TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

WORKERS’ COMPENSATION APPEALS BOARD 

Glenda Edwards ) Docket No. 2017-06-0526 

 )

v. ) State File No. 6719-2017 

 ) 

Fred’s Pharmacy, et al. ) 

 )

 ) 

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Joshua Davis Baker, Judge ) 

Affirmed and Remanded - Filed February 14, 2018 

This interlocutory appeal involves an employee, working as an assistant manager of a 

pharmacy, who alleged physical and psychological injuries resulting from an altercation 

with a shoplifter. The employee claimed the altercation aggravated her pre-existing 

psychiatric condition and resulted in injuries to her back, neck, arms, and ribs. The 

employer accepted the employee’s physical injuries as compensable but denied benefits 

for her alleged mental injury. Following a review of the record without an evidentiary 

hearing, the trial court concluded the employee came forward with sufficient evidence to 

establish she would likely prevail at trial in establishing a compensable mental injury. 

The trial court designated the employee’s psychiatrist as the authorized treating physician 

and awarded medical and temporary total disability benefits. The employer has appealed. 

We affirm the decision of the trial court and remand the case. 

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in 

which Judge David F. Hensley and Judge Timothy W. Conner joined. 

James Tucker, Nashville, Tennessee, for the employer-appellant, Fred’s Pharmacy 

Andrea Meloff, Nashville, Tennessee, for the employee-appellee, Glenda Edwards 

Factual and Procedural Background 

Glenda Edwards (“Employee”), an assistant manager employed by Fred’s 

Pharmacy (“Employer”), alleged that on January 24, 2017, she suffered physical and 

psychological injuries when confronting a shoplifter. She claimed that she was the only 

manager on duty when the store was “robbed” at night. According to Employee, she 
2 

confronted the thief as he tried to exit the store, and he “slammed her into the wall,” 

hurting her back, neck, arms, and ribs. Video surveillance footage, which does not 

include audio, appears to show the shoplifter pushing Employee out of the way as he 

exited the store. Employee claimed that, in addition to her physical injuries, she was 

diagnosed with Post-Traumatic Stress Disorder. 

On the day following the altercation, Employee attended an appointment with her 

psychiatrist, Dr. Oleksandr Osipchuk, from whom she had been receiving treatment for 

depression, anxiety, and panic attacks prior to the January 24 incident. Dr. Osipchuk’s 

January 25, 2017 note reflects Employee complained of increasing symptoms after being 

“assaulted by [a] man at [work] who tried to [steal] goods from [the store].” Employee 

continued to follow-up with Dr. Osipchuk, who took her off work as a result of the 

January 24 incident. 

In response to a letter from Employee’s attorney, Dr. Osipchuk opined that 

Employee suffered an aggravation of her pre-existing psychiatric condition and that the 

aggravation arose primarily out of the January 24, 2017 incident at work. He further 

indicated Employee’s psychiatric symptoms had not returned to her pre-injury baseline. 

Employer accepted Employee’s physical injuries as compensable but denied her claim for 

the alleged exacerbation of her pre-existing mental condition. 

Without holding a hearing, the trial court found the shoplifter “assaulted 

[Employee] and caused her physical injury when she tried to detain him.” The court 

concluded that this was an “unusual occurrence in contrast to [Employee’s] daily work” 

and, “coupled with her preexisting mental condition,” the incident was capable of 

producing a compensable mental injury. The court appointed Dr. Osipchuk as the 

authorized treating psychiatrist and ordered Employer to pay temporary total disability 

benefits, though the court did not calculate the amount of the award at that time.1

 

Employer has appealed, asserting the trial court erred in finding Employee was 

likely to prevail at trial in establishing a compensable mental injury. 

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) (2017). 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 

 

1

 After a wage statement was filed, the trial court issued a separate order setting out the amount owed. 

That order has not been appealed. 
3 

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. 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). 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 (2017). 

Analysis 

A. 

Initially, we note that both parties cite Tennessee Code Annotated section § 50-6-

217(a)(3) (2016) (repealed 2017) in support of their respective positions. Section 50-6-

217(a)(3) authorized us to reverse or modify a trial court’s decision if the rights of a party 

were prejudiced because the findings of the trial judge were “not supported by evidence 

that is both substantial and material in light of the entire record.” However, as we have 

previously observed, this code section was repealed effective May 9, 2017. See Baker v. 

