By Judge Brian Addington, Gray
While an undergrad at Pikeville College (now University of Pikeville), I was exposed to a popular cultural gathering called “Hillbilly Days.” Occurring in the home county to the McCoys of the Hatfield-McCoy feud, let me just say . . . they know how to party. There’s a parade, food, singing, dancing, a beauty contest, and just a whole lot of celebrating for several days. It’s a good time.
Pikeville cannot make claim to the only hillbilly festival, as they occur elsewhere in the United States, and at one time in Madison, Tennessee, now part of Nashville. The festival in Madison raised money to support local schools. (I’m sure the one in Pikeville had and has noble purposes, too.)
Well, come to think of it, I’ve never explained what a hillbilly is. If you’ve seen me, you’ve seen a hillbilly, but not all of you have. So, I guess the best explanation is “someone from a backwoods area,” according to Merriam-Webster. We talk and act a little differently, but we generally like to have fun and are the kindest people you’d ever meet. And smart–not necessarily with book learning but life in general. Just think Uncle Jed Clampett on the Beverly Hillbillies.
Which got me to thinking if any reported workers’ compensation cases in Tennessee mention “hillbillies.” Sure enough, the answer is yes. W. Tenn. Nix-A-Mite Systems, Inc. v. Funderburk is an interesting case concerning an employee deviating from his work route to drink and borrow some money, only to be killed when he returned to the course of his employment.
Ollis Funderburk drove a truck for his employer. On the day in question, his employer asked him to drive to Memphis to pick up an air compressor. When the employer’s son dropped the truck off to Mr. Funderburk, he tried to borrow $2.00 to buy gas and meals, but the owner’s son didn’t have the money to lend him.
Mr. Funderburk started on the way to Memphis but turned off at Obion to go to the American Legion Hall around 10:00 p.m. to visit a friend playing in a “hillbilly band.” There he ordered two beers and borrowed money from his friend for gas and supper. He then got back in the truck and resumed his route to Memphis, when he went off the road in a curve and was killed.
The trial court found for his dependents, and the employer appealed. The Supreme Court found that Mr. Funderburk had a good excuse to leave his route for gas and food money, and he did deviate from his route but had returned to the route when the incident occurred. The high court agreed that the accident arose out of and in the course of his employment.
This simple yet powerful reasoning and the decision — that an employee who has deviated from his route but returned to his route and is later injured is covered under workers’ compensation — was later followed by the Courts in Tennessee, New Jersey and Wyoming.
And just like that, hillbillies were brought into case law in several states.
From the Bench 
I want to be clear that I have the greatest respect for the court. However, it gives me considerable trepidation that this blog entry’s final paragraph suggests that Funderburk may not still be good law. I worry that this could be perceived by litigants before the Court of Workers’ Compensation Claims as an “advisory opinion” from the judiciary that the law has changed – an issue not currently before the court.
Funderburk and the line of cases following it dealt with the concept of whether an injury occurred “in the course of” employment, in the sense of “time, place, and circumstances.” See, e.g., Wilhelm v. Kroger, 235 S.W.3d 122, 127 (Tenn. 2007). Specifically, the courts find an injury was “in the course of” employment where the employee was “performing a duty he was employed to do.” Id.
By contrast, the question of whether an injury “arises out of” employment deals with causation – specifically whether “there is apparent to the rational mind, upon a consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.” Id.
Funderburk was not about causation of the injury; it was about whether the deviation from the route meant that the employee was no longer performing duties on behalf of the employer. Since the employee had returned to his route, the court found that “course of employment” had been established.
It is true that Tenn. Code Ann. § 50-6-102(13)(B) has changed the definition of “injury” to add the word “primarily,” and medical causation has been redefined under this standard to mean that the employment must have “contributed more than fifty percent (50%) in causing the injury, considering all causes.” However, since this language explicitly deals with causation, it is clearly a question aimed at when an injury “arises out of” employment, rather than whether it is “in the course of” employment.
It would massively change workers’ compensation law to redefine “course of employment” with an ambiguous “more than fifty percent” standard. It is unclear how courts would even begin to apply a mathematical percentage to determine whether an employee was “performing a duty he was employed to do.” There is no indication in Tenn. Code Ann. § 50-6-102 that the General Assembly intended such an interpretation, especially since adjacent sections use the phrase “reasonable degree of medical certainty,” which speaks to causation and not whether the employee was acting for the benefit of the employer.
As a practitioner who regularly represents injured employees, I worry greatly about discussions in the Court’s blog “muddying the waters” in well-settled areas of workers’ compensation law. The Court speaks best about changes in the law through its opinions.
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