### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE Assigned on Briefs -

October 17, 2000

ROBERT W. CUNNINGHAM, JR, ET AL. v. SHELTON SECURITY SERVICE, INC., ET AL.

Appeal by Permission from the Supreme Court Special Workers’ Compensation Appeals Panel

Chancery Court of Davidson County No. 95-2712-I(II) Hon. Carol McCoy, Chancellor

No. M1998-00023-SC-WCM-CV - Filed March 1, 2001

In this workers’ com

p ensation case, the estate of the employee, Robert W. Cunningham, Sr., has appea led fro m a chancery court judgment dismissing a claim for death be nefits filed against the employer, Shelton Security Service, Inc. The employ ee, who worked as a security guard for the employer, died of heart failure while performing his duties at a store. At the close of the employee’s proof, the trial court g

ranted the employ

er’s motion to dismiss

on the basis that the emotional stress experienced

by the employee

the night of his death was no

t extraordinary

or unusual for a se

curity guard. The Special Workers’ Compensation Appeals Panel, upon reference for findings of fact

and conclusions of

law, found that there was sufficient e vidence of caus

ation to warrant a

trial and, thus, reversed the trial court’s dismissal. Thereafter, the employer filed a motion for full Court review of the Panel’s decision. We granted the motion for

review to conside

r whether the tri

al court erred i

n di smissing the employee’s claim on the basis that his heart failure did not arise o ut of th e employment

because it was not caused by a mental or emotional stimulus of an unusual or abnormal nature, beyond wha

t is typically

encountered by one

in his occupation. After carefully examining the record and co nsidering the relev ant authorities, we agree with the Panel and reverse the trial court’s judgment.
Tenn. Code Ann. § 50-6-225(e); Findings of Fact and Conclusions of Law by the Special Workers’ Compe

nsation Panel Affirm

ed; Judgment of the

Trial Court Rever

sed and Case Remanded

E. R ILEY A NDERSON , C.J., delivered the opinion of the court, in which A DOLPHO A. B IRCH , J R ., J ANICE M. H OLDER , and W ILLI AM M. B ARKER , JJ., joined. F RA NK F. D ROWOTA , III, J., not participat ing.-2-

Angus Gillis, III, Nashville, Tennessee, for the appellants, Shelton Security Service, Inc. and Employers Insurance of Wausau.
Terry R. Clayton, Nashville, Tennessee, f or the appellees, Robert W. Cunningham, Administrator of the Estate of Robert W. Cunningham, Sr., and William E. Cunningham, Jr.

OPINION

BACKGROUND

Robert W. Cunningham, Sr. (“employee”) was employed by

Shelton Security Service, Inc. (“employer”)

as a security guard. On May 9, 1991, the employee beg an working as a guard assigned to the Little Barn Deli and Market on Clarksville Highway in Nashville. He died of heart failure on March 5, 1992, while performing his duties at the store.

At trial, Mishie Lynn Tay

lor, a night clerk a

t the store , testified that in the early morning hours of March 5, 1992, three young men entered the store. The employe

e, Robert Cunning

ham, Sr., who was performing his duties as a security guard, a sked the young

men to leave because they were attempting to shoplift. Taylor stated that the suspected shoplifters “talked back” to

the employee and cursed at him. She described the verbal confrontation inside the store as “very loud” and

said that the employee sh

outed at the individ

uals to leave the premises. The employee followed the suspected shoplifters outside the store. Although Tay

lor could not hear

what was said while the group was outside, she could tell that they were yelling at each other. The

employee produced

his billy club, butdid not use it. Tay

lor testified that t

he young me

n th reatened t o come back and kill the employee. According to Taylor, the employee had similar

verbal confrontations with people at the store once or twice a week. She said it was common for him to “go out and yell at these people.”

Taylor recounted that although the employee w

as upset when he r

eturned to the stor

e, he did notact overly

concerned abou

t the incident. A sho

rt ti me later, howe ver, the employ ee began to complain that he did not feel well. He began rubbing his arm. Then, he said that he felt “funny and weird”; that he “had never felt like tha t before”; an d that he could not be still. Taylor told the employee to stay where she could observe him at the front of the store, but he went outside. A few minutes later, Taylor found the employee unconscious in his car. Althoug h Taylor pr

omptly called an ambulance, the employee died before he rea ched the hospital.

