### IN THE SUPREME COURT OF TENNESS EE AT NASHVILLE June 3, 2003 Session
MARY GUESS v. SHARP MANUFACTURING CO. OF AMERICA,

A DIVISION OF SHARP ELECTRONICS CORP.
Appeal by Permission from the Supreme C ourt Special Workers’

Compensation Appeals Panel Chancery Court for Shelby County No. 99-1033-2 Hon. Floyd Peete, Chancellor

No. W2002-00818-WC-R3-CV - Filed August 27, 2003

The dispositive issue in this wor kers’ c ompensat

ion actio n is whether, under the Tennessee Wo rkers’ Compensation Law, the plaintiff suffered a compensable mental injury stemming fro m perceived exposure to the Human Immunodeficiency Virus (HIV). The a

ppel le e filed a

worker s’ compensation claim seeking relief based upon a chroni c mental d

isorder that aro se afte

r she ca me into contact

withthe blood of a co-worker, whom she believed to be HI V positive. The Chancery Courtfor Shelby County

found that the a

ppel lee had suffered a vocational disability as a result of the p sychologic al consequences of the event and awa rded benefits. Prior to argument and consideration by

the Special Workers’ Compensation Panel, an order was entered directing that the

case be hear d by the entir e court. After c onducting our own de

novo review of the

record , we hold that a plaintiff seeking workers’ compensa tion benefit s for a me

ntal injur y du e to exposur

e to HIV must demonstrate actual exposure thr ou gh a medically recognized channel of transmission. Ac co rd in gl y, the Chancery Court erred

in awarding benefits to the appellee based on a finding that the appel lee su ffered a 38% d isabi lity to h er ment al facu ltie s. The judgm ent of the tri al court is reversed.

Tenn. Code A nn. § 50-6- 225(e); Judgment of the Shelby C ounty Chancery Cour t is Reversed

W IL LI AM M. B ARKER , J., delivered the opinion of the co urt, in which F RANK F. D ROWOT A , III, C.J., and E. R IL EY A NDERSON , A DOLPHO A. B IRCH , Jr., and J ANICE M. H OLDER , JJ., joined.

Ronald L. Ha rper and R. Scott

Vincen t, Memphis, Tennessee, for the appellant, Sharp Manufacturing Company of America, a division of Sharp Electronics Corporation.

Donald A. Donati and John F. Can ale, I II , Memphis, Tenness ee, for the appe llee, Ma ry Guess.-2- OPINION

FACTUAL BACKGROUND

The appelle e, Mary

Guess, began

working for the appellant, Sharp Manufacturing Company of America (“Sharp”), in 1984 as an as se mb ly l in e w or ke r. At th e t im e o f t he tr ia l, sh e w as a f iftyyear -oldindivi dual with a high school education and no other additional formal educ ation or vocational training. On November 6, 1998, one of Guess’s co- workers lacerat ed his hand, which resultedin some of the co-worker’s blood getting on Gue ss’s hand. While there was no penetrating injury to Guess, she testified that she ha d open cuts on her hands as well as a fresh manicur e.
Guess testified that as a result of getting this blood on her hands, she was “out of control,” “nervous ,” “sc reaming for help,” “upset,” “ shaking,” and “hy sterical.” She explained that she believedthe blood that she got on her hands to be HI V positive. Her subjective conclusion that her co-worker

had AIDS was based

on the following: the co-worker was sick all the time; he ha d been isolated in the work

environment; he had friends at work who had died of AIDS; he appe ared very frail; he was on the mailing list of a gay rights organization; and he “looked and acte d gay .”

Guess testified that she was hysterical fr om the time of the incident and beg an having

panic attacks about a week or so thereafter. She sought medical treatment from her family prac titioner who took her off work for six weeks beginning

Novembe

r 11, 1998 , due to “agitated depression.” Guess testified that she has significant limitations as a result of her injury and subsequent condition. She disinfec ts her bathroom every time she uses it; she has only been ab le to go to restaurants with her family on a few occasions; she has difficulty sleeping; she tries to distance herself from others; and

on the occasions that she attends church, she sits between her d au ghters for security . She has attendeda f

ew fa mi ly g at he ri ng s, bu t s ta ys by herself in a room. She no longer has sexual relations with her husband.
Appellant Sharp referred Guess to psy chiatrist Dr. Joel Reisman an d his partner, p syc hologist Dr. Roland L

ee. Bot h Drs. Rei sman and L

ee have tr e ated Guess since January 4, 1999 and were continuing to treat

her at the time of trial. At trial, the court admitted into evidence the deposition testimonyof these two doctors, as well as the d eposition te stimony of Dr. Michael Ge lfand, a specialist in the field of infectious disease.

