Ray Donald Hawkins v. Metropolitan Government of Nashville & Davidson County Tennessee - Concurring ( 1996 )

IN THE SUPREME COURT OF TENNESSEE
SPECIAL WORKERS’ COMPENSATION APPEALS PANEL
AT NASHVILLE
RAY DONALD HAWKINS, )
) DAVIDSON CIRCUIT
Plaintiff/Appellant, ) No. 93C-674 Below
)
)
VS. ) Hon. Hamilton V. Gayden, Jr.,
) Judge
)
METROPOLITAN GOVERNMENT OF ) No. 01-S-01-9508-CV-00126
NASHVILLE & DAVIDSON COUNTY )
TENNESSEE acting by and through )
the NASHVILLE ELECTRIC POWER )
BOARD; and acting by and through
THE ELECTRIC EMPLOYEES’
)
)
FILED
CIVIL SERVICE & PENSION BOARD, )
) May 3, 1996
Defendants/Appellees. )
Cecil Crowson, Jr.
Appellate Court Clerk
For Appellants: For Appellees:
Thomas E. Stewart Douglas Fisher
Stewart & Black Howell & Fisher
Madison, Tennessee Nashville, Tennessee
MEMORANDUM OPINION
Members of Panel:
Adolpho A. Birch, Jr., Associate Justice
Ben H. Cantrell, Special Judge
Jerry L. Smith, Special Judge
AFFIRMED Cantrell, Special Judge
This workers’ compensation appeal has been referred to the Special
Workers’ Compensation Appeals Panel of the Supreme Court in accordance with
Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of
findings of fact and conclusions of law.
The appellant sued his employer for workers’ compensation benefits
covering mental and emotional disability which resulted from being informed that he
was about to be fired. The trial judge dismissed the action because it did not state a
claim on which relief could be granted. We conclude that the judgment should be
affirmed.
I.
The complaint alleged that the appellant had worked for the Nashville
Electric Service for thirty-one years, serving finally as Executive Assistant General
Manager. On March 11, 1992, one hour before a scheduled meeting of the Power
Board, a Board member informed the appellant that at the meeting the Board would
vote to dismiss him. Although the rumor turned out to be false, the appellant alleged
that the shock and fright produced by the unwelcome news caused such mental and
emotional stress that he became permanently disabled.
The defendant filed a motion to dismiss for failure to state a claim. The
trial judge initially overruled the motion but decided to grant it, after further
proceedings in the case.
II.
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Mental injuries are compensable under the workers’ compensation laws
when causally connected to a work-related accident. Wade v. Aetna Casualty and
Surety Co., 735 S.W.2d 215 (Tenn. 1987); Jose v. Equifax, 556 S.W.2d 82 (Tenn.
1977). An injury by accident is one which cannot be reasonably anticipated, is
unexpected and is precipitated by unusual combinations of fortuitous circumstances.
A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141 (Tenn.
1970). The “accident” does not have to involve physical injuries. Sexton v. Scott
County, 785 S.W.2d 814 (Tenn. 1990). A specific incident of stress such as an
argument with a co-worker, or an angry confrontation with a superior amounts to an
accident at work, Cabe v. Union Carbide Corp., 644 S.W.2d 397 (Tenn. 1983); Block
v. State, 721 S.W.2d 801 (Tenn. 1986); but the statutory definition of accident “does
not embrace every stress or strain of daily living or every undesirable experience
encountered in carrying out the duties of a contract of employment.” Jose v. Equifax,
556 S.W.2d 82 at 84 (Tenn. 1977).
One of the latest cases involving mental injuries resulting from an
alleged accident at work is Tolbert v. Baptist Hospital, No. 01-S-01-9309-CH-00141
(filed in Nashville June 24, 1994), in which the employee went into a severe
depressive state after being criticized by her supervisor for poor job performance. A
workers’ compensation appeals panel held that the injury did not result from an
accident as defined in the workers’ compensation law. The Supreme Court adopted
the panel’s conclusion and denied the employee’s motion for review.
On a motion to dismiss we take the facts alleged as true and in the light
most favorable to the plaintiff. The facts alleged in this case are similar to the facts
in the Tolbert case, and we conclude that the result should be the same. This panel
is of the opinion that when an employee suffers depression as a result of being
informed that he is about to be terminated, the injury does not arise out of an accident
as defined in the workers’ compensation law.
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III.
The appellant also argues that the trial judge erred in granting the
motion to dismiss after first overruling it. He combined that argument with the
assertion that the trial judge violated Tenn. R. Civ. Proc. 59.05 by not transferring the
case to another judge before granting the motion. In our judgment neither argument
has any validity.
An order by the trial judge that does not dispose of all the claims and the
rights and liabilities of all the parties is subject to revision at any time before the entry
of a “final” judgment. Rule 54.02, Tenn. R. Civ. Proc.; Rule 3(a), Tenn. R. App. Proc.
The trial court’s order overruling the motion to dismiss was not a final order and the
trial judge acted properly in later granting the motion.
As to the obligation to transfer the case to another judge, that obligation
arises only when the trial judge has granted a new trial in a jury case because the
verdict is contrary to the weight of the evidence -- and then only where a party has
requested the transfer. Tenn. R. Civ. Proc. 59.06. Despite the appellant’s assertions
to the contrary, the trial judge’s decision was rendered as a matter of law and did not
involve a determination of the facts. Our rules do not prohibit a trial judge from
granting a motion to dismiss after first overruling it.
The judgment of the trial court is affirmed. Tax the costs on appeal to
the appellant.
_______________________________
BEN H. CANTRELL, SPECIAL JUDGE
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CONCUR:
_______________________________
ADOLPHO A. BIRCH, JR.,
ASSOCIATE JUSTICE
_______________________________
JERRY L. SMITH, SPECIAL JUDGE