1

 

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Rigoberto Morales ) Docket No. 2016-08-0876

)

v. ) State File No. 58695-2016

)

Boshwit Brothers, Inc., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Allen Phillips, Judge )

Reversed and Remanded—Filed March 22, 2017

In this interlocutory appeal, the employee challenges the trial court’s conclusion that he 

did not present sufficient evidence that he will likely prevail at trial in establishing 

injuries arising primarily out of his employment. The employee was injured when he was 

assaulted by an unknown person while performing his work duties as a groundskeeper for 

the employer. He sustained gunshot wounds that required surgery and hospitalization, 

and the employer denied the claim on the basis that the assault did not arise out of the 

employment. Following an expedited hearing, the trial court concluded that the street 

risk doctrine did not render the employee’s injuries compensable and that the employee 

was not likely to prevail at a hearing on the merits. The employee has appealed. Having 

carefully reviewed the record, we reverse the trial court’s decision and remand the case.

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding 

Judge Marshall L. Davidson, III, joined. Judge David F. Hensley filed a separate 

dissenting opinion.

Bryce W. Ashby, Memphis, Tennessee, for the employee-appellant, Rigoberto Morales

Paul Todd Nicks, Germantown, Tennessee, for the employer-appellee, Boshwit Brothers, 

Inc.
2

Factual and Procedural Background

 

Rigoberto Morales (“Employee”), a thirty-four-year-old resident of Shelby 

County, Tennessee, sustained gunshot wounds to his legs on July 22, 2016, while 

performing his work duties as a groundskeeper for Boshwit Brothers, Inc. (“Employer”). 

The facts surrounding the incident are generally undisputed. Employee worked as a 

groundskeeper at an apartment “community” owned by Employer.1 Employee also lived 

in one of the apartment buildings, although his rent was not a part of his compensation. 

On the day of the incident, he was mowing an area of grass near a public road when he 

was approached from behind by an unknown individual who had a gun. The individual 

grabbed Employee, forced him into a nearby area of trees, and, when Employee 

attempted to flee, fired three shots, striking Employee twice. Employee denied knowing 

the assailant and denied having seen him since that time. The perpetrator was not

apprehended, and there was no apparent motive for the shooting.

Employee was transported by ambulance to a hospital where surgery was 

performed to treat broken bones and other injuries caused by the gunshots. Employee 

remained hospitalized for four days due to a fractured right tibia and right fibula. He 

testified he still experiences symptoms and limitations related to his injuries, and he has 

not returned to work. 

At an expedited hearing, Employee testified that the area surrounding the 

apartment community is a high crime area. He described seeing police cars on a frequent 

basis and hearing gunshots. The property manager testified that no crimes on the 

property had been reported to her since she began working for Employer in December 

2015.

As a groundskeeper, Employee testified that one of his duties was to keep the 

grass mowed, and that it was within his discretion as to which area of the grass needed 

mowing on any given day. The area he was mowing on the day he was assaulted and 

shot was beside a public road bordering Employer’s property line. At the expedited 

hearing, Employee argued that because the requirements of his employment placed him 

in close proximity to a public road and required him to operate noisy equipment, he was 

placed at an increased risk of assault and should receive workers’ compensation benefits 

pursuant to Tennessee’s street risk doctrine. Employer argued that the street risk doctrine 

is inapplicable under the circumstances of this case and that the workers’ compensation 

law cannot be interpreted in a remedial manner to favor Employee.

 

1 Employer’s property manager distinguished an apartment “community” from an apartment “complex”

by explaining that the apartment community occupies approximately two city blocks that are not enclosed 

or gated.
3

The trial court concluded Employee failed to present sufficient evidence to 

establish he will likely prevail at a hearing on the merits in proving that his injury arose 

out of the employment. Specifically, the trial court reasoned as follows:

In this case, the Court finds [Employee] was the victim of an entirely 

random assault, neutral as to his employment. Further, the Court finds the 

street risk doctrine does not apply. [Employer] did not openly solicit the 

general public to visit its apartment complex as a part of its business and 

there is no proof the general public visited this particular complex more 

frequently than any other neighborhood. The assailant did not single out 

[Employee] for assault because of his employment nor was [Employee]

indiscriminately exposed to dangers of the public by his employment.

