1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSAT I ON APPEALS BOARD

Patricia Harris ) D ocket No. 2019

- 06

- 1008 )

v. ) S tate File N o. 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. Re lying 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 c ourt 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 t he employee has appealed the denial of

the request for attorney ’ s fees on the unpaid medical expenses

. W e affirm the trial court’s

determination regarding compensability

, reverse the trial court’s de nial 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 

### FILED Mar 15, 2021 12:07 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD2 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 Sieg e l, an orthopedic surgeon, who placed Employee in a splint and returned her to work with

restrictions.

Employer filed a Notice of D enial 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. Sieg e l under her private insurance and, during her May 17 visit, decided to undergo surgical repair of her wrist. During this visit, Dr. Sieg e l restricted Employee from working until after surgery. On May 21, Dr. Sieg e l performed an open reduction and internal fixation of Employee’s fracture.

After filing a petition for benefit s , Employee continued t o 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 contribut ed 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 f ees 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, a t 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:3 [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 ha d 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.

T he 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, explain ing

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, an d 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 awa rded 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 pro vide 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 corr ect unless the preponderance of the evidence is otherwise. See Tenn. Code Ann. § 50

- 6

- 239 (c) (7) (20 20 ). 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.4 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 afforde d 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 di scretion” standard of review. Grisso m 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. Chatta nooga

- 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 (20 20).

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 I njury Ar o se 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 cons tituted

a hazard incident to the employ ment . 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 requirement s 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 2 25 (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, a t 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.5 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 in jury.” 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 determi nation 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 consider ed various

“ r isk doctrines ” when faced with issues concerning whether a workplace injury arises out of the employment. Professor Larson categorize d 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

P rofessor 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 conclude s that “[t]he increased

- risk test is still the prevalent test in the United States today.” Id. at §

3.03. Further, he conclude s 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] c laimant 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 tract or

- 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).6 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

a ssaults , 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 employmen t

, ” which the Court determined to be analogous to two of the cases addressed by the Court. Id. at 603. Th e 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 e mployees 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 the ir 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 rem edy 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 deter mine 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 c learly 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 m ethod 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 w ill 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.7 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 Co urt 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 , 2 59 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,

con temporaneous, 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, 201 7 ).

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 st atutory 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 wh ich 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). Furth er, 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 an d 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 t he 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 (Te nn. 2019) , cited by our colleague, likewise recognizes that “[t]o establish that an injury arose out of employment, an8 Here, Employer asserts the proof was not sufficient to establish that insects were part of Em ployee’s work environment or presented a hazard of the employment. The trial court concluded that roaches in Employer’s facility “ were part of the work ing

environment ” and consequently, “ a hazard of [ her ] employment. ” We must de cide whether

the preponder ance of the evidence supports th e se factual determinations. The only evidence in the record regarding the presence of roaches in the facility comes from Employee’s testimony. T he 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 tha t 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 describe d with particularity what caused her to fall, testifying she was performing rounds and reacted to the insect that suddenly fl ew 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 insect s in side its facility, and Employee’s testimon y 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 s ufficient f or 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 ( c iting 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 pr oblems 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.9 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

matt er 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. 2 d 100, 102 (Tenn. 199 3). 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 conside red 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). T h us , an award of attorney’s fee s 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

E mployee “out of pocket.” Accordingly, we remand the case for the trial court to address

the attorn ey’s fees consistent with this o pinion

. Costs on appeal are taxed to Employer.1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSAT I ON APPEALS BOARD

P atricia H arris ) D ocket No

. 2 0 1 9

- 0 6

- 1 00 8 )

v. ) S tate File N o

. 31940

- 201 9 )

N ashville Center for Rehabilitation and ) Healing, et al. ) ) ) Appeal from the Court of Work ers’ ) Compensation Claims )

Joshua D. Baker

, Judge )

Dissent

Conner, J., dissenting.

This case requires us to consider the meaning of the statutory phrase “ aris ing primarily out of an d in the course and scope of employment ” as that phrase is used i n Tennessee Code Annotate d section 50

- 6

- 102(14) (2020)

. Because I conclude the majority opinion gives this phrase too expansive a me a n ing under the factual scenario presented here , I respectfully dissen t.

Court s in this state , as well as courts in other jurisdict i o n s , have struggled historically with defining stat utory p rovisions addressing the work

- relatedness of an injury. According to the oft

- cited Professor Larson

, “ [f]ew groups of statutory wo rds in the history of law have had to bear the weight of s uch a mountain of interpretation as has

be e n heaped upon this slender foundation

. ” Anderson v. Westfield Grp. , 259 S W.3d 690, 695 (Tenn. 2008) (quoting 1 Lex K. Larson, Larson ’ s Workers ’ Com pensat ion § 3.01 (Matthew Bender, Rev. Ed. ) )

. In attempting to explain this phenomenon, Profe s sor
Larson described risk doctrines adopted by various jurisdictions as evolving from the

“ peculiar

- risk doctrine ” t o the “ increased

- risk doctrine

, ” then the “ actual

- risk doctrine, ” and finally t h e “ position al

- risk doctrine

. ” Larson at § § 3.0 2

– 3. 05

. 1 Each st e p o n t his

continuum broadens the meaning of the phrase “ ar i sing out of employme nt

, ” making it easier for an injured worker to establish the work

- relatedness of his or her injury.

