TENNESSEE BUREAU OF WOR KERS’ COMPENSATION

WORKERS’ COMPENSAT ION APPEALS BOARD

Glenda Edwards ) Dock et 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 a ssistant manager of a pharmacy, who alleged physical a nd psychological injuries resulting from an altercation with a shoplifter. The employee claimed the altercation aggrav ated her pre-existing psychiatric condition and resulte d in injuries to her back, nec k, arms, and ribs. The employer accepted the employee’s physical injuries as compensab le but denied benefits for her alleged mental injury. Following a review of the recor d without an evidentiary hearing, the trial court concluded the employee came forward wi th sufficient evidence to establish she would likely prevail at trial in establishing a c ompensable mental injury. The trial court designated the employee’s psychiatrist as the authorized treating physician and awarded medical and temporar y total disability benefits. T he employer has appealed.

We affirm the decision of the tri al court and remand the case.

Presiding Judge Marshall L. Dav idson, III, delivered the opinio n of the Appeals Board in which Judge David F. H ensley and Judge Timothy W. Conner joined

.

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

Andrea Meloff, Nashville, Tennesse e, for the employee-appellee, Glenda Edwards

Factual and Procedural Background

Glenda Edwards (“Employee”), an assistant manager employed by F red’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. Accordin g to Employee, she2 confronted the thief as he tried to exit the store, and he “sla mmed her into the wall,” hurting her back, neck, arms, an d ribs. Video surveillance foo tage, which does not include audio, appears to show t he shoplifter pushing Employee out of the way as he exited the store. Employee claimed that, in addition to her ph ysical injuries, she was diagnosed with Post-Trauma tic Stress Disorder.

On the day following the altercat ion, Employee attended an appo intment with her psychiatrist, Dr. Oleksandr Osipc huk, from whom she had been re ceiving treatment for depression, anxiety, and panic attacks prior to the January 24 incident. Dr. Osipchuk’s January 25, 2017 note reflects Em ployee complained of increasin g 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 Empl oyee’s attorney, Dr. Osipchuk opined that Employee suffered an aggravation of her pre-existing psychiatri c condition and that the aggravation arose primarily out of the January 24, 2017 inciden t at work. He further indicated Employee’s psychiatric symptoms had not returned to h er pre-injury baseline. Employer accepted Employee’s phys ical injuries as compensable b ut denied her claim for the alleged exacerbation of her p re-existing mental condition.

Without holding a hearing, the trial court found the shoplifter “assaulted [Employee] and caused her physical injury when she tried to det ain him.” The court

concluded that this was an “unus ual occurrence in contrast to [ Employee’s] daily work” and, “coupled with her preexistin g mental condition,” the incid ent was capable of producing a compensable mental injury. The court appointed Dr. Osipchuk as the authorized treating psychiatrist and ordered Employer to pay te mporary 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 findi ng Employee was likely to prevail at trial in esta blishing a compensable mental injury.

Standard of Review

The standard we apply in reviewing a trial court’s decision pre sumes that the court’s factual findings are correct unless the preponderance o f 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-cour t testimony, we give

considerable deference to factual findings made by the trial co urt. 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 sep arate order setting out the amount owed. That order has not been appealed.3 deference need be afforded the trial court’s findings based upo n documentary evidence.” Goodman v. Schwarz Paper Co. , No. W2016-02594-SC-R3-WC , 2018 Tenn. LEXIS 8, at *6 (Tenn. Workers’ Comp. Panel Ja n. 18, 2018). Similarly, the interpretation and application of statutes and regu lations are questions of law th at are reviewed de novo with no presumption of correctness a fforded the trial court’s conclu sions. 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’ compens ation statutes “fairly, impartially, and in accordance wi th basic principles of statuto ry construction” and in a way that does not favor either the employee or the employer. T enn. Code Ann. § 50-6- 116 (2017).

Analysis

A.