In reaching this conclusion, the trial court observed that, because Employee lived

in the apartment community where he worked, he could just as easily been assaulted 

while going about his personal business. Moreover, the trial court reasoned that, because 

Employer’s business is “providing a residential community,” any invitation to the public 

to visit its premises is “collateral during the limited circumstances of rental inquiries and 

leasing activities.” Employee has appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision is statutorily mandated 

and limited in scope. Specifically, “[t]here shall be a presumption that the findings and 

conclusions of the workers’ compensation judge are correct, unless the preponderance of 

the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2015). The trial court’s 

decision may be reversed or modified if the rights of a party “have been prejudiced 

because findings, inferences, conclusions, or decisions of a workers’ compensation judge:

(A) Violate constitutional or statutory provisions;

(B) Exceed the statutory authority of the workers’ compensation judge;

(C) Do not comply with lawful procedure;

(D) Are arbitrary, capricious, characterized by abuse of discretion, or 

clearly an unwarranted exercise of discretion; or

(E) Are not supported by evidence that is both substantial and material 

in the light of the entire record.” 

Tenn. Code Ann. § 50-6-217(a)(3) (2015).

Analysis

On appeal, Employee raises a single issue: whether the trial court erred in 

concluding that the street risk doctrine does not apply to the facts of this case. In support 
4

of his position, Employee contends that his employment “exposed him to the dangers of 

the street” and that the conditions of his employment increased his risk of injury. We 

agree.

To provide guidance in determining the compensability of an assault that occurs 

while an employee is at work, the Tennessee Supreme Court developed a framework that 

categorizes assaults into one of three categories: “(1) assaults with an ‘inherent 

connection’ to employment such as disputes over performance, pay or termination; (2) 

assaults stemming from ‘inherently private’ disputes imported into the employment 

setting from the claimant’s domestic or private life and not exacerbated by the 

employment; and (3) assaults resulting from a ‘neutral force’ such as random assaults on 

employees by individuals outside the employment relationship.” Woods v. Harry B. 

Woods Plumbing Co., 967 S.W.2d 768, 771 (Tenn. 1998). It is undisputed in this case 

that the assault upon Employee falls into the third category of “neutral assaults” and 

therefore “may or may not be compensable depending on the facts and circumstances of 

the employment.” Id. We conclude the preponderance of the evidence at the expedited 

hearing supports a finding that Employee is likely to prevail at trial in showing his 

injuries arose primarily out of his employment pursuant to the street risk doctrine.

In Hurst v. Labor Ready, 197 S.W.3d 756 (Tenn. 2006), the Supreme Court 

addressed the application of the street risk doctrine in circumstances similar to those 

presented in this case. The employee in Hurst was killed by a gunman in a random 

assault while waiting outside his employer’s office to be paid. Id. at 758. In discussing 

its prior adoption of the street risk doctrine, the Court explained “we approved the socalled ‘street risk’ doctrine that allows an employee to prove causation where the 

employment ‘exposes an employee to the hazards of the street.’” Id. at 761 (quoting 

Braden v. Sears, Roebuck and Co., 833 S.W.2d 496, 499 (Tenn. 1992)). The Court then 

noted that the evidence showed the employee was targeted, at least in part, because he 

was outside his employer’s office when the shooting occurred. Id.

Similarly, in Mattress Firm, Inc. v. Mudryk, No. W2014-01017-SC-R3-WC, 2015 

Tenn. LEXIS 689 (Tenn. Workers’ Comp. Panel Aug. 24, 2015), the Supreme Court’s 

Special Workers’ Compensation Appeals Panel applied the street risk doctrine in 

circumstances where employees were “indiscriminately exposed to the public in the 

course of their duties.” Id. at *22. The employee in Mudryk worked as a store manager 

at one of the employer’s retail locations. Id. at *2. While performing her work duties, 

she became aware of an attempted robbery and was injured during an ensuing altercation. 

