WOR

S

CO

Stephen W. Shepherd 

v. 

Haren Construction Company, Inc., et al. 

Appeal from the Court of Workers' 

Compensation Claims 

Thomas Wyatt, Judge 

) Docket No. 2015-01-0325 

) 

) State File No. 79562-2015 

) 

) 

) 

) 

) 

) 

) 

Affirmed as Modified and Remanded - Filed March 30, 2016 

This interlocutory appeal involves an employee who was injured while in the course and 

scope of his employment and was subsequently terminated by the employer. The 

employee requested payment of temporary disability benefits, which the employer denied 

on the basis it terminated the employee for cause and would have provided light duty 

work but for the termination. Following an expedited hearing, the trial court denied the 

employee's request for temporary disability benefits, finding the employee was 

terminated for cause. The employee has appealed. Having carefully reviewed the record, 

we affirm the trial court's decision denying temporary disability benefits, modify the 

decision concerning the payment of medical benefits based on the parties' stipulation, 

and remand the case for further proceedings as may be necessary. 

Judge David F. Hensley delivered the opinion of the Appeals Board, in which Judge 

Marshall L. Davidson, III, and Judge Timothy W. Conner joined. 

William J. Brown, Cleveland, Tennessee, for the employee-appellant, Stephen W. 

Shepherd 

1 
("Employer"), on July 14, 2015, when he suffered a laceration injury to his left forearm 

that arose primarily out of and in the course and scope of his employment. Employer 

accepted the injury as compensable. Although there is some discrepancy regarding the 

exact circumstances of the incident causing the injury, the occurrence of the injury is 

undisputed. Employee was provided medical care at a walk-in urgent care clinic in Clay, 

North Carolina, where Employee was working with a five-person crew installing 

pipeline. Employee's laceration was sutured and he was released to work with 

instructions to keep the wound clean and dry for two days. He returned to work on the 

afternoon of his injury. 

Employee worked the following day, July 15, 2015. On July 16, 2015, Employee 

was operating a backhoe and accidently ruptured a gas line while digging a trench in 

which pipe was to be laid. The incident resulted in a work stoppage until the gas line 

could be repaired, and the crew resumed work after repairs were completed. The 

following day was a travel day for the crew and after a short period of time at the 

worksite the crew left to return to Tennessee. On July 18, 2015, Employee's supervisor 

called him and advised that he had been terminated for "running the equipment erratically and then hitting a gas line." 

The following work day, Employee went to Employer's office and spoke with 

Employer's president, Evan Haren. There is a conflict in the parties' testimony 

concerning whether the conversation between Employee and Mr. Haren included a 

discussion about Employee's injury, but Employee's purpose in meeting with Employer 

was to address the reason for his termination. Mr. Haren testified that, before he met 

with Employee, he was aware that a gas line had been ruptured by an operator and that 

the rupture had shut down work for a brief period. He testified he did not know who the 

operator was and did not know that the operator had been terminated until the meeting 

with Employee. He testified he told Employee "[he] would look into it and if [he] found 

anything different [from what had been reported to him] about the incident [he] would get 

back with [Employee] and let him know what [he] found." Mr. Haren further testified 

there was no mention of Employee's injury or medical care during the meeting, and that 

the discussion was limited to Employee's termination. 

In contrast, Employee testified that he told Mr. Haren about his injury during the 

meeting and asked, ''who is going to deal with this arm?" Employee testified that Mr. 

Haren said he had not been informed of an on-the-job accident, and that he would "look 

2 
with an orthopedic physician, Dr. Patrick Stone. Dr. Stone was subsequently authorized 

by Employer to provide ongoing reasonable and necessary medical care for Employee's 

work-related injury. At an expedited hearing, the parties stipulated that all of the medical 

expenses incurred as a result of treatment with Dr. Stone for Employee's work injury 

were Employer's responsibility. 

The dispute in this case concerns whether Employee is entitled to temporary 

disability benefits from the date of his termination until the January 28, 2016 expedited 

hearing. 1 Employer contends Employee is not entitled to temporary disability benefits 

for the period in question, asserting that Employee was terminated for cause and that it 

would have accommodated Employee's work restrictions had he not been terminated. 

Employer relies primarily on the July 16, 2015 gas line rupture as the basis for its 

termination of Employee, but cited other reasons supporting the termination. In addition 

to Employee, four individuals testified at the expedited hearing, including Employee's 

supervisor, Employer's president, Employer's safety manager, and a heavy equipment 

mechanic for Employer who was present at the worksite when the gas line rupture 

occurred. The crux of the parties' dispute is whether Employee's rupturing the gas line 

was the result of his failure to follow his supervisor's instructions and improper operation 

of the backhoe or was, as characterized by Employee's attorney, an "honest mistake." 