Dr. Reisman diagnosed Guess with Post-Traumatic Str ess Disorder (PTSD) caused by the “work related injury of

November 1998.” Dr. Reisman has pr escribe d variousmedicati ons to combat Guess’s symptoms and continued to presc ribe these medications at the time of the trial. Dr. Reisman assigned G uess a per manent impairment rating under the 5th edition of the American Medical Association Guidelines of a C las s II I, moderate impairment. He sta ted that Guess was vocation ally

impaired because she should not engag e in assembl y lineor production work where blood could be shed, work involving the public, or work that would require a gr eat deal of concentration or focus.1 This s tat utor y su bsection w as del eted by an amendment in 2002, eff

ecti vely chang ing the cla ssi fi cati on of mental injur

ies f rom a schedul ed member injury to t hat of an inj ury t o the body as a whole.

-3- Dr. Lee testified that Guess’s psycholog ical condition was caused by her fear of being exposed to HIV positive blood on November 6, 1998. He further testified that her fear is real and that her perception of the events that transpired is her r ea lity. Acco rding to Dr. Lee , this fear interferes with Guess’s cognitive functioning and social interaction.

Dr. Michael

Gelfand , an infe ctious dise ase spec ialist, te sti fied tha t Guess had been tested five times for HIV and all five tests were negative. Dr. Ge lfand testified that Guess’s chance of beco ming infected was infinitely small by virtue of the unknown status of the source and the mechani sm of claimed conta ct.

On February

7, 2002, the trial court entered its final order

in which it

concluded that Gue ss suffered a vocational disability as a r esult of the psychological consequences of her injury . Based

on this finding, the trial court awarded Guess permanent par tial disability of 38% to her mental faculties, a scheduled member injury

. SeeTenn. Code Ann. § 50-6-207(3)(A)(ii)(ff)(1999). 1
Appellant Sharp sought review of the judgment, arg uing that the evidence prepondera ted agains tthe fi nding tha

t G uess suffered a compensable injury . The appellant also raised several evidentiary

issues: whet her t he court erred in allowing into evidence c ertain documentation purporte dly

establish ing the s exual orie

ntation of the co-w orker w ith whose blo od Guess c ame into contact ; whether the court comm itted reversible error by not allowing the testimony of the appellant’s expert Dr. David Schraberg; and whethe r the court erred in not allowingthe appellant’s counsel to cross-examine Guess on the issue of the content of her t reatmen t s essions. Appellee Guess submitted one additional argument on appeal - whether

the trial court er red in aw arding

only 38% vocational disability.

Prior to oral arguments before the Special Worker s’ Compensation Panel, the case was transferred to the entire Supreme Court for review. As noted, the primary issue is what, if a ny , benefit s the appellee is entitled to for alleged mental injuries arising from her exposure to the blood of a co-worker. Before this Court, Appellant argues that because Guess offered no cr edible proof that she was actually

ex posed to HIV-contaminated blood, there was no basis for her fear and thereforeshe did not suffer a compensable injury . Guess argues that her vocational disability award should be increased to 75% or more because of the severi ty o f her lim itations resulting from the work-related injury

.
We agree with the appellant that absent proof of actual exposure to HIV, the appellee has not suffered a compensable injury under the Workers’ Compensation Law. The refore, for the reasons contained herein, we reverse the judgment of the chancery court.

STANDARD

OF REVIEW-4-

The extent of v ocationa

l disabilit y is a question of fact to be determined from all of the evidence, including lay

and expert testimony. See, e .g. , Cleek v. Wal-Mart Stores, Inc. , 19 S.W.3d 770, 773 (Ten

n. 2000); Nelson v. Wal-Mart Stores, Inc. , 8 S.W.3d 625, 628 (Tenn. 1999). As such,

our review of the tri al court ’s finding s in this ca se is de no vo up on th e r ec or d, “a cc om pa ni ed by a presumption of the co

rrectness of the

finding , unless th

e prepon deranc e of the e vidence is otherwise.” Tenn. Cod

e Ann. § 50 -6-225( e)(2)( 2002); Stone v. City of McMinnvill e , 896 S.W.2d 548, 550 (Tenn. 1995).