Id. at *3-4. In affirming the trial court’s application of the street risk doctrine, the Panel 

relied upon a prior case in which there was “indiscriminate exposure to the general 

public” as a condition under which the employee’s work was required to be performed, 

leading to the Supreme Court’s conclusion that “the actions of persons on those premises 

can be considered a hazard of employment.” Id. at *20-21 (quoting Beck v. State, 779 

S.W.2d 367, 371 (Tenn. 1989)).
5

Like the employees in Hurst and Mudryk, Employee in the present case had job 

duties that exposed him to the general public. His duties included picking up trash, 

moving furniture to dumpsters, and mowing lawns. The property manager testified that 

Employee’s job was classified as a groundskeeper and that he had no access to anyone’s 

private residence. She clarified that he was “strictly all grounds.” With respect to his 

mowing duties, Employee was to mow “whatever needed to be cut.” The property 

manager also admitted on cross examination that “anyone can drive in and out in any of 

these roads that either cross through these properties . . . or around these properties.” 

Moreover, this unfettered public access included the streets “around the area where 

[Employee] was shot.”

In denying Employee’s claim, the trial court in the present case relied on Padilla v. 

Twin City Fire Ins. Co., 324 S.W.3d 507 (Tenn. 2010). In that case, the employee was 

found murdered near the back door of the employer’s premises. The employee had been 

shot in a pre-dawn attack, and no motive was ever revealed. The Supreme Court 

concluded that the circumstances of the case did not fall within the street risk doctrine. 

Specifically, the Court observed that, while the employer’s premises were located in a 

high crime neighborhood, “[the employer] was not frequented by the public nor did it 

advertise or attract the public.” Id. at 513. Moreover, because the business was not one 

frequented by the public, the Court found that “when [the employee] was at the shop, he 

was as removed from the public as he could possibly be. The business was not open to 

the public. [The employee’s] duties did not require him to deal with the public. 

Members of the public were rarely in the shop.” Id. The Supreme Court agreed with the 

trial court’s conclusion that “the conditions of [the employee’s] employment at [the 

employer] did not indiscriminately expose him to dangers of the public, including the 

danger of crime in the neighborhood.” Id.

The facts of the case before us are readily distinguishable from those in Padilla. 

Rather than being at the back door of a business not generally accessible to the public, 

Employee was engaged in his regular work duties beside a public road on property to 

which the general public had unfettered access. Furthermore, we disagree with the trial 

court’s conclusion that Employee was no more vulnerable than any other member of the 

general public. The unrefuted evidence shows that Employee’s operation of a 

lawnmower, at the behest of Employer, required his attention to be focused on the terrain 

directly in front of him, hampered his senses, and impaired his ability to remain alert to 

his general surroundings, making him more vulnerable to a random assault such as 

occurred in this case.

2

 

2

In his dissent, our colleague emphasizes what he views as a dearth of evidence supporting our 

conclusion that the operation of the lawnmower increased Employee’s risk of injury. Yet, in addition to 

Employee’s testimony as quoted in the dissent, he also testified, “[t]he lawnmower – the machine was on. 

I was wearing glasses for the sun. And I was mowing the lawn as I always did.” During crossexamination, Employee agreed he had been mowing about one hour when the incident occurred. With 

respect to the assailant’s approach, Employee testified, “I didn’t know where he was coming from. He 
6

We also disagree with the trial court’s conclusion that Employer did not invite the 

general public onto its property except in a “collateral” way. There were banners placed 

near the property inviting passersby to inquire about renting an apartment. In fact, the 

property manager testified “we’re trying to draw them in to where we are.” Moreover, 

any number of delivery persons, utility service workers, and individuals visiting residents 

for personal or business reasons could be on the property at any given time. The 

apartment community was not gated and there was no fence around the perimeter. The 

public was, in fact, invited onto the property for a variety of reasons and, more 

importantly, had unrestricted access to the common areas of the property, creating “risks 

of the street” in and around Employer’s property. In our view, this is precisely the kind 

of case in which the street risk doctrine was meant to be applied. Therefore, we reverse 

the trial court’s finding that Employee did not present sufficient evidence to establish he 

will likely prevail at a hearing on the merits in showing that his injuries arose primarily 

out of his employment.

3

Finally, we note Employer’s argument that Tennessee’s workers’ compensation 

law can no longer be interpreted in a remedial or liberal fashion in favor of an injured 

worker. See Tenn. Code Ann. § 50-6-116 (2015). While we agree with Employer’s 

statement in the abstract, we do not believe that the street risk doctrine conflicts with a 

court’s obligation to construe the law “fairly, impartially, and in accordance with basic 

principles of statutory construction.” Id. The Tennessee Supreme Court’s adoption of 

the street risk doctrine was not preconditioned on a liberal or remedial interpretation of 

the statute and can be applied in an even-handed manner consistent with the legislature’s 

mandate.

