VICKI PILLOW
v.
STATE OF TENNESSEE
No. M2019-02274-SC-R3-WC
Tennessee Workers Compensation
Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, Nashville
December 11, 2020
Assigned on Briefs August 31, 2020
Mailed
November 4, 2020
Appeal
from the Tennessee Claims Commission No. 0546-WC-17-0001629
James A. Haltom, Commissioner
An
employee sustained severe injuries when she was run over by a
public transit bus on her way to work. The employer denied
the employee's workers' compensation claim, and she
filed a complaint with the Tennessee Claims Commission. Both
parties filed competing motions for summary judgment on the
issue of whether the employee was within the course and scope
of her employment when the injury occurred. The Claims
Commission answered the question in the negative and
determined that the case was subject to the "coming and
going" rule. Therefore, the Claims Commission granted
summary judgment in favor of the employer. Upon our review of
the record and applicable case law, we affirm the decision of
the Claims Commission.
Tenn.
Code Ann. § 50-6-225(a) (2014) Appeal as of Right;
Judgment of the Tennessee Claims Commission Affirmed
Steven
Fifield and Samuel C. Wright, Hendersonville, Tennessee, for
the appellant, Vicki Pillow.
Herbert H. Slatery III, Attorney General and Reporter; Amanda
S. Jordan, Senior Assistant Attorney General, for the
appellee, State of Tennessee - Civil.
Jeffrey S. Bivins, CJ., delivered the opinion of the courts
in which DON R. Ash and Robert E. Lee Da vies, Sr. JJ.,
joined.
OPINION
JEFFREY S. BIVINS, CHIEF JUSTICE
Factual
and Procedural Background
Vicki
Pillow ("Employee") worked for the State of
Tennessee ("Employer/State") for over twenty years
and was employed with the Department of Mental Health and
Substance Abuse Services on October 28, 2016. At that time,
her office was located in the Andrew Jackson Building at 500
Deaderick Street in downtown Nashville, and her work hours
were 7:30 a.m.—4:00 p.m. Employee was a participant in
the State's Smart Commute Swipe and Ride Program, which
provides a transit pass for any full-time or 120-day state
employee to "ride all Nashville Metro Transit Authority
and Regional Authority buses as well as the Music City Star
commuter train free of charge" for work-related
purposes. Any qualifying employee who wishes to participate
must fill out a request to join the program and is then
issued a card to swipe on each ride. The State pays the fare
associated with each swipe for all participants in a monthly
invoice.
Employee
used the Swipe and Ride program to travel to work on October
28, 2016, boarding a Metropolitan Transit Authority
("MTA/WeGo") bus from Murfreesboro to Nashville at
approximately 5:30 a.m. and arriving in downtown Nashville at
approximately 6:45 a.m. Employee exited the bus at a
designated bus stop at the intersection of 5th Avenue and
Charlotte Avenue.[1] entered the crosswalk heading toward
the Andrew Jackson Office Building, and was run over by the
bus she had previously disembarked. The bus dragged Employee
for almost one city block, and she sustained multiple
injuries including a broken hip, lacerations, and a femoral
fracture, which required amputation of her leg. The bus
Employee traveled on, that subsequently ran her over, was
"owned and operated by [Davidson County Transit
Authority] and MTA," and "MTA determine[d] where
bus stops [were] located." Additionally, the
intersection "where [Employee] exited the bus [wa]s not
located on [Employer's] premises."[2] Employee's office
was located across the street from the bus stop.
Employee
filed a workers' compensation claim on November 8, 2016,
which Employer denied on the grounds that Employee's
injury did not occur within the course and scope of her
employment. Employee filed a timely complaint in the Claims
Commission of the State of Tennessee, Middle Division. The
claim was "place[d] into Abeyance to allow for
[Employee] to reach Maximum Medical Improvement" and was
placed back on the active docket in September 2018. On July
24, 2019, Employee filed a Motion for Partial Summary
Judgment on the sole issue of whether she was in the course
and scope of her employment when the injury occurred.
Employer filed a competing motion for summary judgment,
arguing that Employee was outside the course and scope of her
employment when the injury occurred and that the injury was
not compensable.
In
support of her motion, Employee argued that her case falls
within an exception to the general "coming and
going" rule, which precludes recovery for employees who
are merely commuting to and from work when they are injured.
According to Employee, the State "furnished" the
transportation because it made "deliberate and
substantial payment" towards the Swipe and Ride Program,
regardless of whether the State owned or controlled the bus
itself. Employee asserted that the State's designees
agreed in their depositions that the purpose of the program
was to furnish transportation for the employees, and, because
the program was intended to be a "pure employee
benefit" for which the State paid 100% of the costs and
did not seek reimbursement from employees, the Swipe and Ride
Program was part of her compensation.
In the
alternative, Employee argued that, even if the Claims
Commission held that the State did not furnish the
transportation, the facts of this case are a natural
extension of the exception to the "coming and
going" rule in Cope land v. Lead, Inc., 829
S.W.2d 140, 144 (Tenn. 1992). Employee argued that even if
the bus stop was not on the "employer's
premises," as required by the rule in Cupeland,
the State nonetheless created the necessity for her to cross
the street from the bus stop to her office through the Swipe
and Ride Program.
In
response, Employer argued that the case should be dismissed,
Employee's motion should be denied, and the Commission
should grant...