We are not bo und by the trial court ’s fact ual fi ndin gs, but rather exam ine th ose fi ndin gs independ ently to determine where the preponderanc e of the evidence lies. Ivey v. Trans Global Gas & Oil , 3 S.W.3d 441, 446 (Tenn. 1999) ( citin g Colli ns v. Howmet Corp. , 970 S.W.2d 941, 943 (Tenn. 1998)). A

lthough d efere nce still m

ust be give n to the tri al judge

when issu es of cr

edibility and weight of

oral testimony are involved, Cleek , 19 S.W.3d at 774 (c itin g Seals v. E ngland /Corsair Upholstery

Mfg. Co. , 984 S.W.2d 912, 915 (Tenn. 1999); Jones v. Hartford Accident & I ndem. Co.
, 811 S.W.2d 516 ( Tenn. 199 1)), this Court is able to make its own independent assessment of the medical proof when the medical testimony is presented by de

po sitio n, id . ( citing Landers v. Fireman’s Fund Ins. Co. , 775 S.W.2d 3 55, 356 (T enn. 1989 ); Henderson v. City of L awrenceburg
, 851 S.W.2d 809, 812 (Tenn. 1993)).

DISCUSSION

This case pr

esents a n issue of first impression in Tennessee: is an employee alleging mental injuries based on percei ved exposu re to HI V in the wo

rk envir onment en

titled to wo

rkers’ compensation benefits where there is no proof of actual exposure t

o the viru s?

Under the statutory scheme g overning Tennessee workers’ compensation claims, injuries by accident “arising out of and in the

scope of employme

nt” are compensable. Tenn. Code Ann. § 50-6- 102(12) (2002); Reeser v . Yellow F reight Sys. , 938 S.W.2d 690 (Tenn. 1 9 97). The statutory require ments that the injury “ar

ise ou t of” an d occur “in the course of” the employ ment are not syn onymous. See Cunningham v. Shelton Sec. Serv., Inc.
, 46 S.W.3d 131, 135 (Tenn. 2001) (citing Sandlin v. Gentry , 201 Tenn. 509, 300 S.W.2d 897, 901 (1957)). The phrase “in the course o f ” refers to time, place and circumstances, and “ar ising out of” refers to cause or origin. Hill v. Eag le Bend Mfg., Inc. , 942 S.W.2d 483, 487 (Tenn. 1997). An accidental injury arises out of and

is in the

course and scope of employ

ment if it has a rational connec tion t o the work and occurs while the employee is engaged in the

duties of employment. Id . (citing Orman v. Williams Sonoma, Inc. , 803 S.W.2d 672, 676 (Tenn. 1991)).

We have previously determined tha tan injury that is pur

ely mental in n ature is c ompensab le under the Workers’ Compensation Law. See Ive y v . Trans G lobal Gas& Oil , 3 S.W.3d 441, 446 n.10 (Tenn. 1999). In Ivey , we interpreted Tennessee C ode Annotated Sectio n 50-6-207(3)(A)(ii)(ff) to cover two type s of injuries to one’s “mental faculties”: (1) mental impairment resulting f rom physical trauma to the brain; and (2) mental or emotional injuries resulting from non-phy sical harm

or trauma. Id . at 447. In discussing the latter type of injury , we stated that the absence of phy sical2 There are two ca ses i n Tennessee deci ded by the Spec ial Wo rkers’ Com pensation A ppea ls Panel that add ress

the is sue of

ment al di sabi li ty st emm ing from expo sure to HIV -conta minate d blo od. T hese c ase we re ad opte d by this Court but were not designated for publi cation. In Stout v. Johnson City Med. Ctr. Hosp., Inc. , No. 03501- 9504-00031, 1995 WL 5 99708 (Tenn. W orkers’ Comp Panel Oct. 11, 1995), a nurse pr icked her f

inger with a needle t

hat had been i nsert ed int o a pat ient

tha t was known to be HIV posi ti ve. The tr ial court foun d tha t the empl oyee h ad s ust aine d a vocati onal disab ility of 62.5 % a nd aw arde d be nefits acc ord ingly. T he P anel affirm ed the decisio n of the t rial cou rt. Similar ly, in Thompson v. Vivra Renal Care, Inc. , No W 200 0-030 17-W C-R3 -CV, 2 001 W L 170 424 3 (T enn. W orkers’ Comp. Panel Dec. 11, 2001), the Panel upheld a deci sion by the t rial cour t to awa rd d isability to a nur se who had pri cked herself with a contaminated needle. In neither case did the emp loyee actually contract the virus.

