### IN THE SUPREME COURT OF TENNESS EE

SPECIAL WORKERS’ COMP ENSATION APPEALS P ANEL

AT JACKSON August 20, 2001 Session ROBERT LEEGRAND v. TRINITY UNIVE RSAL INSURANCE Direct Appeal from the Chancery Court for Madison County No. 55719 Joe C. Morris, Chancellor

No. W2000-02664-SC-WCM-CV - Mailed March 20, 2002; Filed May 22, 2002

This worker s' compensation appeal has been referred to the Special W orkers' Compensation Panel of the Supre

me Court in accordanc e with Tennessee Code Annotated § 50-6-225(e)( 1999) for a hearing and repo

rting tothe Supreme Court of findings of fact and conclusions of law. The appellant present s the following issues for review: (1) Whether the trial court erred in ruling that the plaintiff didnot sustain an injury tha t arose out of his e

mployment; (2) whether the trial court erred in ruling that the plain tiff rec eived no p ermane

nt disability from his injuries; (3) whether the trial court erred in failing to

make a sp ecific f

inding as t

o the bene

fit rate , and (4) wheth er the trial cou rt erre d in failing to award plaintiff discretionary costs. Although we hold that the plaintiff's injury arose out of the plaintiff's employment, we affirm the trial court's conclusion that the plaintiff re ceived n o permanent disability from his injury. Tenn. Code Ann. § 50-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court

is Affirmed in part, Reversed in part and Dismissed
R OBERT L. C HILDERS , S P
. J., delivered the opinion of the court, in which J ANICE M. H OLDER , J., and J OE C. L OSER , Sp. J. joined. J. Mark Patey, Jackson, Tennessee, for the appe llant, Robert LeeGrand.
W i lliam F. Kendall, III, B. Duane Willis, Jackson, Tennessee, and J. Micha el Morgan, Nashville, Tennessee, for appellee, Trinity Universal I nsurance. MEMORAN

DUM OPINION
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann.§ 50-6-335(e)(3) for the hearing and reporting of findings of fact and conc lusions of law.-2-

Pl aintiff, Robert LeeGrand, filed a Complaint for workers' compe nsation on January 28 , 1999. The trial was heard on August 8, 2000. At the conclusion of the proof, the trial court found plaintiff's injuries resultedfrom an altercation precipitated by personal re asons and, ther efore, did notarise out of the employment relationship. The t rial court also found that plaintiff sustained no permanent

disability from the injury. As a result the trial court denied plaintiff's claim and dismissed the action. For the reasons discussed below, we rever se in part and affirm in part, and dismiss. FACTS Plaintiff, a forty-one year old African-A merican man, had been employe d with M & S Masonry as a brick mason's assistant since No vember, 1998. Lat e in the work day on January 12, 1999 plaintiff

was instr

ucted to g et anothe

r batch o f mortar , or mud, f or use in l aying bri cks. Plaintiff was assisting another employee in taking the pans of mortar to the bottom o f the bric

klayers ' scaffold, and the other employee transported the pans to the top of the sca ffold. Several employees were working on top of

the scaffold. Plaintiff

asked one of them, Tommy Truex (Truex), how much mud was left

in the pan s. Truex looked down at plaintiff and asked why plaintiff had made so much mud, and call e d plaintiff "a dumb ass nigger". Plaintiff then climbed up on top of the scaffold. While atop the scaffold he approached Truex to ask why he would speak to plaintiff in suc h a manner. As plaintiff approached Truex, Truex threw two bricks at plaintiff, striking him in the leg and head, which caused

plaintiff to fall about twelve feet from the scaffold to the ground, resulting in injuries to plaintiff's back. Plaintiff h ad suffered a previous work r elated in jury to his b ack in Au gust, 1997 while working at International Mill Service (IMS). T hat i njury required surgery in May, 1998 for a ruptureddisc at L5-S1. Plaintiff filed a workers ' compensation claim for the August, 1997 injury that was se ttled in Se

ptember , 1998. Pla

intiff wa s subseque

ntly rele ased to r

eturn to w ork in August, 1998, and attempted to retur n to wo rk at IMS, but resigned shortly thereafter and began looking for another job. After going on a belated honeymoon in S eptember, 1998 plaintiff began working for M & S Masonry in November, 1998. Plaintiff was treated by Dr. James G. Warmbrod, Jr. f or the injuries he received from the January 12, 1999 incident. Dr. War mbrod's in

itial diag nosis was a resolving cervical lumbar strain. Plaintiff u nderwe nt a MRIthat Dr. Warmbrod opined showed a small recurr ent lumbar disk. Dr. Warmbrod

agreed with the opinion of Dr. Robert J. Barnett that plaintiff had a five percent (5%) permanent

partial impairment to the low back and a four percent (4%) permanent partial impairment to the neck as a result of the fall from the scaff old.
Dr. Robert J. Barnett saw plaintiff to perform an impairment evaluation on October 18, 1999. Dr. Barnett had previously given plaintiff a permanent impairment rating for the ba ck injury h e suffered in August, 1997. It w as Dr. Ba rnett's o pinion tha

t plain tif f sustained a five percent (5%) permanent

partial anatomical impairment to his low back, and a four percent (4%) permanent partial anatomical impairment to his neck, as a result of the fall from the scaffold, for a

total of nine percent (9%) permanent partial anatomical impairment to the body as a w hole.-3-

