Markin, William v. Memphis Light, Gas & Water Division

FILED
Feb 19, 2025
10:30 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

William Markin ) Docket No. 2023-08-7648
)
v. ) State File No. 4916-2023
)
Memphis Light, Gas )
& Water Division, et al. )
)
)
Appeal from the Court of Workers’ ) Heard January 21, 2025
Compensation Claims ) in Jackson, Tennessee
Allen Phillips, Judge )

Affirmed and Remanded

In this interlocutory appeal, the employer contends the trial court erred when it found that
the employee would likely prevail at trial in his request for medical benefits resulting from
a welding accident. The employer had denied the claim, asserting willful misconduct and
failure to wear a safety device as defenses, but the trial court concluded the employer had
not presented sufficient evidence of these affirmative defenses to support a conclusion that
the employee was unlikely to prevail at trial. Employer has appealed. After careful
consideration of the record and of arguments of counsel, we affirm the trial court’s order
and remand the case.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge
Timothy W. Conner and Judge Meredith B. Weaver joined.

Casey Shannon and Noor Obaji, Memphis, Tennessee, for the employer-appellant,
Memphis Light, Gas & Water Division

Monica Rejaei, Memphis, Tennessee, for the employee-appellee, William Markin

Factual and Procedural Background

On January 17, 2023, William Markin (“Employee”) was employed as a commercial
gas welder for Memphis Light, Gas & Water (“Employer”) when a gas explosion caused a
serious injury to his right eye. Employee was working as part of a three-man team that
included Employee; co-worker and welder, Robert Diffee (“Diffee”); and acting crew
leader, Danny Daniels (“Daniels”). The team was dispatched to install a meter in the north

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part of Memphis. When they arrived, however, the site was not ready for the installation.
After calling dispatch, they were sent to another location in the south part of Memphis so
they could remove a different meter, but, upon arrival, the meter had already been removed.
The crew contacted dispatch again and were told to close out the work order, go to lunch,
and then begin welding parts they would need for their next job. They returned to north
Memphis and, following lunch, drove to an empty lot on Benjestown Road, where the crew
parked. Diffee was driving the vehicle and Daniels was sitting on the passenger side.
Employee was sitting in the back seat of the truck on the driver’s side.

The subject accident is alleged to have occurred when Daniels left the vehicle and
began welding without notifying his team members. According to Daniels, Employee and
Diffee had been ribbing him about being a crew leader and no longer having to weld.
Daniels testified that after they stopped at the empty lot, he exited the vehicle from the
front passenger door, went to the back of the truck, and prepared the various parts for
welding. When he lit the welding torch, it immediately sparked an explosion. Daniels
testified that he did not know Employee’s or Diffee’s locations when he lit the torch.

Diffee stated he was on the phone with his wife when the team arrived at the empty
lot. While still on the phone, he exited the vehicle from the driver’s side and walked toward
the back of the truck, placing an empty and uncapped Gatorade bottle from his lunch on
the rear of the truck beneath the two hose reels on the back passenger side of the truck.
Diffee noted it was “extremely common” for them to keep a bottle or cup available to pour
water on welded pieces to cool them down. After placing the Gatorade bottle on the rear
of the truck, he returned to the front passenger side of the truck to put his phone away and
retrieve his work gloves from the floorboard. While he was walking from the front of the
truck to the back of the truck, he heard the explosion and saw a “white flash” but was not
sure what happened or what had caused the explosion. After the explosion, Diffee noted
the Gatorade bottle was no longer on the back of the truck and there was a “scorch mark”
where the bottle had been sitting. Daniels stated that he did not know what happened, but
he believed acetylene gas from the welding torch hose may have collected inside the bottle,
causing the bottle to explode when the welding torch was lit.

Employee stated that, when they arrived at the empty lot, he was on the telephone
with his significant other, so he remained in the back seat on the driver’s side of the vehicle.
He then explained what happened after he ended the call:

I got out [of the truck] to see what the – plan for the – the job was. And so I
walked around to see what – you know, what our plan was, and I was
unaware that the – the crew had [begun] working. And I got near the – the
back of the truck and it was lights out.

Employee related, and his co-workers verified, that there had been no meeting to prepare
for the job and that Daniels did not tell the others when he was beginning to weld.