Electrolux, No. 2017-06-0070, 2017 TN Wrk. Comp. App. Bd. LEXIS 65, at *5-6 (Tenn. 

Workers’ Comp. App. Bd. Oct. 20, 2017); Butler v. AAA Cooper Transportation, No. 

2016-07-0459, 2017 TN Wrk. Comp. App. Bd. LEXIS 54, at *5-6 (Tenn. Workers’ 

Comp. App. Bd. Sept. 12, 2017); Glasgow v. 31-W Insulation Co., Inc., No. 2017-05-

0225, 2017 TN Wrk. Comp. App. Bd. LEXIS 51, at *11-12 (Tenn. Workers’ Comp. App. 

Bd. Sept. 6, 2017). Consequently, as noted above, the standard we apply in reviewing the 

trial court’s decision presumes that the trial judge’s factual findings are correct unless the 

preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-239(c)(7). 

B. 

Regarding the merits of this appeal, Employer maintains that the trial court erred 

in finding Employee was likely to prevail at trial in establishing a compensable 

aggravation of her pre-existing mental condition. Employer asserts that Employee’s 

altercation with the shoplifter did not give rise to a “sudden or unusual stimulus” as 

required by Tennessee Code Annotated section 50-6-102(17) (2017). According to 

Employer, managers in a retail setting commonly encounter shoplifters and, while 

unpleasant, such encounters are a normal part of a manager’s duties. 

Employee responds that Employer provided no evidence that being assaulted by a 

person committing a crime, resulting in psychological and physical injuries, is a “normal 
4 

job duty of an assistant manager.” According to Employee, “[i]n her years of 

employment with Fred’s she did not have any encounter similar to this event.” 

 

A “mental injury” is defined as “a loss of mental faculties or a mental or 

behavioral disorder.” Tenn. Code Ann. § 50-6-102(17). To qualify as compensable, a 

mental injury must arise “primarily out of a compensable physical injury or an 

identifiable work-related event resulting in a sudden or unusual mental stimulus.” Id. 

Cases focusing on the latter category make clear that (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. Ireton v. 

Horizon Mental Health Mgmt., LLC, No. E2015-00296-SC-R3-WC, 2016 Tenn. LEXIS 

3, at *28 (Tenn. Workers’ Comp. Panel Jan. 19, 2016).2 

However, not all mental injuries are compensable. For example, a “psychological 

or psychiatric response due to the loss of employment or employment opportunities” is 

not compensable. Tenn. Code Ann. § 50-6-102(17). Similarly, the aggravation of a preexisting mental condition is not compensable “unless it can be shown to a reasonable 

degree of medical certainty that the aggravation arose primarily out of and in the course 

and scope of employment.” Tenn. Code Ann. § 50-6-102(14)(A). At the same time, 

however, “[a]n employer takes an employee with all preexisting conditions and cannot 

escape liability when the employee, upon suffering a work-related injury, incurs a 

disability far greater than if she had not had a preexisting condition.” Kellerman v. Food 

Lion, Inc., 929 S.W.2d 333, 335 (Tenn. 1996); see also Mace v. Express Services, No. 

2015-06-0059, 2015 TN Wrk. Comp. App. Bd. LEXIS 19, at *9 (Tenn. Workers’ Comp. 

App. Bd. June 19, 2015); Bradshaw v. Jewell Mechanical, LLC, No. 2014-06-0056, 2015 

TN Wrk. Comp. App. Bd. LEXIS 16, at *15 (Tenn. Workers’ Comp. App. Bd. June 4, 

2015). 

Here, the trial court considered the evidence and found Employee was likely to 

prevail at trial in establishing an aggravation of her pre-existing mental condition. We 

find nothing in the record establishing the trial court erred in reaching this conclusion. 

The only medical opinion in the record is from Employee’s psychiatrist, Dr. Osipchuk, 

who opined, within a reasonable degree of medical certainty, that she suffered an 

aggravation of her pre-existing psychiatric condition, and that this aggravation arose 

primarily out of the January 24, 2017 incident at work. Employer has presented no 

medical proof to contradict Dr. Osipchuk’s opinion. 