Conclusion

For the foregoing reasons, we hold that the evidence preponderates against the 

trial court’s decision at this interlocutory stage of the case. Accordingly, the trial court’s 

decision is reversed, and the case is remanded to the trial court for a determination of the 

extent of benefits, if any, to which Employee may be entitled.

 

grabbed me . . . and turned me around . . . with force.” Moreover, Employer’s property manager offered 

nothing to rebut any of this testimony. In fact, she agreed with Employee’s counsel that “his job 

specifically puts him on the street right there.”

3 At the expedited hearing, Employer did not dispute that Employee’s injuries occurred in the course of 

his employment. Thus, we need not address that element.
1

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD 

Rigoberto Morales ) Docket No. 2016-08-0876 

) 

v. ) State File No. 58695-2016 

) 

Boshwit Brothers, Inc., et al. ) 

) 

) 

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Allen Phillips, Judge ) 

Dissenting Opinion - Filed March 22, 2017 

Hensley, J. dissenting. 

I respectfully dissent and would affirm the trial court’s denial of benefits. In my 

view, the trial court correctly found that the evidence presented at the motion hearing was

insufficient to determine that Employee would likely prevail at a hearing on the merits. 

The issue before the trial court was whether Employee presented sufficient evidence from 

which the trial court could determine he would likely prevail at trial in establishing his 

injuries “arose primarily out of” the employment, thereby entitling Employee to an award 

of medical benefits.1 Like the majority opinion, the focus of the parties’ arguments and 

the trial court’s decision was the application of the “street-risk” rule. The trial court 

determined the rule did not operate to render the claim compensable and denied benefits, 

concluding it “cannot extend coverage under these circumstances as such would cause 

[Employer] to become an insurer against every accidental injury . . . occurring during 

employment.” In my opinion, the preponderance of the evidence does not overcome the 

statutory presumption that the trial court’s findings and conclusions are correct. See

Tenn. Code Ann. § 50-6-239(c)(7) (2016). Accordingly, I would affirm the denial of 

medical benefits based on the evidence thus far presented. 

The street-risk rule was expressly adopted in Tennessee in Hudson v. Thurston 

Motor Lines, Inc., 583 S.W.2d 597 (Tenn. 1979). Observing that “the standards 

1 Although Employee’s petition for benefit determination requested both medical and temporary disability 

benefits, his attorney announced at the motion hearing that “to the extent . . . we’re seeking [temporary 

disability benefits], we would reserve that for a full hearing later, should that be necessary.”
2

employed by this Court in deciding whether accidents arise out of employment have led 

to diverse results,” the Hudson Court determined that the “correct resolution” of the case 

“involve[d] a consideration of the risks and dangers inherent in a truck driver’s 

employment, rather than the objective of the assailants.” Id. at 602. Noting that “[n]o 

one can quarrel with the conclusion that a truck driver for a motor freight carrier is 

exposed to the hazards of the streets and highways to a substantially greater extent than is 

common to the public,” the Court stated that this exposure “is the basis for the street-risk 

rule, which simply stated, is that the risks of the street are the risks of the employment, if 

the employment requires the employee’s use of the street.” Id. 

In Hudson, the Court also noted it did not “think that knowledge of the motivation 

behind the senseless attack upon [the employee] or whether the object was personal theft 

or employer theft provide[d] the proper basis upon which to determine compensability.” 

Id. at 603. Nonetheless, the Court stated that if the motivation behind the attack “is 

conceived to be essential to justify an award . . ., we believe there was sufficient nexus 

between the assault and [the employee’s] employment,” noting

[i]t is beyond question that the one thing that distinguished [the employee] 

from other members of the general public that were in and around the 

[location] was the fact that he was the driver of [the employer’s] tractortrailer that had a CB antenna, and presented the potentiality, to the 

assailants, of worthwhile loot for theft of the vehicle which was the 

responsibility of [the employee]. 

Id. The Court determined that the circumstances “provide[d] a rational connection with 

the employment” that was analogous to prior Tennessee cases allowing a recovery and 

distinguishable from those cases where “there was nothing to identify the employee with 

his employment, at the time and place of the assault.” Id.