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Employee stated he did not hear the work beginning while he was inside the truck on his
phone. Employee recalled the only person he saw at the back of the truck was Daniels and
the explosion happened “within seconds” of his seeing the torch in Daniels’s hand.
Employee was not wearing any personal protective equipment (“PPE”), including his
safety glasses, at the time of the explosion and gave conflicting accounts of whether he was
holding his glasses at that time or if the glasses were located in a bin in the back of the
truck. Employee testified he had no idea that Diffee had placed a plastic bottle in the back
of the truck until the company began investigating the accident.

Following the incident, Daniels and Diffee, who were both uninjured except for a
cut to Daniels’s lip, transported Employee to the emergency room at Regional One Health
for a traumatic eye injury as a result of the explosion. The medical records reflect that the
mechanism of injury was “welding and explosion during welding.” Employee sustained
lacerations to his left temple, both arms, and right eye. The description of the incident
contained in the emergency room records reflect that Employee was a “25 [year old white
male] who was welding when a bottle exploded[,] and his eye was lacerated. H[e] received
lacerations to the left temple and bilateral forearms as well.” Employee ultimately lost his
right eye and received a prosthetic eye, after which he had additional medical care for
complications related to the prosthetic eye. 1 Medical records prepared throughout the
course of Employee’s treatment reflect that Employee was injured when a container
exploded near him as he exited a work truck.

Employer’s Investigation

Employer began its investigation on the day of the accident. Mark Ward (“Ward”),
Employer’s supervisor of corporate safety, was tasked with investigating the accident. As
part of the investigation, Daniels provided a written statement on January 17, the day of
the accident, indicating that the incident had occurred on Elvis Presley Boulevard, not
Benjestown Road. He stated he believed that, because one of the tanks of gas feeding the
torch had been left on, “the bottle that was sitting on the back of the truck got filled up
from the torch.” While examining the truck, Ward observed the “scorch mark” the welding
crew believed was left after the bottle apparently exploded. He then examined the Elvis
Presley Boulevard location but found no evidence of an explosion. He questioned Daniels
again regarding the location of the accident, and Daniels told him the explosion occurred
behind the building. The next day, January 18, Daniels admitted he had lied about the
location of the accident and told Ward that the incident actually happened in the empty lot
at Benjestown Road. He provided a second written statement in which he indicated he
heard a “boom” near where the bottle was sitting when he lit the torch. Daniels stated he
had “no clue” what happened, but he speculated that the bottle filled with acetylene and
lighting his welding torch “made that area and the bottle explode.”

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Employee’s injuries are not at issue in this appeal. Thus, we forego an in-depth discussion of the extent
and nature of Employee’s injuries and subsequent medical treatment.
3
On January 19, Daniels provided a recorded statement. He noted that the crew chose
the Benjestown Road location because it was a good area to weld, although he himself had
never used it as a location to weld and had only driven by the location previously. Daniels
stated he did not see the bottle when he was preparing to weld, and he acknowledged that
he did not, on that day or as a matter of practice, conduct safety briefings or meetings at
job sites before starting work. He also stated he did not know where Employee or Diffee
was located when he began welding. Daniels also provided a statement to TOSHA that
indicated he was working on the bench “right underneath” the reel, and the top reel hose
was on because the tanks had been changed three days before the incident. 2

As part of the investigation, Diffee also provided a statement indicating that he often
saved empty beverage bottles so they could be filled with water for cooling parts during
welding, which he indicated was a standard practice among the welders. After the incident
occurred, Diffee “rolled the hose up [and] turned the torch off before we left [for the
hospital].” While doing so, he noted that the tip of the torch “pointed straight down” toward
where the bottle had been sitting. Diffee indicated his belief that the welding torch’s
position relative to the empty bottle coupled with the free flow of oxygen and acetylene
caused the bottle to fill with combustible gas and then explode when the welding torch was
lit.

Employee’s statement reflects that he has little memory of the relevant events of
that day. He was able to recall some medical treatment he received in the emergency room
but could not remember what happened on the way there, stating that everything was “a
blur.” He acknowledged that he did not know where his co-workers were at the time of
the explosion and that he was not wearing his safety glasses at the time of the accident,
explaining that he did not know the work had begun.

At the conclusion of its investigation, Employer issued a report in which it noted
Daniels failed to conduct safety briefings, failed to protect his work crew, and committed
other company safety violations. Although Employer’s report recommended corrective
action, it did not include any suggestion that the incident was due to horseplay. TOSHA
also investigated the incident, after which it cited Employer with a “serious violation”
because Employee was not wearing eye protection. Its report did not mention horseplay.

