Harris, Patricia v. Nashville Center for Rehabilitation and Healing

FILED
Mar 15, 2021
12:07 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Patricia Harris ) Docket No. 2019-06-1008
)
v. ) State File No. 31940-2019
)
Nashville Center for Rehabilitation )
and Healing, et al. )
)
)
Appeal from the Court of Workers’ ) Heard January 28, 2021
Compensation Claims ) via WebEx
Joshua D. Baker, Judge )
Affirmed in Part, Reversed in Part, and Remanded
The employee was injured in the course and scope of her employment when she slipped
and fell while attempting to avoid a large flying insect. The employer denied the claim,
asserting the employee’s injury did not arise primarily out of her employment. Relying on
the employee’s unrefuted testimony that roaches were part of the employee’s working
environment, the trial court determined that roaches were a hazard of the employment and
that the employee’s injuries arose primarily out of her employment. The court ordered the
employer to pay temporary and permanent disability benefits and medical expenses but
denied the employee’s request for attorney’s fees on the unpaid medical expenses. The
employer has appealed the award of benefits, and the employee has appealed the denial of
the request for attorney’s fees on the unpaid medical expenses. We affirm the trial court’s
determination regarding compensability, reverse the trial court’s denial of attorney’s fees
on the unpaid medical expenses, and remand the case.
Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Judge David F.
Hensley joined. Presiding Judge Timothy W. Conner dissented.
Richard R. Clark, Jr., and Lauren Ray Hall, Nashville, Tennessee, for the employer-
appellant/appellee, Nashville Center for Rehabilitation and Healing
Brett L. Rozell, Lebanon, Tennessee, for the employee-appellant/appellee, Patricia Harris
1
Factual and Procedural Background
Patricia Harris (“Employee”) was working as a certified nursing assistant (“CNA”)
for Nashville Center for Rehabilitation and Healing (“Employer”) when she sustained an
injury to her left wrist in the early morning hours of April 25, 2019. Employee was
performing rounds to check on patients when an insect startled her by suddenly flying into
her face. While attempting to deflect and avoid the insect, Employee fell, injuring her left
wrist. She was taken by ambulance to Saint Thomas Midtown Hospital where she was
diagnosed with a closed, nondisplaced distal radius fracture of her left wrist. She was next
seen by a provider at CareNow Urgent Care who confirmed her diagnosis and made a
referral to an orthopedic specialist. On May 3, Employee was evaluated by Dr. Jane Siegel,
an orthopedic surgeon, who placed Employee in a splint and returned her to work with
restrictions.
Employer filed a Notice of Denial on May 8 asserting Employee’s injury did not
arise primarily out of the employment. Following Employer’s denial, Employee continued
to treat with Dr. Siegel under her private insurance and, during her May 17 visit, decided
to undergo surgical repair of her wrist. During this visit, Dr. Siegel restricted Employee
from working until after surgery. On May 21, Dr. Siegel performed an open reduction and
internal fixation of Employee’s fracture.
After filing a petition for benefits, Employee continued to treat with Dr. Siegel until
she was released on November 6. In a questionnaire sent to Dr. Siegel by Employee’s
counsel on September 23, Dr. Siegel agreed that Employee’s left wrist injury resulted from
her fall at work and that her employment contributed more than fifty percent in causing the
injury to her left wrist, considering all causes. Dr. Siegel was deposed on February 27,
2020, and testified that Employee retained a one percent permanent medical impairment as
a result of the workplace injury.
At trial, the parties stipulated that the medical treatment Employee received for her
injury was reasonable and necessary, that the medical expenses incurred for her treatment
were reasonable, that Employee had a one percent medical impairment as a result of her
injury, and the amount of Employee’s weekly compensation rate. The issues to be decided
by the trial court were compensability of Employee’s injury, Employee’s entitlement to
temporary disability benefits, and Employee’s entitlement to attorney’s fees and
discretionary costs.