Addressing another assault case several years later, the Tennessee Supreme Court 

observed that the “correct focus in assault cases involves a consideration of the risks and 

dangers inherent in the employment,” stating “[a]n employee need only show that an 

assault has a rational, causal connection to the employment in order to establish the injury 

arose out of the employment.” Braden v. Sears, Roebuck & Co., 83 S.W.2d 496, 499 

(Tenn. 1992). The Court further stated: 

To establish this causal connection, workers whose employment exposes 

them to the hazards of the street, or who are assaulted under circumstances 

that fairly suggest they were singled out for attack because of their 

association with their employer, are entitled to establish this causal 

connection with the aid of the street risk doctrine. 

Id. (emphasis added). 
3

Subsequently, the Tennessee Supreme Court determined that, for purposes of 

analyzing whether assaults upon employees “arise out of” the employment for workers’ 

compensation purposes, assaults can best be divided into three categories of cases: (1) 

those involving an “inherent connection” to employment such as “disputes over 

performance, pay or termination”; (2) those stemming from “inherently private” disputes 

imported into the employment setting from the employee’s private life and not 

exacerbated by the employment; and (3) those resulting from “a ‘neutral force’ such as 

random assaults on employees by individuals outside the employment relationship.” 

Woods v. Harry B. Woods Plumbing Co., 967 S.W.2d 768, 771 (Tenn. 1998). The Woods

Court noted that assaults with an “inherent connection” to the employment are 

compensable; those stemming from an “inherently private” dispute imported into the 

employment setting from an employee’s private life and not exacerbated by the 

employment are not compensable; and those resulting from a “neutral force” may or may 

not be compensable, depending on the facts and circumstances of the employment. Id.

I agree with the determinations of the trial court and the majority that, based on the 

evidence presented in the motion hearing, the assault in this case is best described as 

resulting from a “neutral force.” A “neutral force” assault is one that is neither personal 

to the employee nor distinctly associated with the employment. See, e.g., Wait v. 

Travelers Indem. Co., 240 S.W.3d 220 (Tenn. 2007). Here, there was no evidence that 

the person who committed the assault was part of the working or employment 

relationship or was on Employer’s premises on any business related to Employer or 

Employee. Employee acknowledged that after his assailant dragged him to the woods 

and knocked him down, the assailant said he “was looking for someone.” However, his 

testimony that he did not know his assailant and had never seen him before or after the 

assault was unrefuted. Thus, it is necessary to examine the facts and circumstances of the 

employment and its relationship to the assault to analyze whether Employee presented 

sufficient evidence at the motion hearing for the trial court to determine he would likely 

prevail at trial in establishing his injuries “arose primarily out of the employment.”

2

The phrase “arising out of” refers “to the cause or origin of the injury,” Padilla v. 

Twin City Fire Ins. Co., 324 S.W.3d 507, 511 (Tenn. 2010), and it requires that a causal 

connection exist between the employment conditions and the resulting injury. Travelers 

2 The parties’ arguments, the trial court’s decision, and the majority opinion are based on analyses of the 

street-risk rule, but none of these analyses address whether the 2013 Workers’ Compensation Reform Act 

requires a different analysis of the street-risk rule. Specifically, the definitions of “injury” and “personal 

injury” were altered in the 2013 Reform Act to include the requirement that an injury arise “primarily” 

out of the employment to be compensable. See Tenn. Code Ann. § 50-6-102(14) (2016). Because the 

parties did not raise this issue before the trial court and because, in my view, the evidence does not 

preponderate against the trial court’s determination that employee would not likely prevail at a hearing on 

the merits, I find it unnecessary in this dissent to consider the effect, if any, these definitions in the 

Reform Act had on the application of the street-risk rule.
4

Ins. Co. v. Googe, 397 S.W.2d 368, 370 (Tenn. 1965). As the Tennessee Supreme Court 

has observed, 

[t]he mere presence of the employee at the place of injury because of the 

employment is not enough [to render the claim compensable], 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, an injury purely coincidental, 

or contemporaneous, or collateral, with the employment . . . will not cause 

the injury . . . to be considered as arising out of the employment.