Dr. Melvin Lightf

ord, an internist

and emergency

room physician, testified that the employee died from “sudden cardiac death.” He explained that sudden cardiac death can be caused by many things, both stressful and non-stressful, such as arrhythmia, myoc ardial infarction, a blood clot, and arteriosclerot

ic cardiovascular

disease. Dr. L

ightford admitte

d that he did

not know exactly

which of these possible problems caused the employee’s death. However, Dr . Light ford state d that the1 The standard o f review is not, as suggeste d by the em ployee, the sa me as that of a d irected verd ict, i.e.,

the trial cour

t’s acti on can be sustai

ned only if there is no m aterial eviden ce to support a verdict for the plai

ntiff under any theory being asserted. See Williams v. Brown , 860 S.W.2d 854, 857 (Tenn. 1993). The motion to dismiss i

nvolved here was ma

de unde r Tenn. R. Civ . P. 41.02(2) (motion for i nvoluntary di

smissal i n non-jury act

ion). The motion was
not one for a dir

ected verdict mad e under T enn. R. Civ. P . 50. Althou gh the two mo tions are som ewhat similar in purpose, there is a f

undamental dif

ference between them

in that the lat

ter is applicable to a jury t rial and the former a bench trial. City of

Columbia v.CFW Constructi on Co. , 557 S.W .2d 734 , 740 (T enn. 197 7).

-3- employee’sdeath was “related to the recent . . . eve nts wi thin an hou r or tw o of hi s deat h.” In response to a hypothe

tical question sett

ing out the facts

of the emp loyee’ s death, Dr. Lightford testified that there was a “re lationship” between the confrontation with the young men and the employee’sdeath. Dr. Lightford opined that “the events, as hy pothesized to me, did indeed precipitate what is called sudden cardiac death . . . .”

The employee’s death certificate stated the cause of death as arteriosclerotic cardiovascular disease. However, no autopsy was performed.Thus, according to Dr . Lightford,

the cause of dea

th listed on the death cer

tificate was an educated guess made by the medical examiner and not an actual diagnosis. After the employee’s estate filed suit seeking death bene fits, the employer filed a motion to exhume the employee’s body for the purpose of c onducting anautopsy. The trial court granted the employer’s motion, but on appeal we reversed because the e mployer failed to m ake a timely request for an autopsy after obtaining reasonable notice of i ts n eces sit y. See Cunningham v. Shelton Sec. Serv., Inc. , 958 S.W.2d 338 (Tenn. 1997).

At the close of the employee’s proof, the trial court g ranted the employ

er’s motion to dismiss because the em otional stres s experienced by the employee the nig ht of his death was “not extraordinary

nor was it unusual in

comparison to the stress he ordinarily experienced in that type of job.” The Special Workers’ Compensation Appeals Panel, upon reference for findings of fact and

c onclus ions of law pursuant to Tenn. Code Ann. § 50-6-225(e)(3), reversed the trial court’s dismissal

on the basis that there was sufficient evidence of

causation to warrant a complete trial. Thereafter, the employer filed a motion for full Court review of the Panel’s decision. We granted the motion to consider whether the trial court erred in dismissing the employee’s claim on the basis

that his heart failure did not arise out of the employme

nt because it was

n o t caused by a mental or emotional stimulus of an unusual or abnormal nature, beyond wha t is typically

encountered by

one in his occupation.

ANALYSIS

Standard of

Review

The standard of revi

ew in a case such

as this is de novo upon the record of the trial court,
acco mpa nie d by a presumption of the correctness of the findings, unless the preponderance of the

e vidence is oth erwise. 1 Tenn. Code Ann. § 50-6-225(e)(2) (1999 & Supp. 2000) . When issues regarding credibility of

witnesses and the weight to be given their testimony are before a reviewing court, considerable deference must be accorded the trial court’s factualfindings. See Krick v. City-4-

of Lawrenceburg , 945 S.W.2d 709, 712 (Tenn. 1997) . However, this Court may draw its own conclusions about the weight and credibility

of expert testimony when the medical proof is presented by deposition, as it was here, since w e are in the same position as the trial judge to evaluate such tes tim ony. See Kr ick v. City of Lawrenceburg , 945 S.W.2d at 712; Orman v. Williams Sonoma, Inc. , 803 S.W.2d 672, 676-77 (Tenn. 1991).
Compensability