Employee was the only witness to testify in person at trial. She stated that part of
her job involved “do[ing] rounds every two hours,” and that, at the time of the work
incident, she was performing rounds and checking on patients. She described the incident
resulting in her injury in the following manner:
2
[W]hen I got to room 608, I had my head down reading the paper that the
nurse had given me. And something come [sic] flying in my face. And when
I looked up it was a big old cockroach – it looked like a big cockroach, a big
flying bug that got up in my face. And I was trying to get it out of my face
and I slipped back and fell.
When asked about the “bug situation” at Employer’s facility, Employee stated it was
“[r]idiculous” and testified to seeing bugs on the patients’ beds. She said the presence of
bugs had been reported to Employer, explaining that when bugs are seen “you have to
report it.” Employee’s testimony as to the presence of insects inside the facility was
uncontroverted.
The trial court found Employee’s testimony credible with regard to having seen
insects in the facility on previous occasions and noted that Employer “offered no contrary
evidence.” Based upon Employee’s testimony, the court concluded that roaches were part
of the working environment and were a hazard of the employment, explaining
the roach became a hazard like a puddle or other object on the floor when it
entered the building. The bug flew at [Employee] as she walked down the
hallway. She tried to avoid it and fell, breaking her wrist. This was the cause
of her accident, and the Court holds the accident was compensable.
Following the trial, the court ordered Employer to provide reasonable and necessary
medical treatment for Employee’s wrist injury and appointed Dr. Siegel as the authorized
treating physician. The court awarded permanent partial disability benefits based on the
one percent medical impairment rating, accrued temporary disability benefits, and
discretionary costs. It also awarded Employee’s counsel a fee of twenty percent of
Employee’s permanent disability award and twenty percent of Employee’s temporary
disability award. The court denied Employee’s counsel’s request for a fee based on a
percentage of unpaid medical expenses, stating “[t]he law does not provide for an
attorney’s fee unless the employee pays for the treatment out of pocket.” Employer and
Employee have appealed.
Standard of Review
The standard we apply in reviewing a 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) (2020). 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.
3
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).
A trial court’s award of attorney’s fees is discretionary and an appellate court’s
review of such a decision applies an “abuse of discretion” standard of review. Grissom v.
UPS, No. M2016-00127-SC-R3-WC, 2017 Tenn. LEXIS 4, at *7 (Tenn. Workers’ Comp.
Panel Jan. 9, 2017). An abuse of discretion occurs if the trial court “applied incorrect legal
standards, reached an illogical conclusion, based its decision on a clearly erroneous
assessment of the evidence, or employ[ed] reasoning that causes an injustice to the
complaining party.” Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d
346, 358 (Tenn. 2008). 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 (2020).
Analysis
This appeal presents two issues. First, Employer contends the trial court erred in
determining that Employee’s injury arose primarily out of her employment. Second,
Employee contends the trial court erred in denying her attorney a fee based on twenty
percent of the contested medical expenses. We address each issue separately.
Whether Employee’s Injury Arose Primarily out of the Employment
Employer contends the proof was insufficient to establish that insects were a part of
Employee’s work environment and was insufficient to establish that the insects constituted
a hazard incident to the employment. As such, Employer contends Employee’s workplace
injury did not “arise primarily out of” the employment. 1 For the reasons that follow, we
conclude Employee’s injury arose primarily out of her employment.
The requirements that an injury “arise out of” and occur “in the course of”
employment are not synonymous, although both elements exist to ensure a work
connection to the injury for which the employee seeks benefits. Wait v. Travelers Indem.
Co. of Illinois, 240 S.W.3d 225 (Tenn. 2007). The term “in the course of” refers to the
time, place, and circumstances of the injury, while “arising out of” refers to causation.
1
Employer additionally asserts the trial court “based its decision on what amounts to a negligence analysis
in consideration of the causal connection between the employment and the injury.” Employer contends the
insect that flew in Employee’s face “was, at best, the proximate or ‘but for’ cause of the injury” and asserts
“proximate cause is not enough to establish a ‘causal connection.’” We disagree with Employer’s
characterization of the basis of the trial court’s analysis and find no merit in Employer’s insistence that the
trial court erroneously based its decision on a negligence analysis.