Employee testified that on the day of the gas line rupture, he was experiencing 

numbness in his left hand, thumb, and some of his fingers as a result of his work-related 

injury two days earlier. He explained that, as a heavy equipment operator, having full 

sensation in his hands is essential so he can feel the vibration of the machine he is 

operating and any changes in that vibration that would indicate he had come into contact 

with something while digging. Because of the laceration on his left arm, Employee 

testified he had reduced sensation and experienced difficulty in operating the backhoe. 

He also testified that because he was digging parallel to the gas line, it was less likely that 

he would feel hesitation if the bucket came into contact with the gas line. 

Employee's testimony directly contradicts that of Employer's witnesses regarding 

whether he was instructed not to dig in the area where the gas line was ruptured. He 

described working on the backhoe digging parallel to the gas line while his supervisor 

I Dr. Stone took Employee completely off work for a period of time, during which Employer paid 

temporary total disability benefits. Those benefits are not disputed. 

3 
history of operating heavy machinery, and that he was wearing earplugs at the time of the 

incident. He testified that had his supervisor yelled at him to stop digging he would not 

have been able to hear him. Further, he testified that the gas line was not marked and that 

the ground where he was digging was undisturbed. He testified that a tooth on the 

backhoe bucket caught the edge of the gas line ''just enough to cut a little gash in it." 

When questioned on cross-examination regarding whether he had been disciplined 

for operating machinery in a dangerous manner, Employee acknowledged having been 

reprimanded by his supervisor on one occasion when he hit a "silt fence" with an 

excavator and stated that, if he had ever received other reprimands, they were of such an 

insignificant nature that they did not "register with [him]." However, he denied having 

been reprimanded for operating machinery in a ''wild" manner and testified he would 

remember reprimands of that nature. 

The testimony of Employee's supervisor was markedly divergent from that of 

Employee. He testified that the gas line around which Employee was digging had been 

exposed by workers digging by hand. He testified that when Employee began to use the 

backhoe near a section of gas line that was still buried, he instructed Employee to stop 

digging to allow another worker to uncover the line by hand with a shovel so it would be 

visible. The supervisor stated that Employee heard him tell him to stop digging because 

Employee responded, "I see the line. I've got this." The supervisor testified that he told 

Employee that he would rather let a laborer uncover it with a shovel and, when Employee 

continued to dig, instructed him not to hit the gas line. He stated that Employee took 

"two more swipes and cut the gas line in two." 

The supervisor also testified that, before the day the gas line was ruptured, he had 

reprimanded Employee four times for operating machinery in an unsafe or "wild" 

manner. He testified that after Employee continued to dig in the area of the gas line, 

despite having been told to stop digging, he determined the appropriate course of action 

was to terminate Employee. Prior to doing so he contacted Employer's safety manager to 

discuss the possible termination. 

Mike Bell, a heavy equipment mechanic for Employer, testified he was present at 

the worksite and was standing on the curb observing what was going on when the 

incident occurred. He testified he heard the supervisor instruct Employee not to continue 

digging where the gas line had not been exposed. He testified the supervisor told 

4 
providing light duty work to employees with work restrictions, stating "[w]e almost 100 

percent of the time utilize light duty for people who get injuries on jobs." He testified 

that Employer would have accommodated Employee had he been in need of light duty 

work with restrictions limiting him to work with no use of one arm. Employee disputed 

whether light duty work would have been available for him, but offered no evidence in 

support of his position other than his own testimony. 

Lastly, Employer's safety manager, Mike Herrell, testified that he received a 

telephone call from the supervisor concerning whether to terminate Employee and that he 

was involved in the decision to terminate Employee. He testified the sole reason for the 

termination was Employee's insubordination. He also testified Employer has a policy to 

provide reasonable accommodation to injured employees, stating the work would be 

"[ e ]ither in the field or at the office," and that the work "could be through cleaning up 

around the office, painting, using a paint brush, any number of things." 

Following an expedited hearing, the trial court found Employer terminated 

Employee for cause, observing that Employee's affidavit submitted with his request for 

expedited hearing was inconsistent with his testimony at the hearing. The trial court 

found Employer's witnesses to be credible and found the termination was consistent with 

Employer's policies and, thus, was justified. Accordingly, the trial court denied 

Employee's request for temporary disability benefits. Employee has appealed. 

