1

TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MURFREESBORO

RONDA A. CAMPBELL

, ) Docket No. 201 9

- 05

- 0540

Employee, )

v. ) MARTEN TRANSPORT, LLC

, ) State File No. 32087

- 2019

Employer
, )

A nd ) AGRI GENERAL INS. CO., ) Judge Dale Tipps

Insurance Carrier. )

EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS

This case came before the Court on November 14 , 2019

, for an Expedited Hearing

on whether M s. Campbell is entitled to benefits

. To receive these benefits

, Ms. Campbell

must show that she is likely to establish at a hearing on the merits that h er injuries a r ose primarily out of an d in the course and scope of her employment

. For the reason s below,

the Court holds M s. Campbell failed to meet t his burden because her injury occurred during a deviation f

rom her employment. Therefore, the Court holds that she is not
entitled to benefits at this time

.

History of Claim

Ms. Campbell works as a truck driver for Marten Transport, a company that provides trucking services for Wal m art in Tennessee. She testified that she drove a regular route from the Wal m art distribution center in Shelbyville to a store near Dayton

, with several deliveries along the way.

On the morning of April 23, 2019, Ms. Campbell had completed her deliveries and was returning to Shelbyville, when she decided to stop at the At Home st ore in Chattanooga to buy a gift for her mother. 1 The store was closed when she arrived, so she parked her truck and went into her sleeper compartment to rest until the store opened.

1 Ms. Campbell contended that she had permission from her dispatcher to make this stop, but Marten denied that she asked for or received permission. 

### FILED Nov 22, 2019 02:56 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS2

While Ms. Campbell slept, a tow

- truck operator hooked onto the cab of her truck and raised the front of it off the ground. 2 He then pounded on the door to wake her up. Ms. Campbell was still groggy when she opened the door and did not realize the cab had been elevated. As a result, she fell to the ground and injur ed her h ead

, shoulder

, and left wrist.

Ms. Campbell made her purchase, drove the truck back to Shelbyville

, and reported the accident to Michael Ternberg, Marten’s workers’ compensation claim representative. He instructed Ms. Campbell to go to a walk

- in clinic

. Four clinic s refused to treat her, so she went to the emergency room where she discovered she had

broken her wrist. Ms. Campbell began treating with Dr. Brian Peterson, an orthopedic specialist. That treatment was unauthorized, however, and Marten deni ed her claim on May 2.

On cross

- examination, Ms. Campbell admitted Marten required her to follow a specific route from Dayton to Shelbyville. She agreed that Exhibit 12 was a map that accurately depicted her prescribed return route

.

Mr. Ternberg testif

ied he denied Ms. Campbell’s claim because she deviated from her job duties to perform a personal errand. 3

Ms. Campbell requested that the Court order Marten to pay her medical ex penses and to reimburse her for the bills she paid personally

. She also requested temporary disability benefits

.

Marten contended that Ms. Campbell wa s not entitled to benefits because : 1) the Court lacks jurisdiction; 2) she k nowingly and voluntarily sought or accepted benefits in another state; and , 3) her injury did not ar i se primarily out of and in the course and scope of her employment because she deviated from her route

. Marten asked the Court to deny her request.

Findings of F act and Conclusions of Law

Ms. Campbell must provide sufficient evidence from which this Court might determine she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50

- 6

- 239(d)(1) (201 9 ); McCord v. Advantage Human Resourcing , 2015 TN Wrk. Co mp. App. Bd. LEXIS 6, at *7

- 8, 9 (Mar. 27, 2015).