4
Cloyd v. Hartco Flooring Co., 274 S.W.3d 643 (Tenn. 2008). Here, it is undisputed that
Employee’s injury occurred in the course and scope of her employment. Accordingly, our
focus turns to whether Employee’s injury arose primarily out of her employment.
An accidental injury arises out of the employment “when there is apparent to the
rational mind, upon consideration of all of the circumstances, a causal connection between
the conditions under which the work is required to be performed and the resulting injury.”
Phillips v. A&H Const. Co., 134 S.W.3d 145, 150 (Tenn. 2004). The phrase “causal
connection” means “cause in the sense the accident had its origin in the hazards to which
the employment exposed the employee while doing his work.” Id. The determination of
whether an injury arose out of a worker’s employment is a question of fact. Id. at 149. 2
Tennessee appellate courts and courts in other jurisdictions have considered various
“risk doctrines” when faced with issues concerning whether a workplace injury arises out
of the employment. Professor Larson categorized these risk doctrines into five categories:
(1) the peculiar-risk doctrine; (2) the increased-risk doctrine; (3) the actual-risk doctrine;
(4) the positional-risk doctrine; and (5) proximate cause. See generally 1 Lex K. Larson,
Larson’s Workers’ Compensation § 3.01-.06 (Matthew Bender, Rev. Ed.). According to
Professor Larson, both “[t]he peculiar-risk test, requiring that the source of harm be in its
nature (as distinguished from its quantity) peculiar to the occupation, and the proximate-
cause test, requiring foreseeability and absence of intervening cause, are now largely
obsolete.” Id. at § 3.syn. As to the remaining three doctrines, Professor Larson concludes
that “[t]he increased-risk test is still the prevalent test in the United States today.” Id. at §
3.03. Further, he concludes that the actual-risk doctrine “is a more defensible rule [than
the peculiar-risk or increased-risk rule] since there is no real statutory basis for insisting
upon a peculiar or increased risk, as long as the employment subjected [the] claimant to
the actual risk that caused the injury.” Id. at § 3.04.
In a 1979 case, the Tennessee Supreme Court noted Professor Larson’s categories
of risk doctrines and stated that it had not adopted the positional-risk doctrine, explaining
that “[w]e think it may be an oversimplification to classify various jurisdictions as
following the peculiar-risk, the positional-risk or the actual risk-test, etc.” Hudson v.
Thurston Motor Lines, Inc., 583 S.W.2d 597, 600 (Tenn. 1979). In Hudson, the employee
drove his tractor-trailer to a Kentucky Fried Chicken and obtained an order to take away
from the establishment. While re-entering the truck’s cab with his meal he was shot by
assailants, permanently paralyzing him from the waist down. The trial court denied
benefits, concluding that, although the employee was in the course of his work at the time
of the assault, his injury did not arise out of the employment. Id. at 598. The Supreme
Court reversed the trial court, stating that “the result we reach in this case is not to be
2
We are also mindful that, in addition to the requirements identified in the cases noted above, Tennessee’s
Workers’ Compensation Law requires proof that the injury arose primarily out of and in the course and
scope of the employment. Tenn. Code Ann. § 50-6-102(14) (emphasis added).
5
construed as an adoption of the positional-risk test, or an abandonment of the peculiar-risk
test.” Id. at 600. The Court observed that “the standards employed by this Court in
deciding whether accidents arise out of employment have led to diverse results.” Id.After addressing several cases in which employees were injured as a result of
assaults, a fire, or a storm, the Court in Hudson turned to the particular facts leading to the
employee’s assault and concluded “these circumstances provide a rational connection with
the employment,” which the Court determined to be analogous to two of the cases
addressed by the Court. Id. at 603. The Court did not, however, adopt a specific risk
doctrine or a bright-line rule for determining whether an injury arises out of the
employment.