Employer, during its internal investigation, found a bottle at the Benjestown Road
location that looked like it had exploded, and Employer believed that this bottle was the
one that injured Employee. Employer later found three additional bottles in the same
condition at that location. 3 During his effort to recreate how the accident may have
2
The record contains some references to a practice of leaving such a hose in the “on” position for newly
filled tanks in an effort to relieve pressure inside the hose.
3
These bottles were found approximately two months after the incident. There is no evidence in the record
connecting these bottles to this incident or to the members of this welding team. There is no evidence in
4
occurred, Ward made a video to demonstrate how a bottle filled with acetylene and oxygen
is damaged when ignited by a welding torch. He concluded that the result of his experiment
accurately replicated the condition of the bottles found at the Benjestown Road location.
As a result of his experiments, Ward determined that the explosion was most likely caused
by Employee and one or both other crew members intentionally filling the Gatorade bottle
with flammable gas then igniting it. In a supplemental declaration, and in response to
Diffee’s claim that the hose from a torch was leaking or blowing acetylene and oxygen into
the bottle, Ward stated there “was no way the hose was leaking [a]cetylene” into the bottle
because acetylene is lighter than air and, for that reason, would “dissipate” out of an empty
uncapped bottle. Ward performed four separate experiments in an effort to recreate the
incident and concluded that an explosion “occurred consistently” only when an ignition
source was very close to a bottle that was intentionally filled with acetylene and oxygen.
It was also Ward’s belief that someone could only “be injured from these explosions if they
were no more than an arm’s length from the Gatorade bottle.” Finally, Ward noted “the
wind was blowing at 6.7 mph” that day, and he opined that a Gatorade bottle cannot remain
upright and spontaneously fill up with a mixture of oxygen and acetylene in such
conditions. Thus, he concluded “this was an intentional non-work-related act of
horseplay.” As a result of this investigation, Employer stopped paying benefits and later
terminated Employee and Daniels for misconduct.

Testimony at Expedited Hearing

During the expedited hearing, Employee testified that he always used safety
equipment, explaining that, “when welding[,] . . . we must wear Shade 5 welding glasses,
welding gloves, and any other PPE for that jobsite.” He noted that Diffee was driving,
Daniels was in the front passenger seat, and he was sitting in the back seat behind the driver
when they arrived. Employee was the last person out of the vehicle and testified that he
did not know Daniels had started welding because no one had said anything. He stated it
was common for the crew to pre-weld at different locations, and they went to the isolated
lot on Benjestown Road because it was safer. Employee denied that he or any other
member of his crew was engaged in horseplay or intentionally blew up Gatorade bottles.
Employee also denied that he made any statements to medical providers at the emergency
room suggesting he was the one welding at the time of the explosion.

Diffee testified that he put the bottle at the rear of the truck and confirmed there was
black soot in that spot after the explosion. He stated he was not wearing PPE at that point
because he had not started working. Diffee denied intentionally blowing up bottles and
testified, “[n]ever in my life would I ever do anything to not only endanger myself, but to
endanger people that I care about that have children, that have families. That’s absolutely

the record that these bottles underwent any type of testing. Employer admitted it is no longer in possession
of these bottles, as they were inadvertently thrown away by cleaning staff. There is no evidence that
Employee was afforded an opportunity to examine the bottles.
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not in no shape, way, form, or fashion [what happened].” In response to Employer’s
argument that acetylene is lighter than oxygen and, therefore, the incident could not have
occurred the way Diffee said it did, he stated that he believed Ward’s video supported his
theory of what happened that day, stating

[a]cetylene comes out of that torch at 10 PSI. It’s going to travel quite a
distance before it becomes unaffected by that PSI and becomes lighter than
air. So, sure, it’s lighter than air, but if it’s going down, . . . and there’s some
time to create a confined space – the bottle – it doesn’t have to be pointed
directly at it, whatever. That acetylene is coming out at 10 PSI. It’s traveling
quite a bit of distance before it becomes lighter than air, and it’s collecting in
the bottle because it’s just constantly coming out of that torch that [Daniels]
was unaware of.