Blankenship v. Am. Ordnance Sys., LLC, 164 S.W.3d 350, 354 (Tenn. 2005) (citations 

omitted). In adopting the street-risk rule in Hudson, the Court recognized that certain 

types of employment place an employee in the path of risks that, while borne by the 

general public, are increased as a result of the employment. Thus, those risks then 

become a hazard or danger of the employment not because the risk itself is related to the 

employment, but because the employment renders the employee particularly vulnerable 

to the risk.

The majority opinion concludes that Employee was made particularly vulnerable 

to this assault because of his employment, bringing this injury within the scope of the 

street-risk rule and rendering the claim compensable. I disagree. In my view, the 

evidence failed to establish that Employee’s work placed him in greater risk than any 

other member of the public or that his employment played a role in causing his injuries. 

He was mowing in an open area of the apartment community in close proximity to a 

public street where, although the public was not prohibited, Employer conducted no

business. The nature of Employer’s business was not to serve the general public as in a 

retail establishment, but to provide and maintain housing for such persons as entered into 

a rental agreement with Employer. 

 There was no evidence presented to suggest that Employee was robbed or that 

any attempt was made to rob Employee. Other than the possibility of mistaken identity, 

the evidence suggests the unprovoked attack was a purely random event without any 

known motive. It simply had no rational connection with the employment. There is no 

evidence in the record to suggest Employee was attacked because of his affiliation with 

Employer. In fact, there was no evidence to indicate Employee worked for Employer

beyond the fact that he was mowing grass on premises owned by Employer. Although 

one could surmise he was “on the job” for some employer because he was mowing the 

grass in the apartment community, nothing identified him as an employee of the 

apartment community. He could just as easily have been working for a landscaping 

company or have been an independent contractor. In short, nothing surrounding the 

circumstances of the attack suggested the attack was in any way connected with the 

employment relationship. Thus, to establish a causal connection to his employment, 

Employee was required to present evidence from which the trial court could determine he 
5

would likely prevail at trial in establishing that his employment exposed him to the 

hazards of the street. See Tenn. Code Ann. § 50-6-239(d)(1) (2016); Braden, 833 S.W.2d 

at 499.

 In determining that the street-risk rule applies in this case, my colleagues rely, at 

least in part, on the fact that Employee was operating a lawnmower at the time of the 

attack, suggesting that his senses were impaired, thereby increasing his vulnerability. As 

stated in the majority opinion, “[t]he unrefuted evidence shows that Employee’s 

operation of a lawnmower, at the behest of Employer, required his attention to be focused 

on the terrain directly in front of him, hampered his senses, and impaired his ability to 

remain alert to his general surroundings, making him more vulnerable to a random assault 

such as occurred in this case.” I disagree that the “unrefuted evidence” was as stated by 

the majority, and I disagree with the conclusion the majority reaches from the evidence 

on this issue, which was essentially limited to two responses of Employee to questions 

presented to him:

Q. Could you hear him coming?

A. No.

Q. Why not?

A. Because the lawnmower was on and it was making a lot of noise.

There was no evidence to suggest that, had the mower not been running, 

Employee would have perceived the danger of an approaching assailant or would have 

been able to avoid the assault. There was no evidence that the noise of the lawnmower 

“impaired his ability to remain alert to his general surroundings” as the majority 

concluded. There was no evidence suggesting where the assailant came from, and there 

was no evidence excluding the attacker as being a resident in the apartment community. 

Employee testified the attacker grabbed him by his T-shirt and “turned [him] around.” 

He testified he “didn’t know where [the attacker] was coming from.” There was no 

evidence beyond testimony concerning Employee’s proximity to the public street and the 

noise from the lawnmower to suggest that Employee’s work played any part in the assault

or exposed him to the hazards of the street. Moreover, there was no evidence that 

Employee would have been able to reach safety or otherwise avoid the attack had he 

recognized the danger. In my opinion, the trial judge correctly determined that the 

evidence at this stage of the proceedings was insufficient to bring this random assault 

within the scope of workers’ compensation coverage. 

