibitions."); and Coleman v. Coker, 204 Tenn. 310, 315, 321 S.W.2d 540, 542 (Tenn. 1959) (stating that "in the overwhelming majority of cases in which this defense has been made it has failed because of the absence of willfulness as that term is normally and usually defined and understood.").

Also in considering whether the employee's action was willful, the Court must determine whether there is a plausible explanation for the employee's failure or refusal to use the safety appliance. See Larson at § 35.04. For example, if the proof shows that the employee was not using the safety device because it was inadequate or defective, the employee should not be barred from receiving the benefits to which he or she would otherwise be entitled. Id. If there is a plausible explanation for the employee's failure or refusal to use a safety appliance, the employee's conduct cannot be found to have included "an element of perverseness" and consequently cannot be found to have been "willful."

And in applying the standard set out above, the court must apply the familiar rule of construction that the workers' compensation statutes are remedial in nature and are to be construed liberally in order to attain the purposes for which they were enacted. As we stated in Betts v. Tom Wade Gin, 810 S.W.2d 140, 142-43 (Tenn. 1991),

this Court must interpret those statutes in a manner designed to protect workers and their families from the economic devastation that, in many instances, can follow on-the-job injuries. Furthermore, Tennessee's workers' compensation laws must be construed so as to ensure that injured employees are justly and appropriately reimbursed for debilitating injuries suffered in the course of service to the employer.

With the foregoing principles in mind, we now turn to an application of those principles to the facts of this case.

II. Application of the Standard to This Employee's Conduct

The employee-appellant, Wade Nance, suffered a fractured right ankle on the evening of June 7, 1998, while performing his duties as a greaser and oiler for the employer-appellee, State Industries, a water heater manufacturer. State Industries employs an estimated seventeen hundred people and has a facility that spans approximately thirty-three acres under one roof. Throughout his employment, which began in 1996, Nance has worked in State Industries' maintenance department and primarily has been responsible for greasing and oiling the industrial machinery.

On the evening he was injured, Nance had positioned himself on a ladder approximately four to five...