Dr. Lowell F. Stonecipher saw plaintiff for an independent medical exa mination on May 26, 1999. Dr. Stonecipher opined that plaintiff had a possible re curren t disk, but he could not say whether the possible condition was caused by the fall from the scaffold or by the pr e vious d isk surgery from the August, 1997 back in jury. Regardless of the cause, however, Dr . Stonecipher testified that plaintiff had no additional anatomical impairment from the possible recurre nt disk. Dr. John D. Brophy treated plaintiff for the work-related back injury that plaintiff suffered in August, 1997, and performed the disk surgery on May 29, 1998. Dr. Brophy also saw plaintiff on February 17, 1999 after the fall from the scaffold. Dr. Brophy diagnose d mechanical neck and back pain withou t evid ence of radiculopathy or myelopathy. He stated that a lthough the March, 1999 MRI was sug g estive of a possible recurrent herniated disk, he did not think that there w as evidence of a recurrent herniated disk, based on his findi ngs fr om revie wing the MR I test re sults, his physical examination of plaintiff, and plaintiff's history. Dr. Brophy's opinion was that plaintiff's condition was not advanced by, and that plaintiff had no permane nt impairmentfrom, the fall from the scaffold. ANALYSIS
The tria l court, after hearing testimony and weighing the evidence, found that the focus of the altercation, or fight, was for per sonal rea sons in the use of a r

acial slu r, and tha t worker s' compensation benefits did not apply to this case. The trial court also foun d that there was no permanent disability as a result of plaintiff's injury. Appel late rev

iew is de novo upon the record of the trial court, accompanie d by a presumption of correctness of the findings of fact, unless the pre ponderance of t

he ev idence i s otherwise. Tenn. C ode Ann. § 50-6-225 (e)(2). This tribunal is not bound by the trial court's findings, but instea

d conduc ts an inde

pendent e xaminatio n of the r

ecord to determi n e where the preponderance

lies. Galloway v. Memphis Drum Serv., 8 22 S.W.2d 5 84, 586 (Tenn. 1991). Considera

ble deference must be given to the trial court's finding of fact, especially where issues of credibi lity are involved. Collins v. Howmet, 970 S.W.2d 941, 943 ( Tenn. 199 8). The a ppellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposit

ion testimony as the trial judge. Orman v. Sonoma, Inc., 803 S.W.2d 672, 676-77 (Tenn. 1991).
An employee's right

to recover under the Workers' Compensation Ac t requires a finding that the injury arose "out of and in the course of employ ment." Tenn. Code Ann. § 50-6-102(5). The phrases "arising out of" and "in t he course o f" employm ent compr

ise two se

parate require ments. Woods v. Harry B. Woods Plumbing Co., 967 S.W.2d 768, 7 71 (Ten n. 1998). The phrase "in the course of" refers to the time, place and circumstances under which the injury occurred. McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 699 (1956 ). The ph rase "arising out of" refers to an injury's origin. Id. The "course

of employment" req

uiremen t is satisfi ed when a

n injury oc curs with

in the time and place limitations of t he employment relationship and during an activity that had some connection-4-

with the employee's job-related functions. Woods, supra at 771. Th ere is no dispute that plaintiff was on the job site, during working hours when he was injured.
We next look a

t whether plaintiff 's injurie s arose out of his e mployment. An accident arises outof employment when there is a causal relationship between the employment and the injury. Orman v. Williams Sonoma, Inc. 8 03 S.W.2d 6 72, 676 (T enn. 1991 ). Issue s of wheth er assa ults upon employees arise out of the scope of employment can b e divided into three general classifi cations: (1) assaults with a n " 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 exacer bated by the employme

nt; and (3) assaults resulting from a "neutral force" such as random assaults on employees by individuals outside the employment relationship. Woods, supra. Assaults with an "inherent connection" to employment are compensable. See W.S. Dickey Mfg. Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493 (1961) (injuries arising out of dispute over job performance

compensa

ble). We have re viewed th

e trial te stim ony of the employees who were present when plaintiff was injured to determine whether the assault on plaintiff had an inherent connection to plaintiff's employment. Tommy Truex gave the following testimony regard ing the ev ents lea

ding up to th

e assaul t: It started at 2:30. We were out of mud. All the masons were standing on the scaf fold, Robe

rt being th

e forklif t driver. There w as anothe r forklif t driver. I told Robert to go make up another batch of mud. "We ar e out of mud". He sa

id, "The mi xer has a

lready b een cle aned out" . I said, " Well, I don't care if the mixer has been clea ned out. We can't stand here for an hour".