Standard of Review 

The standard we apply in reviewing a trial court's decision is statutorily mandated 

and limited in scope. Specifically, "[t]here shall be a presumption that the findings and 

conclusions of the workers' compensation judge are correct, unless the preponderance of 

the evidence is otherwise." Tenn. Code Ann. § 50-6-239(c)(7) (2015). The trial court's 

decision must be upheld unless the rights of a party "have been prejudiced because 

findings, inferences, conclusions, or decisions of a workers' compensation judge: 

(A) Violate constitutional or statutory provisions; 

(B) Exceed the statutory authority of the workers' compensation judge; 

(C) Do not comply with lawful procedure; 

(D) Are arbitrary, capricious, characterized by abuse of discretion, or 

clearly an unwarranted exercise of discretion; 

5 
Analysis 

As an initial matter, we note that the trial court denied Employee's request for 

payment of medical expenses incurred with Dr. Stone. However, the parties stipulated in 

the expedited hearing that Dr. Stone was the authorized physician, and the Employer 

agreed that the medical expenses associated with Dr. Stone's treatment of the work injury 

"would be paid pursuant to the fee schedule." In its brief on appeal, Employer stated that 

"the bill for services of Dr. Stone of September 8, 2015, was paid." Therefore, the trial 

court's order regarding the denial of payment for the medical expenses arising from the 

initial treatment with Dr. Stone for Employee's work injury is modified to provide that 

Employer is responsible for all reasonable and necessary medical expenses incurred with 

Dr. Stone as a result of the work injury. 

With respect to the trial court's denial of temporary disability benefits, Employee 

raises as an issue in the notice of appeal and in his brief whether the trial court erred in 

failing to award temporary total disability benefits from the date of Employee's 

termination.2 To receive temporary total disability benefits, an em_ployee must prove (1) 

total disability from working as the result of compensable injury; (2) a causal 

connection between the injury and the inability to work; and (3) the duration of the period 

of disability. Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978). Where the 

disability is not total, an employee may recover temporary partial disability benefits if the 

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). See Tenn. Code Ann. § 50-6-

207(2) (2015). Temporary restrictions assigned by physicians during an injured worker's 

medical treatment do not establish an entitlement to continued temporary disability 

benefits if the employee is able to work without loss of income. See Long v. MidTennessee Ford Truck Sales, 160 S.W.3d 504, 511 (Tenn. 2005); Vinson v. Firestone 

Tire and Rubber Co., 655 S.W.2d 931, 933 (Tenn. 1983). 

Even though an employee has a work-related injury for which temporary benefits 

may be payable, an employer may still enforce workplace rules. Carter v. First Source 

2 Employer paid temporary total disability benefits for the period of time Dr. Stone opined Employee was 

totally unable to work. All temporary total disability benefits owed have been paid. Employee's request 

for temporary total disability benefits is better characterized as a request for temporary partial disability 

benefits. 

6 
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 expectations; and (2) that those actions 

were, as a factual matter, the true motivation for the dismissal." Durham v. Cracker 

Barrel Old Country Store, Inc., No. E2008-00708-WC-R3-WC, 2009 Tenn. LEXIS 3, at 

*9 (Tenn. Workers' Comp. Panel Jan. 5, 2009). 

In the instant case, the determinative issues are whether Employer came forward 

with sufficient evidence to support its position that Employee was terminated for 

violating workplace rules and whether Employee came forward with evidence that the 

stated reason for the termination was merely a pretext. The trial court determined that 

Employer terminated Employee for cause, "mak[ing] it unnecessary to determine if 

[Employer] would have offered [Employee] a light duty position had it not terminated 

him." For the reasons that follow, we conclude from our independent review of the 

record that the evidence does not preponderate against the trial court's determinations 

that Employee was terminated for misconduct and that Employee is not due additional 

temporary disability benefits. 

The trial court found Employer's witnesses to be credible and found the actions of 

Employee's supervisor and Employer's safety manager in terminating Employee to be 

reasonable. While it is the responsibility of a reviewing court to conduct an in-depth 

examination of the trial court's factual findings and conclusions, Wilhelm v. Krogers, 

235 S.W.3d 122, 126 (Tenn. 2007), our review of the trial court's order is governed by 

Tennessee Code Annotated sections 50-6-217(a)(3), as referenced above, and 50-6-

239(c)(7) (2015). Section 50-6-239(c)(7) provides a presumption "that the findings and 

conclusions of the workers' compensation judge are correct, unless the preponderance of 

the evidence is otherwise." Furthermore, when the trial court has seen and heard the 

witnesses, considerable deference must be afforded the trial court's factual findings. 