The Tennessee Court of Appeals was faced with a similar issue thirty-one years later
in Coleman v. St. Thomas Hospital, 334 S.W.3d 199 (Tenn. Ct. App. 2010). In Coleman,
the employees of a credit union, housed in a building owned by the defendant hospital,
alleged they suffered various injuries and medical conditions as a result of carbon
monoxide exposure. The employees filed a tort claim against the hospital asserting their
injuries did not arise out of their employment, and, therefore, they were not subject to the
exclusive remedy provisions of the workers’ compensation law. Id. at 201. The defendant
hospital filed a motion for summary judgment that the trial court denied, finding that the
plaintiffs’ tort claims were not barred by the exclusive remedy doctrine. Id. The Court of
Appeals granted the hospital’s request for an extraordinary appeal to address whether the
plaintiffs’ tort claims were barred by the exclusive remedy provisions of the workers’
compensation law. Addressing methods to determine when an injury arises out of the
employment, the Court of Appeals stated the following:
Various judicial “tests” and “doctrines” have emerged for determining when
an injury arises out of and occurs in the course of employment, such as the
“positional doctrine,” the “peculiar hazard doctrine,” the “foreseeability
test,” the “street-risk doctrine,” and others. However, our Supreme Court has
consistently abstained from adopting any particular judicial test, doctrine,
formula, or label that purports to clearly define the line between accidents
and injuries which arise out of and in the course of employment [and] those
which do not[.] The Court has repeatedly rejected the use of artificial labels,
stating that classification and labeling is not the best method of determining
whether an injury is compensable. The Court has found it difficult, perhaps
impossible to compose a formula which clearly defines those accidents
resulting in compensable injuries. As such, in Tennessee, [t]here is no
formula which will clearly define the line between accidents and injuries
which arise out of and in the course of employment and those which do not.
Instead, each case must be decided with respect to its own attendant
circumstances and not by resort to some formula.
6
Id. at 203-04 (internal quotations and citations omitted) (emphasis added).
The Coleman Court explained that the terms “arising out of” and “in the course of”
were not synonymous and identified what each phrase encompassed before summarizing
that an injury generally arises out of and is in the course of employment “if it has a rational
connection to the work and occurs while the employee is engaged in the duties of his
employment.” Id. at 204 (citations omitted). Further, the Court stated:
Our Supreme Court has often stated that an injury “must result from a danger
or hazard peculiar to the work or be caused by a risk inherent in the nature
of the work” in order to be compensable. See, e.g., Foreman [v. Automatic
Sys.], 272 S.W.3d [560,] 572; Anderson, 259 S.W.3d at 696; see also Wait,
240 S.W.3d at 228 (“Generally, for an injury to ‘arise out of’ employment, it
must emanate from a peculiar danger or risk inherent to the nature of the
employment.”). Accordingly, an injury that is purely coincidental,
contemporaneous, or collateral with the employment will not be considered
as arising out of the employment. Foreman, 272 S.W.3d at 572; Anderson,
259 S.W.3d at 696; Wait, 240 S.W.3d at 228.
Id. at 204 (emphasis added); see also Doe v. P.F. Chang’s China Bistro, No. W2016-
01817-COA-R9-CV, 2017 Tenn. App. LEXIS 584, at *12 (Tenn. Ct. App. Aug. 29, 2017).