Diffee went on to testify that he was “made to feel like I was dumb for even saying it was
– it was a freak accident or – you know, they were just instantly telling me that, ‘Oh, we –
you were horseplaying.’” He reiterated that he believed it was a “freak accident” and that
he understood the “basic physics of a gas that’s lighter than air, but it has 10 pounds of
pressure forcing it down until it explodes.” Diffee testified that he resigned in 2024 due to
the handling of the investigation and the way he was treated after he returned to work.

Daniels also testified during the expedited hearing, stating he did not intentionally
blow up a Gatorade bottle that day and did not engage in any kind of horseplay. He
confirmed he was the individual performing the welding at the time the incident occurred
and testified that “[w]hen I started the torch is when [the explosion] happened.” Daniels
said the explosion happened “immediately” after the welding torch was lit.

Ward testified for Employer and stated that the description of the incident given by
Employee and his co-workers did not make sense, so he researched “acetylene bombs” on
YouTube and found them “all over the place.” He testified to finding videos about how to
make acetylene bombs and attempted to recreate what the crew said occurred with the
Gatorade bottle. He testified to the specific gravity of acetylene as well as that of air and
oxygen and restated that, in his opinion, what the men described “didn’t happen.”
However, Ward acknowledged that he is not an expert or an accident reconstructionist.
Moreover, during this hearing, Employer made no effort to qualify Ward as an expert under
Tennessee Rule of Evidence 702.

Joshua Davis (“Davis”), Manager of Corporate Investigations and Loss Prevention
for Employer, testified that he noted inconsistencies between Employee’s, Davis’s, and
Diffee’s accounts of where the incident occurred, where each man was at the time of the
incident, and whether Employee was the individual welding. He stated that, on March 21,
2023, approximately two months after the incident, he discovered three water bottles in a
ditch next to where the truck was purportedly parked at the Benjestown Road location. All

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three bottles were in the same condition as the one Ward found the day after the incident.
Davis also testified that, when he placed an empty Gatorade bottle on the back of a truck
in the same wind conditions as existed on the day of the accident, the bottle blew over four
times. He testified that he believed it was “impossible” to recreate the explosion exactly
as the crew said it happened, although, ultimately, he acknowledged he could not say “for
certain” that the explosion was intentional.

Expedited Hearing Order

In its September 10, 2024 order, the trial court concluded Employer had not
produced sufficient evidence to support its affirmative defense alleging that Employee
failed to wear appropriate PPE by noting that Employer did not offer any evidence of bona
fide enforcement of the rule, which is an essential element of the defense. The court also
found that Employer’s theory of the accident, upon which it relied to support its willful
misconduct defense, was based on “supposition, circumstantial evidence, and what [Ward]
called common sense. That common sense led him to believe that the accident could not
have occurred as the men alleged, resulting in his experiments.” The court noted that
Employer’s theory was not “based on ordinary knowledge or common experience,” and
wrote:

Rather, the specific gravity of air, oxygen and acetylene are not subjects
within a layperson’s knowledge. Neither are the effects of wind speed and
direction on a given afternoon. Here, knowledge of those subjects came only
from amateur research, not from expertise. Even if a layperson gains
knowledge through research, that does not qualify him to confirm
scientifically valid experiments. See generally McDaniel v CSX Transp.,
S.W. 2d 257, 265 (Tenn. 1997) (discussing factors for determination of
scientific validity.)

Finally, the court addressed the inconsistencies and initial inaccuracies of the
workers’ recounting of the event. The trial court found that, even in light of these
discrepancies, there was no direct evidence that the injury was the result of horseplay or
intentional misconduct. The court noted that all three men testified they did not
intentionally make or explode acetylene bombs, and Employer produced no witnesses to
testify otherwise. The court determined the members of the welding team were credible
witnesses, noting that Diffee’s testimony that he placed a bottle under the hose reels was
supported by the physical evidence. Furthermore, the court noted Employer’s own internal
report of the incident identified causative factors contributing to the incident and suggested
corrective actions, but it made no mention of horseplay. Thus, the court concluded
Employee was likely to prevail at trial in proving a compensable accident and ordered
Employer to pay Employee’s outstanding medical bills and to furnish ongoing medical
treatment. Employer has appealed.