Tyron v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008). Nonetheless, we must still 

assess independently where the preponderance of the evidence lies. See Tenn. Code Ann. 

§ 50-6-239(c)(7). 

The testimony of Employer's witnesses concerning whether Employee operated 

the backhoe contrary to his supervisor's instructions was consistent. As a result of the 

manner in which Employee operated the backhoe, the gas line was ruptured, Employer 

incurred expenses, and work time was lost. Employer's mechanic, who was present at 

7 
Employee Information Handbook, which Employee testified he read, included the 

following: 

Employees should be concerned with the care and use of company-owned 

equipment and facilities. Employees are expected to follow all operating 

instructions, safety standards and guidelines. 

Unsafe, destructive, careless, negligent, or improper use or operation of 

equipment may result in disciplinary action up to and including termination of employment. 

Employee asserts in his brief on appeal that Employer's president, Mr. Haren, 

"acknowledged that [Employee's] alleged conduct as described didn't constitute a 

violation of a direct order." On cross-examination Mr. Haren was asked, "[b ]ased on 

your understanding of the policies, what was the reason why Haren Construction 

Company fired [Employee]?" Consistent with the testimony of Employee's supervisor, 

Mr. Haren responded "[b]ecause he disobeyed an order not to dig around that gas line." 

Employee's counsel then represented to Mr. Haren that when the supervisor told 

Employee to stop digging Employee said "I think I can get it," and that the supervisor 

responded, "[w]ell, go ahead." With that representation to Mr. Haren of the supervisor's 

testimony, counsel then asked, "[i]s that someone disobeying a direct instruction?" Mr. 

Haren responded, "[i]f it's worded that way, no." However, Employee's supervisor did 

not testify that he told Employee "[w]ell, go ahead," as was represented to Mr. Haren. 

Employee does not cite in the record where this alleged testimony of the supervisor 

appears and our independent review of the record does not disclose such testimony. 

Employee additionally asserts "[t]here was nothing in the record to suggest that 

any past conduct or 'inadequacies' ... went into the determination to terminate 

[Employee]." However, Employee's supervisor was asked whether he had ever 

reprimanded Employee about the operation of equipment and testified he had done so 

four times before the incident when the gas line was ruptured. The supervisor was asked 

whether he was confident he had spoken to Employee about his operation of the 

equipment on previous occasions and responded, "[y]es, ma'am. Because I wrote it in 

my journal every time I had to." Furthermore, when asked to tell the substance of the 

8 
workplace policies and that those actions were the true motivation for Employee

s 

termination. 

Finally, Employee contends the trial court "did not address the second prong of the 

analysis it suggested was necessary for [Employee] to prevail and recover [temporary 

disability benefits]," which is ''whether [Employer] ever intended to provide 'light duty 

work."' Employer presented unrefuted testimony from both its president and its safety 

manager addressing the company's policy regarding the accommodation of light duty 

restrictions. Accordingly, we find no merit in Employee's insistence that the company 

would not have provided light duty work within Employee's restrictions had Employee 

not been terminated for cause. 

Conclusion 

For the foregoing reasons, we hold that the evidence does not preponderate against 

the trial court's decision to deny temporary disability benefits at this interlocutory stage 

of the case. Nor does the trial court's decision violate any of the standards set forth in 

Tennessee Code Annotated section 50-6-217(a)(3). Accordingly, the trial court's 

decision is affirmed as modified. The case is remanded for any further proceedings that 

may be necessary. 

!?f~~ nav{d F. Hensley, Judge 

Workers' Compensation Appeals Board 

9 
 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

 WORKERS’ COMPENSATION APPEALS BOARD 

Stephen W. Shepherd ) Docket No. 2015-01-0325 

) 

v. ) 

) State File No. 78562-2015

Haren Construction Co., Inc., et al. ) 

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 30th day of March, 2016. 

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Fax 

Number

Via 

Email

Email Address

William J. Brown X wjb@vollaw.com

Leslie Bishop X lbishop@lewisthomason.com

Thomas Wyatt X Via Electronic Mail

Kenneth M. Switzer, 

Chief Judge

X Via Electronic Mail

Penny Shrum, Clerk, 

Court of Workers’ 

Compensation Claims

X Penny.Patterson-Shrum@tn.gov

 

Jeanette Baird

Deputy Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B 

Nashville, TN 37243 

Telephone: 615-253-0064 

Electronic Mail: Jeanette.Baird@tn.gov