. . . So about a quarter till 3:00 or ten minutes till 3:00, we got to wondering, well, where's the mud, where's the mud, so I went acr oss the building. The mixers were on the back side of the building, and I yelled down, "What's - - You know , come on a nd bring th

e mud. We 've got to u se it up", so Robert come around and he had two batches of mud. His pans overflowed, so, of course, the bricklayer s and I are upset because we ain't going to stay past 3:30. We're - - Brickmasons (sic) are going to make sure the mud is gone

so we ca n leave t hat job at 3:30, and we don't care ho w we do it. We throw the mud in a

block, be hind a wa ll, just to get rid of it so we can go home. Well, that's when the argument started.

. . . [Plaintiff] said, "What you gonna do with all that mud?" I said . . . I called Robert a stupid nigger. . . and then an argument ensued.
Truex further testified that "[t]he whole thing was about the job. The whole argument was-5-

about the job, about not having enough mud on the scaffolds. Th e bricklayers were going to be standing there for an hour."
Ano ther employee

who also w itnessed

the even ts, Charli e Hollis, t

estified that h e hear d plaintiff ask Truex, "what are you going to do with the rest of the mortar?" He said Truex replied, "You stupid nigg er, why d id you make

so much?" Another employee, Kevin Dillon, witnessed the events and testifie d th at plainti ff aske d Truex, "what ar e you gonn a do with a

ll that mor

tar?" "Tommy called him a dumb-ass nigger and [plaintiff] told him to come down off the scaff old." The only other employee to testify, other than plaintiff, was Charlie Miller, a partner in M & S Masonry. Mi ller offered no testimon

y about an

y events b efore T

ruex mad e the ra cial slur to plaintiff. He testified that what first brought everything to his attention was when plaintiff came to him and sa

id, "I'm no t going to ha

ve nobody

calling me

. . . the "n" word". While the evide nce esta blishes tha

t the rac ial slur up set plaint iff, it also establishes that the assault by Truex on plaintiff originated in a dispute about the work that plaintiff was doing on the job site. We find that plaintiff's injuries had an "inherent connection" to the employment setting and arose out of employment as contemplated by the Workers' Compensation Act. We findthe evidence preponderates against the trial court's judgment on this issue and we reve rse. The next issue for our review is whether plaintiff sustained a pe rmanent disability as a res ult of his injury. There w as a

conflict in the testimony of the four physicians who testified. Dr. Barnett testified, and Dr. Warmbrod agreed, that plaintiff suffered a permanent impairment as a r esult of the fall from the scaffold. Dr. Brophy and Dr. Stonecipher te stified that plaintiff did not suffer a permanent

impairment from the fall. The trial judge chose to believe the testimony of Dr. Brophy and Dr. Stone cipher o ver that of the oth er physic ians. If there is conflicting medicaltestimony, the trial judge is free to conclude that the opinion of a particular expert should be accepted over that of another expert. Thomas v. A etna Life & C asualty Co, 812 S.W.2d 278 (Tenn. 1991). Wefind that the evidenc e does no t prepond erate a gainst the trial cou rt's judgme

nt that pla

intiff su s tained no permanent disability. We affirm the judgment of the trial court on this issue. The two remaining issues have been pretermitted in light of our decision affirming the trial court's judgment thatthe plaintiff sustained no permanent disability. We, therefore, af firm the trial court in p art, reverse in

part, an d dismiss. Co sts are ta xed to the plaintiff /appella nt.

___________________________________ ROBER T L. CHILDERS, SPE CIAL JUDGE-6- 

### IN THE SUPREME COURT OF TENNESSEE

AT JACKSON ROBERT LEEGRAND, Appellan t v. TRINITY UNIVER SAL INSURAN CE, Appellee

Chancery Court for Madison County No. 55719 Joe C. Morris, Chancellor
No. W2000-02664-SC-WCM-CV - Filed May 22, 2002

JUDGMENT This case is beforethe Court upon Applicant’s motion for review pursuant to Tenn. Code Ann. § 50-6-225(e)(5)(B), the entire record, including the order of refer ral to the Special Wo

rkers' Compensation Appeals Panel, and the Panel's Memorandum Opini on set ting fo rth it s find ings of fact and conclusions of law, which are incor porated herein by

reference; Whereupon, it appears to the Court that the motion for

review i s not well- taken and should be DENIED; and
It is, therefore, ordered that the Panel' s findings of fact and conclusions of law areadopted and affirmed, and the decision of the Panel is made the judg ment of the Court.
Cos ts will be as sessed to Appellan

t Robert L

eeGra nd for wh

ich execu tion may issue if
ne ce ss ar y.
PER CURIAM
Holder, J., not participating