Thus, Tennessee appellate courts have not established a bright-line rule or specific
risk doctrine that we are required to apply, and there is no statutory basis for requiring a
“peculiar” risk or an “increased” risk. Instead, an injury arises out of employment when
there is apparent to the rational mind, upon consideration of all the circumstances, a causal
connection between the conditions under which the work is required to be performed and
the resulting injury. Phillips, 134 S.W.3d at 150 (Tenn. 2004); see also Saylor v. Lakeway
Trucking, Inc., 181 S.W.3d 314, 318 (Tenn. 2005); Fritts v. Nat’l Cas. Corp., 163 S.W.3d
673, 677 (Tenn. 2005). Further, as noted in Coleman, in addition to a causal connection
that is apparent to the rational mind, the injury “must result from a danger or hazard
peculiar to the work.” Coleman, 334 S.W.3d at 204 (emphasis added). In other words,
rather than applying a specific risk doctrine, in order for the injury to arise primarily out of
employment, the totality of the circumstances must show both (1) a causal connection
between the conditions under which the work is required to be performed and the resulting
injury and (2) that the injury resulted from a danger or hazard peculiar to the work or was
caused by a risk inherent in the nature of the work. 3
3
In his dissent, our colleague states that we rely “in part on a more general statement” of the law as set out
in cases with dates of injury before the passage of the 2013 Workers’ Compensation Reform Act, adding
that “this is not a complete statement of the law in Tennessee for several reasons.” He fails to note our
inclusion of the requirement that an injury “must result from a danger or hazard peculiar to the work” as
Coleman instructs. In addition, Chaney v. Team Technologies, Inc., 568 S.W.3d 576 (Tenn. 2019), cited
by our colleague, likewise recognizes that “[t]o establish that an injury arose out of employment, an
7
Here, Employer asserts the proof was not sufficient to establish that insects were
part of Employee’s work environment or presented a hazard of the employment. The trial
court concluded that roaches in Employer’s facility “were part of the working
environment” and consequently, “a hazard of [her] employment.” We must decide whether
the preponderance of the evidence supports these factual determinations. The only
evidence in the record regarding the presence of roaches in the facility comes from
Employee’s testimony. The trial court acknowledged there was no “expert testimony about
a roach infestation” but found Employee’s uncontroverted testimony about the presence of
bugs inside the facility to be credible. Employee testified she often saw roaches while at
work and on patients’ beds. She testified employees were supposed to report seeing insects
to Employer and could file a maintenance request in that regard. 4 Employee claimed she
did not know where the bugs came from but described them as “humongous,” also
testifying that that the bugs “shouldn’t be on the patient’s bed. They shouldn’t be on me.”
Employee described with particularity what caused her to fall, testifying she was
performing rounds and reacted to the insect that suddenly flew in her face, which she said
caused her to fall and injure her wrist. The circumstances of her employment required her
to make rounds through the facility. She testified her duties included performing rounds
every two hours to check on her patients. In the course of performing those duties she
sustained an injury when the insect suddenly flew in her face, resulting in her efforts to
ward off the bug and her fall. Employer offered no proof concerning the presence or
absence of insects inside its facility, and Employee’s testimony was not disputed or
contradicted. Accordingly, we conclude the preponderance of the evidence established
that the presence of insects in Employer’s facility was part of Employee’s work
environment and presented a hazard peculiar to her work sufficient for us to conclude that
Employee’s injuries arose primarily out of her employment.
Attorney’s Fees
Employee’s counsel contends the trial court erred in denying his request for
attorney’s fees related to contested medical expenses. 5 In its order, the court stated “[t]he
law does not provide for an attorney’s fee unless the employee pays for treatment out of
pocket.” Because Employee’s private health insurance paid for the costs of treatment, the
employee has to allege enough facts to show ‘a causal connection between the conditions under which the
work is required to be performed and the resulting injury.’” Id. at 579 (citing Blankenship v. Am. Ordnance
Sys., LLS, 164 S.W.3d 350, 354 (Tenn. 2005)). Respectfully, we submit we are in agreement as to the
applicable law and differ here only in respect to whether the evidence was sufficient to establish that the
injury resulted from a danger or hazard peculiar to the work.
4
Employee did not produce any maintenance requests for roach or insect problems at Employer’s facility.
5
Although post-hearing submittals regarding the attorney’s fee request were filed by Employee’s counsel,
those documents were not part of the record on review.
8
court declined counsel’s request for fees related to disputed medical expenses. In
Employee’s brief on appeal, counsel asserts that “payment of any contested medical
expenses should be considered a recovery or award [and] the trial court’s decision on that
matter should be overturned.”
The Tennessee Supreme Court has held that contested medical expenses are
considered part of the “recovery or award” upon which attorney’s fees may be based. See
Langford v. Liberty Mutual Ins. Co., 854 S.W.2d 100, 102 (Tenn. 1993). We have
previously noted that the 2013 Workers’ Compensation Reform Act modified section 50-
6-226(a), which governs awards of attorney’s fees, but the changes did not vitiate or impair
the precedent established in Langford. Bowlin v. Servall, LLC., No. 2017-07-0224, 2020
TN Wrk. Comp. App. Bd. LEXIS 70, at *11 (Tenn. Workers’ Comp. App. Bd. Nov. 25,
2020). Thus, while the trial court is given discretion as to the award of attorney’s fees,
Employee’s contested medical expenses are to be considered part of Employee’s award for
purposes of attorney’s fees.