D etermin in g w h ich risk do ctrine or legal test applies in any given factual scenario has presented a daunting challenge

.

1 Larson suggests that a fifth approach, the “proxima t e cause” test, is “virtually obsolete.” Id. at § 3.01.2 The Tennessee S upreme Court has, at times, acknowle dged and commented on

Professor Larson ’ s categorization of risk doctrines. For example, in Hud s on v. Thurston

Motor Lin e s, I nc. , 583 S.W.2d 597 (Tenn. 1979), t he Court reviewed the risk doct rines

and examined a number of p rior cases i t described as having reached “ diverse results

. ”

I

d

. at 600. It note d several cases where the court focused on whe ther the injury was caused by a “ foreseeable ” event or “ peculiar” hazard incident to the e mployment. Id. at

600

- 601. I n adopting the “ street risk doctrine, ” for example, the Hudson Court concluded that the injury suffered by the employ ee due to a rando m a ssault was a “ foreseeable

ha z ard incident to the employment of a tr uck driver o f a motor f reight line. ” Id. at 602.

After Hudson

, Tennessee c ourts recognized various other doctrines to be applied in specific factual sce narios

. See, e.g.

, Carter v. Volu nteer Apparel, Inc. , 833 S.W. 2 d 492

, 495 (Tenn. 1992) ( recognizing the “ personal com f o rt doctri ne ” to allow compensat i on for inju r ies occurring while an employee is en gaged in reasonably foreseeable “ per sonal

comf o rt ” activit ies at work); Anderson v. Westf ield Grp

. , 259 S.W.3d 690 , 69 6 (Tenn. 2008) ( reaffirming the “ direct and natural con sequences ” rule in circumstances where an injury subsequent to the work accident was deemed to “ flow from ” the original injury )

.

In Wait v. Tr avelers Ind. Co. of Ill.

, 2 40 S.W.3d 220 (Tenn. 2007) , t h e Su preme Court addressed whether the “ street risk ” do ctrine

, adopted b y the Court in Hudson

, applie d in a situation where the injured worke r was randomly assaulted while working in

her home. After reviewing the law governing assault cases, the Court not e d that “ for an injury to ‘ arise out of ’ employment, it must emanate fr om a peculiar danger o r risk

inherent to the na ture of the employment

. ” Id. at 228 (emphasis added)

. In concluding the employee ’ s c laim did not fa ll u n der the s treet risk doctrine, th e Court re ason ed that

“ [t]here is nothing in the record to fairly sugge st 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 ad ded)

. T h us , it was not enoug h that the employee ’ s job p laced her

in the position to be injured ; the Court stressed there must be evidence supporting a

conclusion that the hazard which caused th e injury was “ connected wi th the nature of the employment. ” I d. ( emphasis added).

As dis c ussed in the majority opinion, i n Coleman v. St. Thomas Hospital , 3 34 S.W.3d 199 (T enn. Ct. App . 2010), the Tennessee Court of A ppeals addressed a tort
claim filed against a hospita l that housed a credit union where employees had allegedly been exposed to carbon monoxide . The employees assert ed they were not limited to

w orkers ’ compensa t io n benefits as their exclusive remedy be cause their injuries did not

“ arise out of ” their employment. Id. at 201. The trial court agreed wi th the plaintiffs and

denied t he defendant ’ s motion for summary judgment

. Id. On appeal, a fter discussing

Larson ’ s “ risk doctrines ” and concluding that Tennessee ha d adopted no set formula

, t he

Court of Appeals considered the arising out of requirement a nd explained that the Supreme Court has “ often stated ” that an employee must prove the work in jury re sulted

“ from a danger or hazard peculiar to the w ork or be caused by a risk inherent in the nature of the wo rk in order to be compensable. ” Id. at 204 (em phasis added) (internal3 quota t ion omitted)

. T he court further noted that “ an injury that is pure ly coincidental,

contem po raneous, or collateral with the employment will not be considered as arising out

of the employment. ” Id

. S ee also Chaney v. Team Tec hnologies, Inc. , 568 S.W.3d 5 7 6

, 579 (Tenn. 2019) ( “ A n employee ca n not m erely ass ert that her injury occurred at work; she has to allege th at her injury resulted from a ‘ danger or hazard peculiar to the work or be caused by a risk inherent i n the nature of the work

. ’ ” ) (quoting Blanke n ship 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 b e cause of the employment is not suff icient, 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 a s 2019, and on mu ltiple occas ions since 2007, Tennessee c o u rt s , including our Supreme Cou rt, ha ve reiterated what I believe to be the general rule in