In ord er to be eligible for workers’ compensation benefits, an employ ee must suffer an “injury by accident arising out of

and in the course of employment which causes either disablement

or death . . . .” Tenn. Code Ann. § 50-6-102(12) (1999). The statutory requirements that the injury “arise out of” and occur “in the course of” the employ ment a re not synonymous. See Sandlin v. Gentry
, 300 S.W.2d 897, 901 (Tenn. 1957). An injury oc curs “in the cour

se of” employ

ment if it takes place while the employee was performing a duty he or she was employed to perform. Fink v. Caudle
, 856 S.W.2d 952, 958 (Tenn. 1993). Put another way , “the injury

must have substanti

ally originated

from the ‘time and space’ of work, resulting in an injury directly linked to the work environment

or work-related

activities.” Harman v. Moore’s Quality Snack Foods
, 815 S.W.2d 519, 527 (Tenn. Ct. App. 1991) (citation omitted) . Thus, the course of employment requirement focuses

on the time, place and circumstances of the injury. Hill v. Eagle Bend Mfg., Inc. , 942 S.W.2d 483, 487 (Tenn. 1997).

In contrast, “arising out of” employment refers to “cause or origin.” Id. An injury arises out of employment “when there is apparent to the rational mind, upon consideration of all the circumstances,

a causal connection between the conditions under which the work is required to be performed

and the resulting injury.” Fink v. Caudle , 856 S.W.2d at 958. The mere presence of the employee at the place of

injury beca

use of the employment is not sufficient, see Thornton v. RCA Service Co. , 221 S.W.2d 954, 955 (Tenn. 1949), as the injury must result froma danger or hazard peculiar to the work or be caused by a risk inherent

in the nature of the work. See Travelers Ins. Co. v. Googe , 397 S.W.2d 368, 371 (T enn. 1965); Jackson v. Clark & Fay, Inc. , 270 S.W.2d 389, 390 (Tenn. 1954); Thornton v. RCA Serv. Co.
, 221 S.W.2d at 956-57; Harmon v. Moore’s Quality Snack Foods , 815 S.W.2d at 527. As one court has put it, the “danger must be peculiar to the work . . . . [A]n injury pure

ly coincidental, or contemporaneous, or collateral, with the employment . . . will not

cause the injury . . . to be considered as arising out of the employment.” Jac kso n v. Cla rk & F ay, Inc. , 270 S.W.2d at 390.

In the present case, there is no dispute that the employee’s death occur red in the cours e o f his employment. Instead, the dispute focuses on whether the e mployee’s death arose out of the employment. The employer arg ues that the employe

e’s death did

not arise out of the employment because the confrontation with the suspected shoplifters was not an abnormal or unusual occurrence2 The emplo yer also argues that the e mployee’s d eath is not compensa ble becaus e there w as no proof of the cause of death and no proof that the death was related t o the events of March 5, 1992. The employer als o raises a number of evidentiary r elated issues. W e have care fully considere d these issues a nd find them to be withou t merit.

-5- for a person in the employee’s occupation. 2 The employee’s estate r esponds that the employee’s death arose out of his

employment a

s that requiremen

t has been applied

in this Court’s heart attack cases. The estate therefore urges us to reverse the trial court’s dismissal of the ca se.

We agree with the

parties that this c

ase is controlled

largely b y our decisi

ons addressing the compensability

of heart attack

s. The heart atta

ck cases in

this jurisdiction can be categorized into two groups: (1) those that are precipitated by phy sical exertion or strain, and(2) those resulting from mental stress, tension, or some type of emotional upheaval. Bacon v. Sevier County , 808 S.W.2d 46, 49 (Tenn. 1991). If the heart attack results from physical exertion or strain, it is unnecessary that there be extraordinary exertion or unusual physical strain. See id. Thus, it makes no difference that the employee, p

rior to the attack

, suffered from pr eexisting heart disease or that the attack was caused by ordinary phy

sical exertion or the usual physical strain of the employee ’s work. Id.