A plain reading of section 50-6-226(a)(1) indicates that the attorney’s fees awarded
in this instance would be “paid by the party employing the attorney.” Tenn. Code Ann. §
50-6-226(a)(1). Thus, an award of attorney’s fees based on a percentage of unpaid medical
expenses would be deducted from Employee’s award. We note, however, that during oral
argument counsel for Employee stated he did not want his client “negatively affected” by
an award of attorney’s fees reducing her recovery. Nevertheless, we find the trial court
applied an incorrect legal standard in limiting attorney’s fees to a percentage of the
expenses paid by Employee “out of pocket.”
Conclusion
For the foregoing reasons, we conclude the evidence does not preponderate against
the trial court’s compensability determination, and we affirm the trial court’s order with
respect to the award of temporary and permanent disability benefits, medical benefits, and
discretionary costs. We reverse the trial court’s determination that the recovery of
attorney’s fees for medical expenses is limited to a percentage of medical expenses paid by
Employee “out of pocket.” Accordingly, we remand the case for the trial court to address
the attorney’s fees consistent with this opinion. Costs on appeal are taxed to Employer.
9
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Patricia Harris ) Docket No. 2019-06-1008
)
v. ) State File No. 31940-2019
)
Nashville Center for Rehabilitation and )
Healing, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )
Dissent
Conner, J., dissenting.
This case requires us to consider the meaning of the statutory phrase “arising
primarily out of and in the course and scope of employment” as that phrase is used in
Tennessee Code Annotated section 50-6-102(14) (2020). Because I conclude the
majority opinion gives this phrase too expansive a meaning under the factual scenario
presented here, I respectfully dissent.
Courts in this state, as well as courts in other jurisdictions, have struggled
historically with defining statutory provisions addressing the work-relatedness of an
injury. According to the oft-cited Professor Larson, “[f]ew groups of statutory words in
the history of law have had to bear the weight of such a mountain of interpretation as has
been heaped upon this slender foundation.” Anderson v. Westfield Grp., 259 SW.3d 690,
695 (Tenn. 2008) (quoting 1 Lex K. Larson, Larson’s Workers’ Compensation § 3.01
(Matthew Bender, Rev. Ed.)). In attempting to explain this phenomenon, Professor
Larson described risk doctrines adopted by various jurisdictions as evolving from the
“peculiar-risk doctrine” to the “increased-risk doctrine,” then the “actual-risk doctrine,”
and finally the “positional-risk doctrine.” Larson at §§ 3.02–3.05. 1 Each step on this
continuum broadens the meaning of the phrase “arising out of employment,” making it
easier for an injured worker to establish the work-relatedness of his or her injury.
Determining which risk doctrine or legal test applies in any given factual scenario has
presented a daunting challenge.
1
Larson suggests that a fifth approach, the “proximate cause” test, is “virtually obsolete.” Id. at § 3.01.
1
The Tennessee Supreme Court has, at times, acknowledged and commented on
Professor Larson’s categorization of risk doctrines. For example, in Hudson v. Thurston
Motor Lines, Inc., 583 S.W.2d 597 (Tenn. 1979), the Court reviewed the risk doctrines
and examined a number of prior cases it described as having reached “diverse results.”
Id. at 600. It noted several cases where the court focused on whether the injury was
caused by a “foreseeable” event or “peculiar” hazard incident to the employment. Id. at
600-601. In adopting the “street risk doctrine,” for example, the Hudson Court concluded
that the injury suffered by the employee due to a random assault was a “foreseeable
hazard incident to the employment of a truck driver of a motor freight line.” Id. at 602.
After Hudson, Tennessee courts recognized various other doctrines to be applied in
specific factual scenarios. See, e.g., Carter v. Volunteer Apparel, Inc., 833 S.W.2d 492,
495 (Tenn. 1992) (recognizing the “personal comfort doctrine” to allow compensation for
injuries occurring while an employee is engaged in reasonably foreseeable “personal
comfort” activities at work); Anderson v. Westfield Grp., 259 S.W.3d 690, 696 (Tenn.