Tennessee : in order for an i n jury to arise primarily out of the employment, the employee

mu st sho w a “ danger or hazard pe cu liar to the work

, ” or the injury must hav e be en caused by a “ risk inhere nt in the nature of the work. ” 2 The majority opinion relies in part

on a more general statement : “ A n accidental injury arises out of employment when there is apparent to t he rational mind, upon c onsideration of all the circu m stances, a causa l connection between the conditions under which the work is required to be per formed and the resulting injury. ” Phillips v. A&H Const. Co ., 134 S.W.3d 145, 150 (Tenn. 2004). I

conclude t his is not a complete statement of t he law in Tenne s see for several r easons. First, this language is contained in cases with dates of injury be f ore the passage of the

2013 Workers ’ Compensa t i on Reform Act . Second, because the Reform Act added the

word “ primarily ” to the “ arising out of ” req uirement

, I c on cl u de the Act tightened, not loosened, the causation component

. 3 Third, after the passage of the Reform Act and a s recently as 2019

, the Supreme Court has emphasi z ed the need for evidence of a “ danger or hazard pe culiar to th e work ” or a “ risk inherent i n the nature of the work. ” Chaney

, 568 S.W.3d at 57 9. Thus, a mere “ causal connection

, ” as described in Ph i l lips

, is simply not good enough.

Finally, I note that , under pre

- reform law, courts were directed to reso lve any

rea s onable doubt as to causation in favor of the employee. For example

, in Jackson v. Goodyear Tire & Rubb er Co. , No. W2007

- 01131

- WC

- R3

- WC, 2008 Tenn. LEXIS 563 (Tenn. Workers ’ Comp. Panel Aug. 26, 2008), the Supreme Court ’ s W orkers ’ Compensation A ppeals Pan el affirmed a finding of comp e nsability in a case where the

2 As noted above, I acknowledge that other doctrines and tests have been developed over t he years to
add ress specific factual scenar ios, but I cannot conclude that the facts of this case fit an y of t h o se exceptions to the general rule.

3 For injuries occurring on or after J u ly 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).4 e mployee alleged a n aggravation of his p re

- exi s ting 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 situ at ion presented here is undou b tedly at the outer limit of compensability. ”

Id. at *6. T he Appeals Panel reason ed 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 o f the employee. ” Id. at *7. T hat “ overarching principle ” is no longer the law. As the A p peals Panel explained in Willis v. All Staff , No.

M2016

- 01143

- SC

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- WC, 2017 Tenn. LEXIS 455 , at *11 ( Tenn. Workers ’ Comp. Panel Aug. 3, 2017)

, “ Em ployee ’ s argumen t

. . . that all reasonable d oubt s concerning causation

should be construed in [the employee ’ s] favo r is without meri t. ” Instead, the law no w prohibits a court from construing the law “ in a ma n ner favoring either the employ ee or the employe r. ” Id. (quoting Tenn. Code Ann. § 50

- 6

- 116 ).

In the present case , i t is undisputed that Employee ’ s inj ury occurred after a flying

insect startled her and sh e moved to avoid the insect, resulting in her fall. I cannot

conclu de tha t the presence of a flying insect insid e Employer ’ s facility was a “ danger or hazard peculiar to th e work ” or that the inj ury was caused by a “ risk inherent in t he

nature of the work

. ” Although I acknowledge that Employee ’ s testimony re g arding the

p resence of insects inside the facility was un r efu ted, I fa il to see how the presence of

insects was a ha zard “ peculiar to the work ” of a certified nursing assistant or tha t the

insect presented a “ risk inherent in the nature of the work. ” 4 Instead, I conclude her

in

j ury was “ purely coincidental, con t em poraneous, or collateral with the employment ”

and th us not compens a b le

. Under these circumstances, I would reverse the trial court ’ s dec ision and dismiss the case. I therefore respectfully dissent.

4 In my view , the majority opi n ion , in effect, a pplie s Professor Larson ’ s “ actual risk ” doctrine

, which allows compensation as lo ng as the employee can prove that an actual hazard in the workplace caused the injury regardless o f whether that hazard was “ peculiar t o the work ” or “ inherent in the nature o f the

work. ” I find no precedent suggesting the Tennessee Sup reme Court has adopted or applied the “ actual

risk ” doctrine in any comparable factual scenario

.TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSAT ION 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’ ) Hear d 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 th e following recipients by the following methods of service on this the 15 th day

of March , 2021.

Name Certified

Mail First Class

Mail Via

Fax Via

Email Sent to:

Brett Rozell Clay Rozell X brozell@rma

- law.com crozell@rma

- law.com
Richard R. Clark, Jr. Lauren Ray Hall X rclark@eraclides.com 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 Workers’ Compensation Claims X penny.patterson

- shrum@tn.gov

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