2 The parking lot was posted, “No Truck Parking.”

3 Both parties introduced a great deal of evidence about Qualcom

– the electronic communications system by which Marten communicates with its drivers and tracks their movements. Similarly, the Court heard

evidence about whether Ms. Campbell was legally parked at the time of the accident and whether she complied with Marten’s safety policies in the way she exited her truck. Because the Court finds Ms. Campbell distinctly departed from her work duties, it need not summarize this testimony.3 Forum

- Selection Clause

Marten first contended that the Court has no jurisdiction because Ms. Campbell consented to the exclusive jurisdiction of Wisconsin workers’ compensation law as a

condition precedent to her employment. It argued this constitutes a reasonable forum

selection clause and that these clauses are generally enforceable in Tennessee. The Court disagrees and finds that, as a matter of law, the alleged forum

- selection clause is inv alid. 4

Tennessee Code Annotated section 50

- 6

- 114(a) provides: “ No contract or agreement, written or implied, or rule, regulation or other device, shall in any manner operate to relieve any employer, in whole or in part, of any obligation created by this

c hapter [.]” Ms. Campbell and Marten meet the statutory definitions of employee and employer in Tennessee Code Annotated section 50

- 6

- 102, and Ms. Campbell alleged she suffered injuries in Tennessee while performing her employment duties for Marten. These facts entitle her to seek benefits under the Tennessee Workers’ Compensation

Law. To the extent Marten’s forum

- selection clause purports to relieve Marten of the obligation to provide Tennessee workers’ compensation benefits, i t is void

. See F red Travis v Carter Express , 2018 TN Wrk

. Comp

. App

. Bd

. LEXIS 67 , at 17

- 18 (Dec. 21, 2018) (prospective forum

- selection clauses are void as against public policy and are

invalid under section 50

- 6

- 114(a)).

Election of Remedies

An employee can waive her right to pursue workers’ compensation benefits under Tennessee law where the employee elects to pursue benefits under the laws of another

state. T o make this election, the employee must have: “(a) affirmatively acted to obtain benefits in another state; or (b) knowingly and voluntarily accepted benefits under the law of another state.” However, the “mere acceptance of benefits” under the laws of another state, without proof that it was a knowing and voluntary ac ceptance, is insufficient to show a binding election of remedies. Goodwin v. Morristown Driver’s

Serv s

. , Inc., 2019 TN Wrk. Comp. App. Bd. LEXIS 37, at *9 (July 31, 2019).

In this case, no proof demonstrates that Ms. Campbell affirmatively acted to obtain benefits in Wisconsin. To the contrary, Mr. Ternberg testified that he alone made the decision to deny Ms. Campbell’s claim and that no Wisconsin state agency or court was

involved. Thus, Ms. Campbell did not waive her right to Tennessee Workers’ Compensation benefits under the first part of the election analysis.

Regarding the second part, Marten contends that Ms. Campbell admitted she

4 It is unclear whether the provision at issue is a forum

- selection claus e or if it is really a choice of law provision. The Court finds it need not make this determination, as either type of agreement is void.4

knowingly and voluntarily accepted benefits under the law of another state . It relies on Ms. Campbell’ s recorded statement, where she agreed with Mr. Ternberg’s question, “Do you understand this claim is being handled under the state of Wisconsin Workers’ Compensation Act and in the state of Wisconsin?” Marten also notes that Ms. Campbell’s Petition for B enefit Determination states “Claim denied on 2 May 2019 via phone call from Mike Ternberg. Want to appeal decision / file new claim in TN where I

work/live.”

A threshold problem with Marten’s argument is that it requires Ms. Campbell to accept benefits. This she could not do, as Marten denied her claim without ever providing any medical treatment or temporary disability benefits.

More importantly, an employe e who receives voluntarily

- paid benefits does not make a binding election “ if benefits were received and accepted by the employee without knowledge on his part that he could have made a claim in Tennessee, or without the degree of knowledge which is requir ed in order for a binding election to be made. ” Hale

v. Commercial Union Assurance Cos. , 637 S.W.2d 865 , 869

- 870 (Tenn. 1982). N o evidence suggests that Ms. Campbell knew she could make a claim in Tennessee until

she did so. Nor does any proof indicate that she had the degree of knowledge required to make a knowing, intentional election. Instead, Marten simply informed her (incorrectly) that her claim was being handled under Wisconsin law. The Court finds this practice both questiona ble and inadequate to constitute an election of remedies.