2008) (reaffirming the “direct and natural consequences” rule in circumstances where an
injury subsequent to the work accident was deemed to “flow from” the original injury).
In Wait v. Travelers Ind. Co. of Ill., 240 S.W.3d 220 (Tenn. 2007), the Supreme
Court addressed whether the “street risk” doctrine, adopted by the Court in Hudson,
applied in a situation where the injured worker was randomly assaulted while working in
her home. After reviewing the law governing assault cases, the Court noted that “for an
injury to ‘arise out of’ employment, it must emanate from a peculiar danger or risk
inherent to the nature of the employment.” Id. at 228 (emphasis added). In concluding
the employee’s claim did not fall under the street risk doctrine, the Court reasoned that
“[t]here is nothing in the record to fairly suggest or provide any weight to the assertion
that the plaintiff’s injuries were causally connected with the nature of her employment.”
Id. at 230 (emphasis added). Thus, it was not enough that the employee’s job placed her
in the position to be injured; the Court stressed there must be evidence supporting a
conclusion that the hazard which caused the injury was “connected with the nature of the
employment.” Id. (emphasis added).
As discussed in the majority opinion, in Coleman v. St. Thomas Hospital, 334
S.W.3d 199 (Tenn. Ct. App. 2010), the Tennessee Court of Appeals addressed a tort
claim filed against a hospital that housed a credit union where employees had allegedly
been exposed to carbon monoxide. The employees asserted they were not limited to
workers’ compensation benefits as their exclusive remedy because their injuries did not
“arise out of” their employment. Id. at 201. The trial court agreed with the plaintiffs and
denied the defendant’s motion for summary judgment. Id. On appeal, after discussing
Larson’s “risk doctrines” and concluding that Tennessee had adopted no set formula, the
Court of Appeals considered the arising out of requirement and explained that the
Supreme Court has “often stated” that an employee must prove the work injury resulted
“from a danger or hazard peculiar to the work or be caused by a risk inherent in the
nature of the work in order to be compensable.” Id. at 204 (emphasis added) (internal
2
quotation omitted). The court further noted that “an injury that is purely coincidental,
contemporaneous, or collateral with the employment will not be considered as arising out
of the employment.” Id. See also Chaney v. Team Technologies, Inc., 568 S.W.3d 576,
579 (Tenn. 2019) (“An employee cannot merely assert that her injury occurred at work;
she has to allege that her injury resulted from a ‘danger or hazard peculiar to the work or
be caused by a risk inherent in the nature of the work.’”) (quoting Blankenship v. Am.
Ordnance Sys., LLC, 164 S.W.3d 350, 354 (Tenn. 2005)); Adkins v. Studsvik, Inc., No.
E2014-00444-SC-R3-WC, 2015 Tenn. LEXIS 588, at *17 (Tenn. Workers’ Comp. Panel
July 21, 2015) (“The mere presence of the employee at the place of the injury because of
the employment is not sufficient, as the injury must result from a danger or hazard
peculiar to the work or be caused by a risk inherent in the nature of the work.”).
Thus, as recently as 2019, and on multiple occasions since 2007, Tennessee courts,
including our Supreme Court, have reiterated what I believe to be the general rule in
Tennessee: in order for an injury to arise primarily out of the employment, the employee
must show a “danger or hazard peculiar to the work,” or the injury must have been
caused by a “risk inherent in the nature of the work.” 2 The majority opinion relies in part
on a more general statement: “An accidental injury arises out of employment when there
is apparent to the rational mind, upon consideration of all the circumstances, a causal
connection between the conditions under which the work is required to be performed and
the resulting injury.” Phillips v. A&H Const. Co., 134 S.W.3d 145, 150 (Tenn. 2004). I
conclude this is not a complete statement of the law in Tennessee for several reasons.