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Standard of Review

The standard we apply in reviewing the trial court's decision presumes that the
court's factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2024). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland Grp.
of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need
be afforded the trial court’s findings based upon documentary evidence.” Goodman v.
Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of
statutes and regulations are questions of law that are reviewed de novo with no presumption
of correctness afforded the trial court's conclusions. See Mansell v. Bridgestone Firestone
N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our obligation
to construe the workers’ compensation statutes “fairly, impartially, and in accordance with
basic principles of statutory construction” and in a way that does not favor either the
employee or the employer. Tenn. Code Ann. § 50-6-116 (2024).

Analysis

Employer raised several issues on appeal, which we combine and restate as whether
the trial court erred in its assessment of the evidence by rejecting Employer’s defenses and
determining Employee would likely prevail at trial. We conclude that the evidence does
not preponderate against the trial court’s findings at this interlocutory stage of the case.

Affirmative Defenses

Tennessee Code Annotated section 50-6-110 identifies certain types of work
injuries not covered by the Workers’ Compensation Law, including injuries caused by an
employee’s “willful misconduct” and those caused by an employee’s “willful failure or
refusal to use a safety device.” Tenn. Code Ann. § 50-6-110(a)(1) & (a)(4). When an
employer raises any defense based on section 110(a), “the burden of proof shall be on the
employer to establish the defense.” Tenn. Code Ann. § 50-6-110(b) (emphasis added). We
have previously addressed appeals in which an employer asserted affirmative defenses
under section 110(a) at an interlocutory stage of the case. In Glasgow v. 31-W Insulation
Co., Inc., No. 2017-05-0225, 2017 TN Wrk. Comp. App. Bd. LEXIS 51 (Tenn. Workers’
Comp. App. Bd. Sept. 6, 2017), we reiterated the four-part test for addressing willful
misconduct or willful failure to use a safety device set out by the Tennessee Supreme Court
in Mitchell v. Fayetteville Public Utilities, 368 S.W.3d 442 (Tenn. 2012). To prevail on
these affirmative defenses, the employer has the burden to prove the following: (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

8
enforcement of the rule; and (4) the employee’s lack of a valid excuse for violating the
rule. Id. at *13 (citing Mitchell, 368 S.W.3d at 453).

Moreover, in Iboy v. Kenton Management, LLC, No. 2017-06-1855, 2018 TN Wrk.
Comp. App. Bd. LEXIS 23 (Tenn. Workers’ Comp. App. Bd. May 8, 2018), we addressed
an employer’s assertion that its affirmative defense of willful misconduct defeated the
employee’s interlocutory request for benefits:

Noting that the lesser evidentiary standard applicable at the expedited
hearing stage of litigation “does not require one to prove ‘each and every
element’ of one’s claim,” Employer argues that “[n]either should [the court]
require an Employer to definitely prove each and every element of an
affirmative defense” at the expedited hearing stage. However, as previously
noted, irrespective of the burden of proof placed on an employer to establish
defenses under section 50-6-110(a), section 50-6-239(d)(1) provides that the
standard applicable in determining whether an employee is entitled to
benefits at an expedited hearing is whether the evidence is sufficient for the
court to determine “that the employee would likely prevail at a hearing on the
merits.” Tenn. Code Ann. § 50-6-239(d)(1) (emphasis added). Thus, a trial
court can consider whether an employer has come forward with sufficient
evidence in support of an affirmative defense at an expedited hearing, but, in
the context of an expedited hearing, such considerations are relevant only in
assessing whether the employee is likely to prevail at trial.

Id. at *17-18.
Alleged Safety Rule Violation

Here, it is undisputed that wearing eye protection and other PPE is required by
Employer when employees are welding; that Employee understood the gravity of the PPE
requirement; and that Employee was not wearing eye protection at the time of the incident.
Employee argues that he did not willfully fail to wear eye protection because he did not
know that Daniels had begun welding. Daniels’s and Diffee’s testimony supports
Employee’s assertion, as it is undisputed based on the contents of this record that Daniels
told neither Employee nor Diffee that he was beginning to weld. Moreover, there was no
evidence presented during the expedited hearing establishing Employer’s bona fide
enforcement of the rule, which is an essential element of the defense.