Compensability

To prove a compensable injury, Ms. Campbell must show that her alleged injury arose primarily out of and in the course and scope of her employment. Marten did not dispute that Ms. Campbell injured herself while exiting her truck. However, it contended that she was not in the course and scope of her employment at the time.

A traveling employee is generally considered to be in the course of employment continuously during the duratio n of the entire trip, except when there is a distinct departure on a personal errand. McCann v. Hatchett , 19 S.W.3d 218 , 221 (Tenn. 2000)

. The parties agree that Ms. Campbell was a traveling employee. The question, therefore, is whether her trip to At H ome constituted a distinct departure on a personal errand. The

Court finds that it did.

The Court recognizes that the physical deviation from her route was not geographically significant (approximately five miles), but it was a distinct departure. 5

5 Ms. Campbell disagreed that she deviated as much as five miles from her route, arguing that the parking lot was actually right next to I

- 24. She is correct about the location of the parking lot, but according to the map showing her route, she was not yet supposed to be on I

- 24.5

Further, the nature of the deviation seems more important than the distance traveled.

Ms. Campbell correctly argued that some acts of comfort and convenience, such as bathroom breaks or meal stops, are incidental to the employment. These contribut e to the furtherance of an employer’s interest, and injuries that occur during such stops are deemed to have arisen out of the employment. See McCormick v. Aabakus, Inc ., 101 S.W.3d 60, 63 ( Tenn. Workers’ Comp. Panel Oct. 5, 2000). However, she admitted that

the sole reason for this stop was to purchase a gift, not for food, fuel, or a bathroom

break. Ms. Campbell’s decision to leave her route and park her truck was based on purely personal considerations. This differs fundamentally from a comfort stop, in that it provided no benefit to Marten. Therefore, it represents a distinct departure on a personal

errand

.

Ms. Campbell contended that she had Marten’s permission to make the stop. Even if this were true, the Court is unaware of any authority that granting permission for a departure changes the analysis set out in McCann . Instead, it seems the focus should remain on the question of whether Ms. Campbell’s deviation from her route provided any benefit to Marten. Absent any proof of a benefit, th e Court cannot find at this time that

she is likely to prevail on proving that her injury arose out of the course and scope of her employment.

IT IS, THEREFORE, ORDERED as follows:

1. Ms. Campbell ’s claims against Marten Transport for the requested medical and temporary disability benefits are denied at this time.

2. This case is set for a Scheduling Hearing on January 29, 2020, at 9:00 a. m. You must call toll-free at 855-874-0473 to participate. Failure to call m ight result in a determination of the issues without your further participation. All conferences are set using Central Time.

ENTERED November 22, 2019.

_____________________________________ Judge Dale Tipps

Court of Workers’ Compensation Claims6 APPENDIX

Exhibits : 1. Affidavit of Ronda Campbell

2. Records from Tennova Healthcare

3. Records from Tennova Ortho

4. Wage statement

5. August 23, 2019 payroll printout

6. View Load document

7. Tennova accounts receivable printout (Identification Only)

8. Medical payment receip ts and summaries (Identification Only)

9. Satellite photo of At Home parking lot

10. Petition for Benefit Determination

11. Driver Log

12. Google map printout of return route

13. Google map printout of return route and detour to At Home

14. Invoice from Mostler’s Towing

15. Investigation notes

16. Transcript of Ronda Campbell’s recorded statement

17. Qualcom printout

Technical record:

1. Pet ition for Benefit Determination

2. Dispute Certification Notice

3. Request for Ex pedited Hearing7 CERTIFICATE OF SERVICE

I certify that a copy of the Expedited Hearing Order was sent as indicated on November 22 , 2019

.

Name Certified

Mail Email Service sent to:

Ronda Campbell

, Self

- represented Employee X Fields1961@yahoo.com

Robin Rasmussen

, Employer Attorney X rrasmussen@drmlawmemphis.com

_____________________________________ Penny Shrum, Court Clerk Court of Workers’ Compensation Claims WC.CourtClerk@tn.gov