Initially, we note that both par ties cite Tennessee Code Annota ted section § 50-6- 217(a)(3) (2016) (repealed 2017) i n support of their respective positions. Section 50-6- 217(a)(3) authorized us to reverse or modify a trial court’s de cision if the rights of a party were prejudiced because the findings of the trial judge were “n ot supported by evidence that is both substantial and material in light of the entire re cord.” However, as we have previously observed, this code s ection was repealed effective M ay 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 (Te nn. 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. Wo rkers’ Comp. App. Bd. Sept. 6, 2017 ). Consequently, as not ed 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 otherwi se. Tenn. Code Ann. § 50-6-239(c)(7).

B.

Regarding the merits of this appeal, Employer maintains that th e trial court erred in finding Employee was likely to prevail at trial in establish ing a compensable aggravation of her pre-existing mental condition. Employer ass erts 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 shopl ifters and, while unpleasant, such encounters are a normal part of a manager’s du ties.

Employee responds that Employer provided no evidence that being assaulted by a person committing a crime, resulti ng in psychological and physi cal injuries, is a “normal4 job duty of an assistant manage r.” According to Employee, “[i] n her years of employment with Fred’s she did no t have any encounter similar t o 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 qual ify as compensable, a mental injury must arise “primarily out of a compensable physic al injury or an identifiable work-related event resulting in a sudden or unusua l mental stimulus.” Id. Cases focusing on the latter category make clear that (1) the i njury must stem from an identifiable stressful, work-related event producing a sudden m ental stimulus, and (2) the event must be unusual compared to the ordinary stress of the wo rker’s job. Ireton v. Horizon Mental Health Mgmt., LLC , No. E2015-00296-SC-R3-WC, 2016 Tenn. LEXIS 3, at *28 (Tenn. Workers’ C omp. 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 employ ment 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 primaril y 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 employ ee, upon suffering a work-relat ed injury, incurs a disability far greater than if she had not had a preexisting co ndition.” 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. A pp. Bd. June 4, 2015).

Here, the trial court considered the evidence and found Employe e was likely to prevail at trial in establishing an aggravation of her pre-exis ting mental condition. We find nothing in the record establishing the trial court erred i n reaching this conclusion. The only medical opinion in the record is from Employee’s psych iatrist, Dr. Osipchuk, who opined, within a reasonable degree of medical certainty, th at she suffered an aggravation of her pre-existi ng psychiatric condition, and that this aggravation arose primarily out of the January 24, 2017 incident at work. Employ er 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 compa rison to the stress ordinaril y 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 b e 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, rathe r than the day-to-day mental stresses and tensions to which workers in that field are occasionally subjec ted.”).5 Employer also contends that the altercation between Employee an d the shoplifter

was a “minor interaction” that did not result in a sudden or un usual stimulus capable of producing a compensable mental injury and that a manager’s duti es include confronting shoplifters. Employer’s argumen t ignores Dr. Osipchuk’s uncont radicted opinion that Employee suffered an aggravation of her pre-existing condition caused by the altercation. Moreover, the record is silent a s to whether an assistant manag er’s duties typically involve confronting persons co mmitting criminal acts. Nor did Employer present any evidence concerning Employee’s du ties 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 “unusu al occurrence in contrast to [E mployee’s] daily work,” and that, “coupled with her pr eexisting mental condition,” the incident was capable of producing a compensable mental in jury. We are unable to conclu de that the evidence preponderates otherwise at this stage of the case.

C.

Before concluding, we note that the parties filed a “Joint Sta tement of the Evidence,” which the trial judge approved in a separate order. However, as explained below, it is unclear how this do cument could operate as a state ment of the evidence.

The appealing party has the burden of ensuring that an adequat e record is prepared on appeal. Tenn. Comp. R. & Re gs. 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 pe rfect 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 cour t is not provided with a tran script or a statement of the evidence, the “appellate court cannot know what evidence was pr esented to the trial court, and there is no means by which [it] can evaluate the app ellant’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 parti es 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 tri al 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 approv ed by the trial judge was unnecessary, as its contents wer e readily available from the re cord.6 Conclusion

For the foregoing reasons, we hol d that the evidence does not p reponderate against the trial court’s decision. Accordingly, the trial court’s dec ision 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 Bo ard’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.

Na me 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