FILED

May 3, 1996

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

SPECIAL WORKERS’ COMPENSATION APPEALS PANEL

AT NASHVILLE

RAY DONALD HAWKINS, )

) DAVIDSON CIRCUIT

Plaintiff/Appellant, ) No. 93C-674 Below

)

)

VS. ) Hon. Hamilton V. Gayden, Jr.,

) Judge

)

METROPOLITAN GOVERNMENT OF ) No. 01-S-01-9508-CV-00126

NASHVILLE & DAVIDSON COUNTY )

TENNESSEE acting by and through )

the NASHVILLE ELECTRIC POWER )

BOARD; and acting by and through )

THE ELECTRIC EMPLOYEES’ )

CIVIL SERVICE & PENSION BOARD, )

)

Defendants/Appellees. )

For Appellants: For Appellees:

Thomas E. Stewart Douglas Fisher

Stewart & Black Howell & Fisher

Madison, Tennessee Nashville, Tennessee

MEMORANDUM OPINION

Members of Panel:

Adolpho A. Birch, Jr., Associate Justice

Ben H. Cantrell, Special Judge

Jerry L. Smith, Special Judge

AFFIRMED Cantrell, Special Judge
- 2 -

This workers’ compensation appeal has been referred to the Special

Workers’ Compensation Appeals Panel of the Supreme Court in accordance with

Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of

findings of fact and conclusions of law. 

The appellant sued his employer for workers’ compensation benefits

covering mental and emotional disability which resulted from being informed that he

was about to be fired. The trial judge dismissed the action because it did not state a

claim on which relief could be granted. We conclude that the judgment should be

affirmed.

I.

The complaint alleged that the appellant had worked for the Nashville

Electric Service for thirty-one years, serving finally as Executive Assistant General

Manager. On March 11, 1992, one hour before a scheduled meeting of the Power

Board, a Board member informed the appellant that at the meeting the Board would

vote to dismiss him. Although the rumor turned out to be false, the appellant alleged

that the shock and fright produced by the unwelcome news caused such mental and

emotional stress that he became permanently disabled.

The defendant filed a motion to dismiss for failure to state a claim. The

trial judge initially overruled the motion but decided to grant it, after further

proceedings in the case.

II.
- 3 -

Mental injuries are compensable under the workers’ compensation laws

when causally connected to a work-related accident. Wade v. Aetna Casualty and

Surety Co., 735 S.W.2d 215 (Tenn. 1987); Jose v. Equifax, 556 S.W.2d 82 (Tenn.

1977). An injury by accident is one which cannot be reasonably anticipated, is

unexpected and is precipitated by unusual combinations of fortuitous circumstances.

A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141 (Tenn.

1970). The “accident” does not have to involve physical injuries. Sexton v. Scott

County, 785 S.W.2d 814 (Tenn. 1990). A specific incident of stress such as an

argument with a co-worker, or an angry confrontation with a superior amounts to an

accident at work, Cabe v. Union Carbide Corp., 644 S.W.2d 397 (Tenn. 1983); Block

v. State, 721 S.W.2d 801 (Tenn. 1986); but the statutory definition of accident “does

not embrace every stress or strain of daily living or every undesirable experience

encountered in carrying out the duties of a contract of employment.” Jose v. Equifax,

556 S.W.2d 82 at 84 (Tenn. 1977).

One of the latest cases involving mental injuries resulting from an

alleged accident at work is Tolbert v. Baptist Hospital, No. 01-S-01-9309-CH-00141

(filed in Nashville June 24, 1994), in which the employee went into a severe

depressive state after being criticized by her supervisor for poor job performance. A

workers’ compensation appeals panel held that the injury did not result from an

accident as defined in the workers’ compensation law. The Supreme Court adopted

the panel’s conclusion and denied the employee’s motion for review.

On a motion to dismiss we take the facts alleged as true and in the light

most favorable to the plaintiff. The facts alleged in this case are similar to the facts

in the Tolbert case, and we conclude that the result should be the same. This panel

is of the opinion that when an employee suffers depression as a result of being

informed that he is about to be terminated, the injury does not arise out of an accident

as defined in the workers’ compensation law.
- 4 -

III.

The appellant also argues that the trial judge erred in granting the

motion to dismiss after first overruling it. He combined that argument with the

assertion that the trial judge violated Tenn. R. Civ. Proc. 59.05 by not transferring the

case to another judge before granting the motion. In our judgment neither argument

has any validity.

An order by the trial judge that does not dispose of all the claims and the

rights and liabilities of all the parties is subject to revision at any time before the entry

of a “final” judgment. Rule 54.02, Tenn. R. Civ. Proc.; Rule 3(a), Tenn. R. App. Proc.

The trial court’s order overruling the motion to dismiss was not a final order and the

trial judge acted properly in later granting the motion.

As to the obligation to transfer the case to another judge, that obligation

arises only when the trial judge has granted a new trial in a jury case because the

verdict is contrary to the weight of the evidence -- and then only where a party has

requested the transfer. Tenn. R. Civ. Proc. 59.06. Despite the appellant’s assertions

to the contrary, the trial judge’s decision was rendered as a matter of law and did not

involve a determination of the facts. Our rules do not prohibit a trial judge from

granting a motion to dismiss after first overruling it.

The judgment of the trial court is affirmed. Tax the costs on appeal to

the appellant.

_______________________________

BEN H. CANTRELL, SPECIAL JUDGE
CONCUR:

_______________________________

ADOLPHO A. BIRCH, JR., 

ASSOCIATE JUSTICE

_______________________________

JERRY L. SMITH, SPECIAL JUDGE