First, this language is contained in cases with dates of injury before the passage of the
2013 Workers’ Compensation Reform Act. Second, because the Reform Act added the
word “primarily” to the “arising out of” requirement, I conclude the Act tightened, not
loosened, the causation component. 3 Third, after the passage of the Reform Act and as
recently as 2019, the Supreme Court has emphasized the need for evidence of a “danger
or hazard peculiar to the work” or a “risk inherent in the nature of the work.” Chaney,
568 S.W.3d at 579. Thus, a mere “causal connection,” as described in Phillips, is simply
not good enough.
Finally, I note that, under pre-reform law, courts were directed to resolve any
reasonable doubt as to causation in favor of the employee. For example, in Jackson v.
Goodyear Tire & Rubber Co., No. W2007-01131-WC-R3-WC, 2008 Tenn. LEXIS 563(Tenn. Workers’ Comp. Panel Aug. 26, 2008), the Supreme Court’s Workers’
Compensation Appeals Panel affirmed a finding of compensability in a case where the
2
As noted above, I acknowledge that other doctrines and tests have been developed over the years to
address specific factual scenarios, but I cannot conclude that the facts of this case fit any of those
exceptions to the general rule.
3
For injuries occurring on or after July 1, 2014, the employee has the burden of proving that the
employment “contributed more than fifty percent (50%) in causing the injury, considering all causes.”
Tenn. Code Ann. § 50-6-102(14)(B) (2020).
3
employee alleged an aggravation of his pre-existing back condition after standing from a
chair during his lunch break. Id. at *2. In affirming the award, the Appeals Panel noted
that “[t]he situation presented here is undoubtedly at the outer limit of compensability.”
Id. at *6. The Appeals Panel reasoned that the result was supported by the “overarching
principle” that “any reasonable doubt as to whether an injury ‘arose out of the
employment’ is to be resolved in favor of the employee.” Id. at *7. That “overarching
principle” is no longer the law. As the Appeals Panel explained in Willis v. All Staff, No.
M2016-01143-SC-R3-WC, 2017 Tenn. LEXIS 455, at *11 (Tenn. Workers’ Comp. Panel
Aug. 3, 2017), “Employee’s argument . . . that all reasonable doubts concerning causation
should be construed in [the employee’s] favor is without merit.” Instead, the law now
prohibits a court from construing the law “in a manner favoring either the employee or
the employer.” Id. (quoting Tenn. Code Ann. § 50-6-116).
In the present case, it is undisputed that Employee’s injury occurred after a flying
insect startled her and she moved to avoid the insect, resulting in her fall. I cannot
conclude that the presence of a flying insect inside Employer’s facility was a “danger or
hazard peculiar to the work” or that the injury was caused by a “risk inherent in the
nature of the work.” Although I acknowledge that Employee’s testimony regarding the
presence of insects inside the facility was unrefuted, I fail to see how the presence of
insects was a hazard “peculiar to the work” of a certified nursing assistant or that the
insect presented a “risk inherent in the nature of the work.” 4 Instead, I conclude her
injury was “purely coincidental, contemporaneous, or collateral with the employment”
and thus not compensable. Under these circumstances, I would reverse the trial court’s
decision and dismiss the case. I therefore respectfully dissent.
4
In my view, the majority opinion, in effect, applies Professor Larson’s “actual risk” doctrine, which
allows compensation as long as the employee can prove that an actual hazard in the workplace caused the
injury regardless of whether that hazard was “peculiar to the work” or “inherent in the nature of the
work.” I find no precedent suggesting the Tennessee Supreme Court has adopted or applied the “actual
risk” doctrine in any comparable factual scenario.
4
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Patricia Harris ) Docket No. 2019-06-1008
)
v. ) State File No. 31940-2019
)
Nashville Center for Rehabilitation and )
Healing, et al. )
)
)
Appeal from the Court of Workers’ ) Heard January 28, 2021
Compensation Claims ) via WebEx
Joshua D. Baker, 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 15th day
of March, 2021.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Brett Rozell X brozell@rma-law.com
Clay Rozell crozell@rma-law.com
Richard R. Clark, Jr. X rclark@eraclides.com
Lauren Ray Hall lrayhall@eraclides.com
Joshua D. Baker, 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