Thus, we agree with the trial court that Employer did not come forward with
sufficient evidence that its affirmative defense is likely to defeat Employee’s claim at trial.
Although Employee himself gave conflicting accounts of where his PPE was located at the
time of the explosion, it is unrefuted that he was not wearing his PPE because he did not
know his co-worker had started welding. Moreover, Employer’s own internal report of its
investigation noted the existence of various violations related to Daniels’s supervisory

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duties and failures to enforce safety rules. In other words, Employer’s own investigation
determined Employee’s supervisor failed to follow safety rules, not Employee.
Furthermore, Employer has presented no evidence, particularly in light of the violations
identified by its internal investigation coupled with TOSHA’s investigation, that it engaged
in bona fide enforcement of any safety rule requiring supervisors to conduct job briefings
or otherwise discuss the work with employees prior to beginning any welding or that there
was a safety rule requiring Employee to wear his PPE when active welding was not taking
place. As we have explained previously, “[i]t is axiomatic that to succeed with [a willful
misconduct] defense, the employer must also establish that there was, in fact, a violation
of a safety rule.” Roper v. Allegis Group, No. 2016-01-0546, 2017 TN Wrk. Comp. App.
Bd. LEXIS 14, at *7 (Tenn. Workers’ Comp. App. Bd. Feb. 10, 2017). In the absence of
proof showing regular, bona fide enforcement of a known safety rule, we cannot conclude
the trial court erred in determining Employer’s affirmative defenses did not, at this stage
of the case, impact Employee’s likelihood of prevailing at trial in proving the occurrence
of a compensable accident.

Alleged Willful Misconduct

Employer also asserts Employee’s interlocutory claim for benefits should be denied
because he was injured while engaging in willful misconduct, specifically, horseplay that
included intentionally causing beverage bottles to explode. On appeal, Employer contends
the trial court

failed to consider any of the cold, hard investigative findings by two highly
trained individuals and chose to base its ruling on the notion that “common
sense” dictates that Employee did not act so foolishly, ignored the on-site
presence and [Employer’s] discovery of multiple additional exploded plastic
bottles, disregarded several inconsistencies in the stories told by Employee
and his co-workers and the impossibility of their story that [Daniels],
standing directly on top of the explosion could be uninjured but that
Employee, several feet away, could suffer burns, lacerations, and the loss of
an eye.

Employer emphasizes the fact that Daniels initially misled Employer about where the
incident occurred; that Employee and his co-workers gave inconsistent statements
regarding several facts; and that the story given by Employee and his co-workers “did not
make any rational or scientific sense.”

Although neither Ward nor Davis was proffered as an expert witness, subject to
examination of their qualifications, Employer argues that Rules 701 and 702 of the
Tennessee Rules of Evidence allow their opinion testimony and that the trial court failed
to give that testimony appropriate weight. Employer insists that the testimonies of both
Ward and Davis about their respective investigations and subsequent findings embrace an

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ultimate issue to be decided by the trier of fact, thus making their testimony probative and
material to Employer’s affirmative defenses. Employer also noted that Employee did not
object to the admissibility of the testimony and maintains that both individuals possess the
knowledge, skill, experience, training, and education to testify competently regarding how
the incident could, or, more importantly, could not have occurred. Employer argues that
the court’s characterization of Ward’s investigation as “amateur” is erroneous because he
“has had years of experience and training with respect to the elements of acetylene and
oxygen during his tenure” with Employer. During oral argument, Employer ultimately
acknowledged that neither Ward nor Davis was proffered as an expert and that their
investigations and opinions were those of lay witnesses. Nonetheless, Employer argued
extensively at oral argument that simple common sense combined with Employer’s
investigative results should dictate the outcome of this appeal.

Tennessee Rule of Civil Procedure 701 states that the opinion testimony of a non-
expert witness “is limited to those opinions and inferences which are: (1) rationally based
on the perception of the witness and (2) helpful to a clear understanding of the witness’s
testimony or a determination of a fact in issue.” Tenn. R. Evid. 701(a). Here, neither Ward
nor Davis witnessed the incident. Therefore, their “perceptions” are limited to after-the-
fact observations of the scene and experiments based, in part, on YouTube videos. We
conclude the trial court did not err in its assessment of the weight of such testimony at this
stage of the case.

With respect to Employer’s theory of horseplay, Employee responded that any such
theory is pure conjecture. The only direct testimony as to what happened came from the
three eyewitnesses at the scene of the accident, and all three witnesses denied any efforts
to intentionally make the bottle explode or otherwise engage in any act that could be
deemed horseplay. Employer’s theory, therefore, is heavily dependent on the scientific
validity of its accident reconstruction experiments, which were not conducted by an
accident reconstruction expert. In short, Employer has presented no proof other than lay
witnesses’ opinion testimony that the explosion was intentional.

