# FILED May 3, 1996 Cecil Crowson, Jr . Ap pellate Cou rt Clerk IN THE SUP REME COURT OF TENN ESSEE SPECIA L WORKERS’ COMPENSA TION A PPEA LS PA NEL AT NA SHVILLE

RAY DONA LD HAWKINS, ) ) DAVIDSON C IRCUIT Plaintiff/Appellant, ) No. 93C-674 Bel ow ) ) VS. ) Hon. Hamilton V. Gayden, Jr ., ) Judge ) METROPOLITAN GOVE RNMENT OF ) No. 01-S-01- 9508-CV-00126 NASHV ILLE & D AVIDSO N COU NTY ) TENNES SEE act ing by and th rough ) the NASHVILLE ELE CTRIC POWER ) BOARD; a nd actin g by and thro ugh ) THE ELECTRIC EM PLOYEES’ ) CIVIL SERVICE & PENSION BOARD, ) ) Defendants/Ap pellees. )

For Appellants: For Appellees : Thomas E. Stewart Douglas F isher Stewart & Black Howell & Fisher Madison, Tennessee Nashvil le, Tennessee

MEMORA NDUM OPIN ION

Members of Panel: Adolpho A. Birch, Jr., Associate Justice Ben H. Ca ntrell, S pecial Ju dge Jerry L. Sm ith, Spe cial Judge

AFFIRMED Cantrel l, Specia l Judge- 2 - This workers’ compensation appeal has b een referred to the Sp ecial W orkers’ Compensation Appeal s Panel of the Supreme Court in accordance wi th Tenn. Code Ann. § 50-6-225( e)(3) for hear ing and repor ting to the Supreme Cou rt of findings of fact and conclusions of law.

T he appellant sued hi s employer for worker s’ compensation benefits coveringmental and emotional disabilit ywhich resulted from beinginformed that he wasabout to be fired. The trial judg e dismissed theaction because it did not state a claim on which rel ief cou ld be gr ant ed. We conclude that the judgment should be affirmed.
I.

The complaint alleged that the ap pellant had worke d fo r the Nashville ElectricServicefor thirty-one years , servi ng finally as Executi ve Assistant G en eral Manager. On March 11, 1992, one hour before a sc heduled meeting of the Power Board, a Board member infor med the appellant that at the meeting the Board would vote to dismiss him. Although the r umor turned out to be false, the appell ant alleged thatthe shockand fri ght pr oduced by th e unw elcomenews caus ed such mental and emotional stres s that he became per manently dis abled.

The defendant filed a motion to di smiss for failure to state a cl aim. The trial judge ini tially overrule d the motion but deci de d to gr ant it, after further proceedings

in the case.

II.- 3 - Mental injur ies a re co mpe nsab le un der t he wor kers’ comp ensa tion laws when causally

connected to a work-relat ed accident
. Wade v. Aetna Casualty and Surety Co., 735 S.W.2d 215 (Tenn. 1987); Jose v. Equifax , 556 S. W.2d 82 (Te nn . 1977). An injury

by accide nt is one w hi ch canno t be reasonably anticipated, is unexpected and is preci pitated by unu sual combinatio ns of fortuitous circumst ances. A. C. Lawrence Leathe r Co. v. Lo veday , 224 T enn. 317, 455 S.W.2d 141 (Tenn. 1970). The “accide nt” do es not have to involve physical injuries. Sexton v. Scott County , 785 S .W.2d 81 4 (Te nn. 1 990) . A s peci fic i nci dent of stress s uch as an argument w ith a co-worker, or a n angry confrontation with a s uperior amounts to an accidentat work, Cabe v. Union Carbide Cor p. , 644 S.W.2d 397 (Tenn. 1983); Block v. State , 721 S.W.2d 801 (Tenn. 1986); but the statutory defini tion of accident “ does not embrace ever

y stress or strain of daily li ving or every undesirab le experience encountered in carry ing out the dut ies of a contract of employment.” Jose v. Equifax , 556 S.W .2d 82 at 84 (Tenn. 19 77).

One of the latest cas es involv ing mental i njuries re sulting from an alleged accident at work is Tolbert v. B aptist Hospi

tal , No. 01-S-01 -9309-CH- 00141 (filed in Nashv ille June 24, 1994), in which the employee went into a severe dep ressi ve state after being cr iticiz ed by her s upervisor for poor jobperformance. A workers’ compensation appeals p anel held that the injury did not resul t from an accidentas de fin ed in the wo rkers ’ com pen sati on la w. The Supreme Court adopted the p ane l’s co nclu sion and d enie d the emp loyee ’s mo tion for r eview.

On a motion to dismi ss we take the facts alleged as true and in the light most favorable to the plaintiff. The facts al leged in thi s case are si milar to thefacts in the Tolbert

case, and we conclude that the result should be the same. This panel is of the opinion that when an employee suffe rs depre ssion as a result of being informed that he is about to be terminated, the injury does not arise out of an accident as de fin ed in the wo rkers ’ com pen sati on la w.- 4 - III.
The appellant also argues that the tria l judge erred in g ranting the motion to dismi ss after first overruli ng it. Hecombined that arg ument with th e assertion that the trial judge violated Tenn. R. Civ. Proc. 59.05 by not t ransferringthe case to another

judge before g ranting the motion. In our judgment neither arg ument has a ny valid ity.

An order by the trial judge that does not dispose of all the claims and the rightsand liabilities of all the parties is subject to rev ision at any timebefore the entry of a “final” judgment. Rule 54.02, Tenn. R. Civ. Proc.; Rule 3(a), Tenn . R. App. Proc. The trial cour

t’s order ov

errulingthe motion to dis miss was not a final order and the trial judg e acted properl y in later grantingthe motion.
As to the obligation to transfer the case to another judg e, thatobligatio n arisesonly wh en the trial ju dge has gr anted a new tr ial in a jur y case becau se the verdictis cont rary to the weig ht of the evidence -- and then onl y where a party has requested the transfer. Tenn. R. Civ. Proc. 59.06. D espite the appell ant’s assert ions to the contrary , the trial judg e’s decisi on was rend ered as a matter of law and did not invol ve a determinati on of the facts. Our rules do not pr ohibit a tri al judge from granting a motion to dismi ss after first overruli ng it.

The judgment of the tr ial court i s affirmed. Tax the costs on appeal to the appellant.

_______________________________ BEN H. CAN TRELL, SPECIAL JU DGECONCUR:

_______________________________ ADOLPHO A. BIR CH, JR., ASSOCIATE JUSTICE

_______________________________ JERRY L. SMITH, SPECIAL JUDGE