The majority discusses two opinions that my colleagues say applied the street-risk 

rule “in similar circumstances.” In my opinion, each is factually distinguishable from the 

instant case. In Hurst v. Labor Ready, 197 S.W.3d 756 (Tenn. 2006), the employee was 

killed under circumstances that, unlike the instant case, clearly related to his employment, 

as recognized by both the trial court and the Supreme Court:
6

As the trial court found, the shooting was related to Hurst’s employment; 

indeed, he was outside Labor Ready’s office waiting to get paid in 

accordance with Labor Ready’s payment procedure when the shooting 

occurred. There is no evidence that Hurst was simply loitering or that the 

incident was unrelated to his employment. Similarly, the evidence shows 

that the altercation did not stem from an “inherently private” dispute; to the 

contrary, after carefully weighing the credibility of the witnesses, the trial 

court found that Hurst did not make any inciting comments or take any 

actions that provoked the shooting. Finally, the trial court, citing the 

“street-risk” doctrine, found that the shooting “stemmed from” Labor 

Ready’s enforcement of its restroom policy and Hurst’s association with 

Labor Ready. Although Hurst was not wearing a uniform or clothing 

identifying him as a Labor Ready worker, the evidence supports the trial 

court’s finding that Hurst was identifiable as a Labor Ready employee 

because he was standing directly in front of Labor Ready’s office with other 

Labor Ready workers while waiting to be paid.

Id. at 761-62 (emphasis added).

In Mattress Firm, Inc. v. Mudryk, No. W2014-01017-SC-R3-WC, 2015 Tenn. 

LEXIS 689 (Tenn. Workers’ Comp. Panel Aug. 24, 2015), the employee, who was the 

manager on duty at the employer’s retail store, sustained injuries in an encounter when 

she pursued two persons posing as customers who came into the store and stole the 

employee’s purse from under a desk at the front of the store. The employer argued the 

trial court erred in applying the street-risk rule because the employee was not 

“indiscriminately exposed to the general public.” However, the Panel agreed that the 

street-risk rule was correctly applied to the facts and circumstances of that case.

It is undisputed that Employer’s Perimeter Mall store was a retail 

establishment, open to anyone who chose to walk through its doors. It is 

likewise undisputed that Employee’s job duties included greeting and 

assisting any person who came into the store and presented as a customer. 

We agree with the trial court that this constitutes “indiscriminate exposure 

to the general public” as described in [Wait v. Travelers Indem. Co. of 

Illinois, 240 S.W.3d 220 (Tenn. 2007)].

Additionally, the facts in this case are analogous to those in Beck v. State, 

779 S.W.2d 367 (Tenn. 1989). In Beck, the Court affirmed an award of 

workers’ compensation benefits to a driver’s license examiner who was 

sexually assaulted at her place of employment and suffered mental injuries. 

The Court reasoned that the “assailant had access to Plaintiff because her 

workplace was open to the public. . . . [Her] indiscriminate exposure to the 

general public was one of the conditions under which her work was 
7

required to be performed, and the actions of persons on those premises can 

be considered a hazard of the employment.” 

Id. at *20-21 (citations omitted).

Here, unlike in Hurst, the assault on Employee had nothing to do with Employer’s 

policies, nor was there anything to identify Employee with Employer or any other 

employment relationship beyond the fact that he was mowing grass. And in contrast to 

the employee in Mudryk, Employee’s job duties did not present indiscriminate exposure 

to the general public. His job duties did not involve meeting or greeting the public as was 

the case with the store manager in Mudryk.

In my view, based on the limited evidence admitted at the motion hearing and the 

statutory presumption that the “findings and conclusions of the workers’ compensation 

judge are correct,” see Tennessee Code Annotated section 50-6-239(c)(7), I agree with 

the trial court’s determination that the attack and Employee’s injuries were “purely 

coincidental, or contemporaneous, or collateral, with the employment,” and that 

Employee’s “mere presence . . . at the place of injury because of the employment” is 

insufficient to establish that Employee would likely prevail at a hearing on the merits. 

On that basis, I would affirm the trial court’s denial of benefits.
 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

 WORKERS’ COMPENSATION APPEALS BOARD

Rigoberto Morales ) Docket No. 2016-08-0876

) 

v. ) State File No. 58695-2014 

) 

Boshwit Brothers, Inc., 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 22nd day of March, 2017.

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Fax 

Number

Via 

Email

Email Address

Bryce W. Ashby X bryce@donatilaw.com

Paul Nicks X pnicks@travelers.com

Allen Phillips, 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

 

Matthew Salyer

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