Although the three eyewitnesses’ versions of events contained several
inconsistencies, Employer has not shown how, precisely, those inconsistencies are relevant
to or probative of their theory of the case. As noted by the trial court in its order, we have
previously concluded an employer’s theory as how an accident may have occurred is not
sufficient to meet its burden of proving willful misconduct. Wilder v. Monroe County
Govt., No. 2022-01-0177, 2023 TN Wrk. Comp. App. Bd LEXIS 1 (Tenn. Workers’ Comp.
App. Bd. Jan. 6, 2023). At this stage of the case, Employer’s theory that Employee
intentionally exploded the bottle, like the employer’s theory in Wilder, is “based on
supposition, conjecture, and a modicum of circumstantial evidence as to possible motive
[and] lacks sufficient evidence to support it.” Id. at *12-13. Several of the eyewitnesses’
inconsistencies, such as where each man was standing when the bottle exploded, could be
explained simply by the sudden and traumatic nature of the incident. Daniels

11
acknowledged initially misleading Employer with regard to the location of the accident,
but he corrected that statement the following day and explained why he indicated a different
location previously. Other than Daniels’s initial falsehood concerning the location of the
explosion, Employer did not prove that any inconsistency or inaccuracy was intentional or
meant to deceive Employer, and we conclude the evidence presented does not preponderate
against the trial court’s findings at this time.

In short, Employer asserts Employee must have been injured as a result of horseplay.
To support this assertion, Employer relies on alleged scientific testing performed by a lay
person to assert that the incident could not have occurred as described by Employee and
his co-workers. Employer also relies on testimony concerning additional bottles Davis
discovered at the site of the accident two months later that appeared to have exploded.
However, at some point after those bottles were discovered and brought to Employer’s
premises, they were inadvertently thrown away. There is no evidence in the record that
those additional bottles were subjected to any testing, and Employee apparently had no
opportunity to view or examine the additional bottles. There is no evidence those bottles
belonged to Employee or any co-worker; that they were involved in any episode of
horseplay by any employee of Employer; or that this evidenced a pattern of misconduct by
Employee or his co-workers. In sum, there is insufficient evidence in this record to support
Employer’s theory of horseplay. 4

Although Employer encourages us to use “common sense” to conclude Employee’s
injury must have been the result of willful misconduct, the law requires that we consider
each party’s respective burdens of proof and determine whether the preponderance of the
evidence supports the trial court’s interlocutory determination that Employee is likely to
prevail at trial. Tenn. Code Ann. § 50-6-239(c)(7). We conclude that the preponderance
of the evidence supports the trial court’s decision at this interlocutory stage of the case.

Conclusion

For the foregoing reasons, we affirm trial court’s order and remand the case. Costs
on appeal are taxed to Employer.

4
During oral argument, Employer insisted that both we and the trial court could take judicial notice that
acetylene is lighter than air and, if proper judicial notice of this scientific fact were taken, it supports their
client’s theory of horseplay. We conclude, however, that Employer overstates the significance of that
scientific fact as it relates to the circumstances of this case. Even if, pursuant to Tennessee Rule of Evidence
201(b), we can determine the accuracy of that scientific fact “by resort to sources whose accuracy cannot
reasonably be questioned,” that does not add any strength to Employer’s theory of how this explosion
occurred given that we do not have reliable expert testimony regarding how the relative weight of acetylene
is affected by being in a pressurized state, how pressurized gas is released from the hose in question, the
degree of force involved when the gas is released, how close the mouth of the plastic bottle was to the
source of the leaking gas, how long the plastic bottle remained in place prior to the explosion, and any
number of other variables that could impact how this event occurred.
12
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

William Markin ) Docket No. 2023-08-7648
)
v. ) State File No. 4916-2023
)
Memphis Light, Gas )
& Water Division, et al. )
)
)
Appeal from the Court of Workers’ ) Heard January 21, 2025
Compensation Claims ) in Jackson, Tennessee
Allen Phillips, Judge )

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 19th day
of February, 2025.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Casey Shannon X cshannon@thomasonlaw.com
Noor Obaji nobaji@thomasonlaw.com
Monica Rejaei X mrejaei@nstlaw.com
jkarpovich@nstlaw.com
Allen Phillips, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims

Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov