Pettus, Toyya Nettles v. Ace Cash Express

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
Toyya Nettles Pettus, ) Docket No. 2017-08-0563
Employee, )
v. )
Ace Cash Express, ) State File No. 36533-2017
Employer, )
And )
North River Ins. Co., ) Judge Deana Seymour
Carrier. )
EXPEDITED HEARING ORDER
Toyya Nettles Pettus filed a Request for Expedited Hearing seeking medical and
temporary disability benefits for an alleged work-related mental injury. This Court held a
hearing on February 21, 2018. The primary issue before the Court is whether Ms. Pettus
sustained a compensable mental injury, thus entitling her to the requested benefits.
Because Ms. Pettus did not prove a likelihood of succeeding on the merits of this claim,
the Court denies her request.
History of Claim
Ms. Pettus worked for Ace Cash Express as a district manager of thirteen stores in
Memphis. Ace provided payday and title loans to the public, and the stores kept
substantial amounts of cash on hand. Each store had a safe to secure the money their
employees handled daily and a bulletproof mantrap to separate its employees from
customers. All employees learned protocols to prevent robberies and other criminal activity.
Each had a wireless emergency panic button, and Ace installed additional panic buttons
throughout the stores.
As district manager, Ms. Pettus visited each store to count the cash and ensure
employees followed proper procedures. She met with two other district managers in
Memphis and was aware of robbery attempts in their areas. Ms. Pettus also worked as an
Ace store manager in Nashville in 2000, when robbers tied and held her at gunpoint. Her
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supervisor, Chris Hughes, confirmed the risk of this type of criminal activity in the cash
loan business.
A robbery occurred at one of Ms. Pettus' stores on December 24, 2016. An
employee called Ms. Pettus to notify her of the robbery, which Ms. Pettus heard in
progress by phone. Ms. Pettus drove to the store and found the police present and the
robbers gone. No one was physically injured.
Over the next three months, other stores in Ms. Pettus' district experienced
attempted robberies. In January 2017, an attempted robbery occurred at the Austin Peay
store. Two men held a gun to her employee's husband's head and threatened the
employee to open the door. In February, an attempted robber ran his vehicle into another
Ace store and tried to get the employee to open the door. In March, an attempted robber
ran his truck into Ace’s Jackson Avenue store. Finally, on March 21, a man came into
another Ace store with a note that read, "Bang, Bang, Hoe." Ms. Pettus was not present at
any Ace stores when the incidents occurred but talked her disturbed employees through
each situation by phone. No one was injured during these incidents, and the scenes were
controlled when she arrived.
Ms. Pettus claimed these events caused her a mental injury due to guilt, anxiety
and fear for her employees. She reported her alleged injury to Ace, which initially provided
her with counseling. However, it later denied her claim as a non-work-related cumulative
stress injury.
Fallowing the denial, Ms. Pettus sought treatment from her primary care physician at
Methodist Healthcare, who diagnosed her with Post Traumatic Stress Disorder
(PTSD), referred her to a psychiatrist, and placed her on medical leave. Afterward, she
began treating with psychiatrist Jim Pang, who diagnosed her with PTSD and major
depressive disorder. Dr. Pang provided medication management and referred her for
psychotherapy. He also kept Ms. Pettus off work. Ms. Pettus continues to receive therapy
from licensed professional counselor Kim McCaskill and periodically follows up with Dr.
Pang for medication management.
Ms. Pettus filed a Petition for Benefit Determination on May 22, 2017, seeking a
ruling on the compensability of her claim.
Findings of Fact and Conclusions of Law
At an expedited hearing, Ms. Pettus must come forward with sufficient evidence
from which the Court can determine she is likely to prevail at a hearing on the merits.
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*7-8, 9 (Mar. 27, 2015). This lesser evidentiary standard does not relieve Ms. Pettus of
the burden to produce evidence of an injury by accident that arose primarily out of and in
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the course and scope of employment, but "allows some relief to be granted if that
evidence does not rise to the level of a "preponderance of the evidence."' Buchanan v.
Carlex Glass Co., 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Sept. 29, 2015).
Trial courts apply an objective standard, rather than a subjective standard, to the
determination of whether the stress that an employee asserts caused his mental injuries
was unusual. The test for a compensable injury alleged to have resulted from a purely
mental or emotional stimulus is two parts: "(1) the injury must stem from an identifiable
stressful, work-related event producing a sudden mental stimulus, and (2) the event must be
unusual compared to the ordinary stress of the worker's job." Edwards v. Fred's Pharmacy,
2018 Tenn. Wrk. Comp. App. Bd. LEXIS 9, at *7 (Feb. 14, 2018).
The parties agreed Ms. Pettus encountered identifiable stress from criminal
activity at the stores she managed. Therefore, the Court must determine whether Ms. Pettus'
stress was unusual in comparison to the ordinary stress of her job. All employees had access
to a Safety and Security Manual and were trained on protocol to prevent robberies and other
criminal activity. Here, Ms. Pettus knew the risk of robbery and criminal activity
associated with a public cash loan business. She experienced the emotion involved when
she was a victim in 2000. During the incidents Ms. Pettus claims caused her PTSD, she was
never in harm's way. She never confronted a robber nor had physical contact with any
individual. She performed her job as set out in the protocol she trained new employees to
follow. Ms. Pettus worried about her employees but never feared for her own safety.
Her connection with each incident involved communication with her employee by
telephone and investigation of the location once the robber fled and the police secured the
scene. The workers' compensation system "does not embrace ... every undesirable
experienced encounter in carrying out the duties of a contract of employment." Jose v.
Equifax, Inc., 556 S.W.2d 82, 84 (Tenn. 1977).
The Court holds Ms. Pettus did not encounter unusual stress beyond the ordinary
stress of her job. Therefore, she did not come forward with sufficient evidence from
which this Court can conclude she is likely to prevail at a hearing on the merits.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Pettus' claim against Ace Cash Express and its workers' compensation carrier
for medical and temporary disability benefits is denied at this time.
2. This matter is set for a Scheduling Hearing on April 2, 2018, at 9:30 a.m.
Central Standard Time. The parties must call (toll-free) 866-943-0014 to participate
in the Hearing. Failure to call in may result in a determination of the issues without the
parties' participation.
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ENTERED this the 14th day of March, 2018.
_____________________________________
JUDGE DEANA SEYMOUR
Court of Workers’ Compensation
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APPENDIX
Exhibits:
1. Affidavit of Toyya Nettles-Pettus
2. Affidavit of Ignacio Cantu
3. Form C-20 Employer's First Report of Work Injury or Illness
4. Form C-23 Notice ofDenial of Claim for Compensation
5. Form C-41 Wage statement
6. Ace Safety & Security Manual
7. Toyya Nettles-Pettus' Deposition Transcript
8. Medical records (Collective)
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Motion to Dismiss
4. Request for Expedited Hearing
5. Notice of Appearance
6. Employee Toyya Nettles Pettus' Response to Employers Motion to Dismiss
7. Order on Status Hearing
8. Order on Status Hearing
9. Agreed Order Continuing Expedited Hearing
10. Motion to Quash January 12, 2018 Expedited Hearing and Motion to Compel
Discovery
11. Employee Toyya Nettles Pettus' Response to Employers Motion to Quash January
12, 2018 Expedited Hearing and Motion to Compel Discovery
12. Employee Toyya Nettles Pettus' Motion to Compel Discovery
13. Order on Motion to Quash Expedited Hearing, to Compel Written Discovery and
Deposition of Ms. Nettles-Pettus, and to Compel Written Discovery from Ace
Cash Express
14. Employee Toyya Nettles-Pettus' Pre-Hearing Memorandum
15. Employer's Expedited Hearing Brief
16. Employee's Motion to Compel and Shorten Discovery Time
17. Order on Motion to Compel
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent to these recipients by
the following methods of service on March 14, 2018.
Name Certified Fax Regular Email Sent to
Mail mail
Darrell J. O'Neal, X domemphislaw@darrelloneal.com
Employee's Attorney laura@darrelloneal.com
D. Andrew Saulters, X dsaulters@ortalekelley.com
Employer's Attorney
_________________________________
Penny Patterson-Shrum, Clerk
Court of Workers’ Compensation
ClaimsWC.CourtClerk@tn.gov
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