-5- harm or physical trauma

does not lessen the possible effects that such i nj ury can hav e on both cognitive and vocational abilities. Id . (cit ing Gatlin v. C ity o f Knoxville , 822 S.W.2d 587, 591-92 (Tenn. 1991)).

To be compensab le, the mental injury must have re sulted from an identifiable stressful, work

related event that produced a sudden mental stimulus such as fright, shock, or

excessive unexpected

an xi et y. Id. at 446 n.10 ( citi ng Gatlin , 822 S.W.2d a t 591-92) . On the ot

her hand , “worr

y, a nxiety

or emotional stress of a general nature” is not

compensable, Goodloe v . State , 36 S.W.3d 62, 65-66 (Tenn. 2 001), be cause

the workers’ compensation sy stem “does no t embrac e every stress or strain of daily living or every

undesirable experience encountered in ca rrying out the duties of a contract of employment.” Id . at 66 (quot ing Jose v. Equifax, Inc. , 556 S.W.2d 82, 84 (Tenn. 1977)).
Appellee Guess ar

gues tha t Ivey is controlling because, like the claimant in Ivey , she suffered

a mental injury as a re sult of an “identifiable stressful, work-related event,” that led to fri ght, an

xiety and shock. She alleges that her mental injury is exactly the type contemplated in Ivey

and that no proof of actua l exposure

to HIV is necessary . We do not question t he validity o f the med

ical expe rts’ diagno sis of Post T

raumatic Stress Disorder stemming out of the incident during which Guess got blood of a co-worker on her hand. While PTSD can, in some c irc umstance s, be a co mpensabl e worker s’ compensation injury, see Ivey , 3 S.W.3d at 447, the facts of this case are such that Appellee’s injury w as not one “arising out of” her employ ment.

While this cour

t has not pr

eviousl y vi site d the issue of whether a mental injury stemming from the fea r of cont racti ng HIV or AI DS is compensable in the context workers’ compensation claims, 2 we have addressed this issue in the conte xt of a claim for negligent infliction of emotion distress. In Carroll v. Sisters of Saint Francis Health Servs., I nc. , 868 S.W.2d 585 (Tenn. 1993), the plaintiff sued a ho spital to r

ecover damage s stemming

from her fea

r of contracting AI

DS after pricking her fing ers on dis carded needles

. Th ere, we held that to recover damag es for emotional distress based on the fear of contracting HI

V or AI DS, “a plaintiff must prove, at a minimum, that he or she was actually

exposed to HIV.” Id . at 594.

In Bain v. We

lls , 936 S.W.2d 6 18 (Tenn . 1997), w e aga in held tha

t in order to main tai n a claim for negligent

infliction of emotional distress based on exposure to HI V or AI DS, there must be proof of actual exposure. Bain, a patient a t a drug and alcohol rehabilitation center, wa s placed in the same room

with a patient who was HIV positive without being given a warning or obtaining3 Ba in list s the specif ic modes of documented H IV transmission: unprotect ed sexual int ercourse with an HIVinf ected person; contact

with HIV-infec ted blood, blood co mponents, or blood prod ucts by parenteral mucous memb rane
or non-inta ct skin; trans plants of HIV-inf ected organ s and/or tis sues; trans fusi ons or HIV-inf ected blood; arti fici al ins emina ti on of HIV- inf ecte d semen ; an d p eri nata l t rans miss ion f

rom moth er t o chi ld ar ound t he t ime of birt h. 936 S.W.2d at625 n.5.

4 Pro of that the plaintiff actu ally contracte d HIV is not necessa ry t o recover emoti onal dis tres s inj uries under Car roll or Ba in

. -6- consent. Id . at 620. D uring th at time, the two sha red a ba throom, and Bain had an o pen cut on

his buttocks. Id . Additionally, on one occasion, Bain mistakenly used his roommate’s disposable razor. Id

. We fo u nd that the defendant was entitled to summary judgment because Bain failed to off er proof that he had actually

been exposed to HIV through one of the accepted means of transmission. 3 Id . at 625-26. In so doing, we e xplained that in Carroll , we implicitly held that emotional distress injuries are not r

easonab le, as a matter of

law, in a fear-of-contracting -AIDS case unless the plaintiff actually had been exposed to HIV. 4 Id. at 624.

Bain basically stands for the proposition that without proof of actual exposure, the plaintiff failedto show the

proximate

cause element of neglige nt infliction of emotional distress. Applying

a similar a naly sis in the c ontext of thi s worker s’ compe nsation c laim, we find that without proof of actual exposure, the appellee cannot show that her injury arises out of her employ

ment.

