Tennessee Healthcare Worker’s “Scuffle” With Patient Was Not Willful Misconduct

In an unpublished opinion, the Special Workers’ Compensation Appeals Panel of the Supreme Court of Tennessee affirmed a trial court’s finding that an employer failed to meet its burden of proof that an employee willfully violated the employer’s physical restraint policy regarding residents at the employer’s therapeutic residential treatment facility [Tenn. Clinical Sch., LLC v. Johns, 2019 Tenn. LEXIS 295 (Aug. 2, 1019). Applying Professor Larson’s four-part test [see Larson’s Workers’ Compensation Law, § 34.01, et seq.], the panel agreed with the trial court that recent decisions of Tennessee courts had not eliminated the necessity that the employer prove the fourth “Larson element”—that the employee’s conduct was more than mere error in judgment, negligence, or even recklessness.

Background

Claimant was employed as a healthcare worker by the employer, which operated a therapeutic residential treatment facility for trauma-based teenagers. On the date of the incident in question, claimant had worked for the employer for only two months. The employer had a physical restraint policy (“Policy 7.3) for treatment of its residents. Essentially, the policy provided that the residents were to be free from restraint and that employees were to limit the use of interventions to emergencies in which there was “an imminent risk of a resident physically harming him/herself or others.”

Claimant subsequently acknowledged that he was generally aware of Policy 7.3 and that he understood the consequences for violating it. On the date of his injury, Claimant was responsible for entering the boys’ residence hall bedroom to get the young men up and ready for breakfast and medications. After verbally prompting the students for about three minutes, Claimant began to remove the blanket from the bed of one 13-year-old. The student moved to a sitting position and began to strike Claimant in the arm, wrist and hands. Claimant then let go of the blanket, walked a few steps and then apparently tried to restrain the student when a scuffle ensued. Other workers eventually came in and helped subdue the student, but Claimant was injured.

Trial Court’s Decision

Claimant was terminated for violating Policy 7.3. The trial court found that while Claimant did not have an objective excuse for violating the policy, his credible testimony supported the conclusion that he had not willfully, in a subjective sense, violated the restraint policy. The employer appealed.

Special Appeals Panel’s Decision

The special panel affirmed. The court noted that Claimant had testified the youth had hit him several times and that Claimant was, therefore, uncertain what the youth would do next. The panel said the trial court was justified in finding that in Claimant’s mind, the situation presented an imminent danger which permitted the use of the hold according to Policy 7.3. Claimant had based his decision on the youth’s actions, which indicated to Claimant that the youth was comfortable striking staff.

The Larson Four-Part Test

The panel acknowledged that Tenn. Code Ann. § 50-6-110(a)(1) prohibits recovery of benefits where an injury results from an employee’s willful misconduct. Whether the employee has engaged in willful misconduct is subject in Tennessee to the Larson four-part test, said the panel. Under the test, the elements necessary for the establishment of the statutory defense are:

1. The employee’s actual, as opposed to constructive, notice of the rule;
2. The employee’s understanding of the danger involved in violating the rule;
3. The employer’s bona fide enforcement of the rule; and
4. The employee’s lack of a valid excuse for violating the rule.

Here, neither party challenged the fact that the employer had established the first two elements of the test. The trial court found that the employer had not proved the third element, but the special panel disagreed, noting that there was undisputed evidence that the employer had enforced the rule for prior violations. The panel agreed with the trial court, however, that the employer failed to show that Claimant had no valid excuse.

The employer argued that under Mitchell v. Fayetteville Public Utilities, 368 S.W.3d 442 (Tenn. 2012), the fourth element was judged by an objective standard. The panel disagreed, stressing that Mitchell had not eliminated the necessity that the employer prove the employee’s conduct was more than mere error in judgment, negligence, or even recklessness. The panel cogently summarized:

It seems to us that Policy 7.3 contemplates an emergency situation in which an employee must make a judgment call based not only on his or her training and experience, but also upon his or her subjective perception and judgment of the situation in the moment. While, with the benefit of twenty-twenty hindsight, an objective review might indicate [Claimant’s] judgment was incorrect, and his action was a violation of Policy 7.3, it does not indicate that [Claimant] acted willfully. Rather, he merely made an error in judgment or acted negligently or recklessly.

The judgment of the trial court was accordingly affirmed.