The rule is diffe

rent, however, w

hen the heart att

ack is caused by

a menta l o r emotional stimulus rather

than physica

l exertion or strain . In such case s, “it is obvious that in order to recover when there is no physical e xertion, but there is

emotional stress, worry, shock, or tension, the heart attack must be immediately precipitated by a specific acute or sudden stressful event[] rather than generalized

employment conditions .” Id. at 52. Thus, if the heart attack is caused by a mental or emotional stimulus rather than physical exertion or strain, there must be a “climatic event or series of incidents of an un usual or abnormal nature” if a recovery is to be permitted. Id. Although “excessive and unexpected mental anxiety, stress, tension or worry attributable to the employment

can cause injury sufficient to justify an awa rd of benefits,” Reeser v. Yellow Freight Sys., Inc. , 938 S.W.2d 690, 692 (Tenn. 1997), the ordinary stress of one’s occupation does not because “[e]motional stress, to some degree, accompanies the performance of any contract of employ ment.” Allied Chem. Corp. v. Wells , 578 S.W.2d 369, 373 (T enn. 1979). I

n other words,

“[n]ormal ups and downs are part of any employment relationship, and as we have said on many previous occasions, do not justify finding an ‘accidental injury’ for purposes of worker[s’] compensation law.” Bacon v. Sevier County
, 808 S.W.2d at 53 (citations omitted). Accordingly, the rule is settled in this jurisdiction that physical or mental injuries caused by worry , anxiety, or emotional stress of a general nat ure or ordinary stress associated with the worker’s occupation are not compensable. The injury must have resulted from an incident o f abnormal and un

usual stressful pr

oportions, rather thanthe day-to-day mental stresses and tensions which workers in that field are occasionally subjected.

With these principles

in mind, we review

the record in the

present case

to determine whether the employee’ s death

arose out of his employment. We note first that there was no physical exertion

or strain involved in precipitating his heart failure. Instead, the mental stress or tension associated withconfronting the suspected shoplifters caused the heart failure, at least according to some of the medical proof. A

pplying the

law as just descri

bed, the trial cou

rt concluded the e

mployee’s d

eath

was not compensable because he was not confronted with circumstances of an unusual or abnormal-6-

nature given his work as a security guard. As the re cord reflects, verbal confrontations occurred at least once a week at the store, and it was common for the employee to “g o out and yell at thes e people.” However, the record also reflects that the individuals chased of f by th e employee threatened

to return and kill him. We believe that this additional circumstance makes a difference and is sufficient to warrant the conclusion that the employ

ee’s death did

not result from generalized employment

con di tions, but from something beyond the norm, even for a security guard. Accordi ngly, we find that the evidence preponderates against the trial court’s finding that the employee’s death did not arise out of his employment.

The reason, simply

put, is that the employee has met the burden of establishing that his heart failure was caused by a mental or emotional stimulus of an unusual or abnormal nature, beyond what is typically encountered by one in the employee’s

position. We thus reiterate the rule again i

n this

case that if the cause or stimulus of the heart attack is mentalor emotional in natu re, such as stres s, fright, ten sio n, s hoc k, a nxi ety, or w orr y, there must be a specific, climatic event or series of incid

ents of an unusual or abn orm al n atu re i f th e cl aim ant is t o be perm itt ed a r ecov ery, but no recovery is permitted for the ordinary mental stresses and tensions of one’s occupation beca use “[e] motiona l stress, to some degree, accompanies the performance of any contract of employ ment.” Allied Chem. Corp. v. W ells , 578 S.W.2d at 373. If the rul e were otherw ise, worker s’ compensa tion covera ge would become as broad as general health and accident insurance, which it i s not. See Jose v. Equifax, Inc. , 556 S.W.2d 82, 84 (Tenn. 1977).
We conclude that the evidence preponderates against the trial court’s finding that the employee’ s death did

not arise out of his

employment.

Accordingly

, we agree wit

h the Panel that the t rial court erred in dismissing the case and that the case must be remanded for further procee dings. We s tress in this rega rd that a dismissal a

t the close of the p

laintiff’s proof

is rarely appropriate

in a workers’ compensation case inasmuch as a reversal of the trial court’s ruling results in additional proceedings and undue delay . The trial court s hould instead hear the entire case and make appropriat e findings o f fact, and al ternative f indings when necessary, for appellate review.

CONCLUSION

In view of the foregoing discussion, we hold that the evidence preponderates against the trial court’s finding that the employee’s death did not arise

out of his employment. Therefore, the trial court’s dismis sal of t he case is reversed and the case remanded for further proce edings consistent withthis opinion. Costs of this appeal are taxed to the appellants, S he lton Security Services, Inc. and Employers Insurance of Wausau, and their surety, for which execution may issue if n eces sar y.

___________________________________ RILEY ANDERSON, CHIEF JUSTI CE