As in Bain
, Guess has of fered no credible evidence that she was actually e

xposed to HIV. There is nothing in the record to establish whether the blood in q ue stion was even HIV positive. Guess’s fears o f contam

ination a re base d on spec ulation regardin g her co-worker’s sexual ori entation and her subsequent ass umption th at he w as HIV positive. Aside from this speculation by the plaintiff, there was no evidence that the blood with w

hich she c ame into c ontact was infected with the virus.
Appellee Guess asks us to rely solely on Ivey in finding her mental injuries to be compensable. However, Ivey is distinguishable from

the case at hand. The plaintiff in Ivey was an employee in a c onvenience store who was robbed at gunpoin t one nig ht. The su dden, ide

ntifiable work-related

event fa ced by Ive y w as one tha

t put her in

real, undeniable danger. Unlike Ivey , the sudden stimulus fac ing Gue ss was not o ne in which she was exposed to any real da nger. Becau se Guess had no proof that

her co-worker was in fact HI V positive, there was no rational connection betweenher injur

y a nd employ

ment. This is particularly true c onsidering the fact that no less than five tests were administered and came bac k negative for the virus.

We are unwilling to accept the appellee’s subjective impressions concerning the co-worker ’s sexual orienta

tion or fr ail medic al condit

ion as pro of that his

blood was in fact co ntaminated. To do so would be to further the prejudices and stereotypes surr

ounding AIDS. In Bain , we spec ially cautionedagainst allowing damage s based on an unfounded fear of con tracting AID S on public policy grounds. Quoting the

Delaware S upreme Court, we stressed the importance of the requirement of actual exposure:5 Hav ing de termin ed tha t the ap pellee ’s claim fo r work ers’ co mpe nsation bene fits fails as a matt er of l aw, we need not ad dress the othe r evide ntiary issue s raised by the p arties.

-7- AIDS is a disease that spawns widespread public misperception based upon the dearth of kno wledge concerning HI V transmission. Indeed, plaintiffs rely upon the degree of public misconception about AIDS to support their claim that their fear was reasonable. To accept this argument is to contribute to the phobia. Were we t o
reco gniz e a claim for the fear of contracting AIDS based upon a me re allegation that

one may have been exposed to HIV, totally unsupported by any

medical evidence, or factual proof, we would open a Pa ndora’s Box of “AIDS-phobia” claims by individua ls whose ignorance , unreas onable suspicion or general pa

ranoia c ause

them apprehensionover the

slighte st of cont

act with HIV -infec ted individ

uals or objec ts. Such plaintiffs would recover fo r th eir f ear o f AI DS, no matte r how irra tiona l. We be li eve the better approach is to assess the reasonablene ss of a plaintiff’s fear of AID S accord

ing to the plaintiff 's actual

--- not potential ---exposure to HIV.

Bain , 936 S .W.2 d at 62 5 (quo ting Brzoska v. Olson , 668 A.2d 1355, 1363 (Del. 1995)).

If a plaintiff

were allowed

to recover under the facts of the pre sent case, any body suffer

ing from a mental injury stemming from any pe

rceived or imagined exposure to harmful substances or situations would be entitled to recovery . We find such a result contrary to the original purpose and continued viability

of the Te nnessee Workers’ Compensa

tion L aw. As su ch, w e are un willing t o award disability benefits to a claimant who suff ers from an irrational fear of exposure to HIV when there is no proof of actual exposure via a medica lly recog nized channel of transmission. Ac co rd in gl y, we reverse the decision of the trial court in its assignment of 38% permanent partial disability to her me

ntal faculties. 5

CONCLUSION

To summarize, after conducting our own de novo re view of th

e recor d, we hold

that a plaintiff seeki ng worker s’ compe nsation be

nefits fo r a menta l injury due to pote

ntial exposu

re to HIV must demon strate a

ctual expo sure th

rough a medical ly recog

nized channel of transmission. The plaintiff, Mary

Guess, de spite coming in co ntact wit h blood fr

om a co-w orker, did not, by the prepo nderan ce of th e evid ence, d emons trate actual expo sure t o the H IV virus throu gh a medica lly recognized

channel of transmission. Accordingly , the chancery court erred in assigning the

appellee, Mary Gue ss, benefits based on a 38% permanent partial disability to her mental faculties.

The judgment of the trial co urt i s reversed, and costs on appeal are ta xed to the appellee, Mary Gue ss.

_____________________________ WIL LI AM M. BARK

ER, JUSTICE