 

2 See also Saylor v. Lakeway Trucking, Inc., 181 S.W.3d 314, 320 (Tenn. 2005) (“[T]he stress must be 

extraordinary and unusual in comparison to the stress ordinarily experienced by an employee in the same 

type [of] duty.”); Goodloe v. State, 36 S.W.3d 62, 66 (Tenn. 2001) (“the stress produced may not be usual 

stress . . . in comparison to the stress ordinarily experienced by an employee in the same type [of] duty”); 

Houser v. Bi-Lo, 36 S.W.3d 68, 72 (Tenn. 2001) (“The injury must have resulted from an incident 

involving mental stress of an unusual or abnormal nature, rather than the day-to-day mental stresses and 

tensions to which workers in that field are occasionally subjected.”). 
5 

Employer also contends that the altercation between Employee and the shoplifter 

was a “minor interaction” that did not result in a sudden or unusual stimulus capable of 

producing a compensable mental injury and that a manager’s duties include confronting 

shoplifters. Employer’s argument ignores Dr. Osipchuk’s uncontradicted opinion that 

Employee suffered an aggravation of her pre-existing condition caused by the altercation. 

Moreover, the record is silent as to whether an assistant manager’s duties typically 

involve confronting persons committing criminal acts. Nor did Employer present any 

evidence concerning Employee’s duties or how often, if at all, she has had to confront 

shoplifters as a normal part of her responsibilities. 

The trial court found that Employee had been “assaulted,” that she was physically 

injured, that this was an “unusual occurrence in contrast to [Employee’s] daily work,” 

and that, “coupled with her preexisting mental condition,” the incident was capable of 

producing a compensable mental injury. We are unable to conclude that the evidence 

preponderates otherwise at this stage of the case. 

C. 

 Before concluding, we note that the parties filed a “Joint Statement of the 

Evidence,” which the trial judge approved in a separate order. However, as explained 

below, it is unclear how this document could operate as a statement of the evidence. 

 The appealing party has the burden of ensuring that an adequate record is prepared 

on appeal. Tenn. Comp. R. & Regs. 0800-02-22-.02(01), -.03(1) (2018); see also 

Appeals Bd. Prac. & Proc. §§ 3.4 and 3.5. Although there is no requirement that a 

transcript or statement of the evidence be filed to properly perfect an appeal, a party who 

elects not to submit either a transcript or a statement of the evidence does so at his or her 

peril. Gilbert v. United Parcel Serv., No. 2016-06-0832, 2016 TN Wrk. Comp. App. Bd. 

LEXIS 38, at *13 (Tenn. Workers’ Comp. App. Bd. Aug. 24, 2016). The reason, simply 

put, is that if the appellate court is not provided with a transcript or a statement of the 

evidence, the “appellate court cannot know what evidence was presented to the trial 

court, and there is no means by which [it] can evaluate the appellant’s assertion that the 

evidence did not support the trial court’s decision.” Britt v. Chambers, No. W2006-

00061-COA-R3-CV, 2007 Tenn. App. LEXIS 38, at *8 (Tenn. Ct. App. Jan. 25, 2007). 

The document filed by the parties in this case, while titled a statement of the 

evidence, was not a summary or recitation of testimony heard by the trial judge. Instead, 

it was a discussion of the procedural history of the case, the arguments of the parties, the 

issue presented on appeal, and a recitation of the trial court’s expedited hearing order. 

Moreover, as noted above, no testimony was presented to the trial judge. Accordingly, 

there was no testimony to recite or summarize in a statement of the evidence in lieu of a 

transcript. Thus, the document filed by the parties and approved by the trial judge was 

unnecessary, as its contents were readily available from the record. 
6 

Conclusion 

For the foregoing reasons, we hold that the evidence does not preponderate against 

the trial court’s decision. Accordingly, the trial court’s decision is affirmed and the case 

is remanded. 
 TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

 WORKERS’ COMPENSATION APPEALS BOARD 

) Docket No. 2017-06-0526

) 

) State File No. 6719-2017 

) 

Glenda Edwards

v.

Fred’s Pharmacy, et al. )

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 14th day of February, 2018. 

Name Certified 

Mail 

First Class 

Mail 

Via 

Fax 

Fax 

Number 

Via 

Email 

Email Address 

Andrea Meloff X ameloff@ddzlaw.com 

James Tucker X jtucker@manierherod.com 

Joshua Davis 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

Jeanette Baird

Deputy Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B 

Nashville, TN 37243 

Telephone: 615-253-0064 

Electronic Mail: WCAppeals.Clerk@tn.gov