Cunningham v. Shelton Security Service, Inc.

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’ compensation case, the estate of the employee, Robert W. Cunningham, Sr., has

appealed from a chancery court judgment dismissing a claim for death benefits filed against the

employer, Shelton Security Service, Inc. The employee, 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 granted the employer’s motion to dismiss on the basis that the emotional stress

experienced by the employee the night of his death was not extraordinary or unusual for a security

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

conclusions of law, found that there was sufficient evidence of causation 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 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

employment because it was not caused by a mental or emotional stimulus of an unusual or abnormal

nature, beyond what is typically encountered by one in his occupation. After carefully examining

the record and considering the relevant 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’ Compensation Panel Affirmed; Judgment of the Trial Court Reversed and Case

Remanded

E. RILEY ANDERSON, C.J., delivered the opinion of the court, in which ADOLPHO A. BIRCH, JR.,

JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined. FRANK F. DROWOTA, III, J., not

participating.

Angus Gillis, III, Nashville, Tennessee, for the appellants, Shelton Security Service, Inc. and

Employers Insurance of Wausau.

Terry R. Clayton, Nashville, Tennessee, for 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 began 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 Taylor, a night clerk at the store, testified that in the early morning

hours of March 5, 1992, three young men entered the store. The employee, Robert Cunningham, Sr.,

who was performing his duties as a security guard, asked 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 shouted at the individuals to leave the premises. The employee followed the suspected

shoplifters outside the store. Although Taylor 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,

but did not use it. Taylor testified that the young men threatened to 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 was upset when he returned to the store, he did

not act overly concerned about the incident. A short time later, however, the employee 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 that before”; and 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. Although Taylor promptly called

an ambulance, the employee died before he reached the hospital.

Dr. Melvin Lightford, 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, myocardial infarction, a blood clot, and

arteriosclerotic cardiovascular disease. Dr. Lightford admitted that he did not know exactly which

of these possible problems caused the employee’s death. However, Dr. Lightford stated that the

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employee’s death was “related to the recent . . . events within an hour or two of his death.” In

response to a hypothetical question setting out the facts of the employee’s death, Dr. Lightford

testified that there was a “relationship” between the confrontation with the young men and the

employee’s death. Dr. Lightford opined that “the events, as hypothesized 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 death

listed on the death certificate was an educated guess made by the medical examiner and not an actual

diagnosis. After the employee’s estate filed suit seeking death benefits, the employer filed a motion

to exhume the employee’s body for the purpose of conducting an autopsy. The trial court granted

the employer’s motion, but on appeal we reversed because the employer failed to make a timely

request for an autopsy after obtaining reasonable notice of its necessity. 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 granted the employer’s motion to dismiss

because the emotional stress experienced by the employee the night 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

conclusions 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 employment because it was not caused by a mental or emotional

stimulus of an unusual or abnormal nature, beyond what is typically encountered by one in his

occupation.

ANALYSIS

Standard of Review

The standard of review in a case such as this is de novo upon the record of the trial court,

accompanied by a presumption of the correctness of the findings, unless the preponderance of the

evidence is otherwise.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 factual findings. See Krick v. City

1

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 court’s action can be sustained only if there is no m aterial eviden ce to support a verdict for the plaintiff under

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

here was made under Tenn. R. Civ. P. 41.02(2) (motion for involuntary dismissal in non-jury action). The motion was

not one for a directed 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 fundamental difference between them in that the latter is applicable to a jury trial and the former a

bench trial. City of Columbia v. CFW Construction Co., 557 S.W .2d 734 , 740 (T enn. 197 7).

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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 we are in the same position as the trial judge to evaluate such

testimony. See Krick 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 order to be eligible for workers’ compensation benefits, an employee 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 employment are not synonymous. See Sandlin v.

Gentry, 300 S.W.2d 897, 901 (Tenn. 1957). An injury occurs “in the course of” employment 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 substantially

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 because 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 from a 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 (Tenn. 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 purely coincidental, or contemporaneous, or collateral, with the employment . . . will not

cause the injury . . . to be considered as arising out of the employment.” Jackson v. Clark & Fay,

Inc., 270 S.W.2d at 390.

In the present case, there is no dispute that the employee’s death occurred in the course of

his employment. Instead, the dispute focuses on whether the employee’s death arose out of the

employment. The employer argues that the employee’s death did not arise out of the employment

because the confrontation with the suspected shoplifters was not an abnormal or unusual occurrence

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for a person in the employee’s occupation.2 The employee’s estate responds that the employee’s

death arose out of his employment as that requirement has been applied in this Court’s heart attack

cases. The estate therefore urges us to reverse the trial court’s dismissal of the case.

We agree with the parties that this case is controlled largely by our decisions addressing the

compensability of heart attacks. The heart attack cases in this jurisdiction can be categorized into

two groups: (1) those that are precipitated by physical 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, prior to the attack, suffered from preexisting heart disease or that the attack was

caused by ordinary physical exertion or the usual physical strain of the employee’s work. Id.

The rule is different, however, when the heart attack is caused by a mental or emotional

stimulus rather than physical exertion or strain. In such cases, “it is obvious that in order to recover

when there is no physical exertion, 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 unusual 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 award 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 employment.” Allied Chem.

Corp. v. Wells, 578 S.W.2d 369, 373 (Tenn. 1979). In 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 nature or

ordinary stress associated with the worker’s occupation are not compensable. The injury must have

resulted from an incident of abnormal and unusual stressful proportions, rather than the 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

with confronting the suspected shoplifters caused the heart failure, at least according to some of the

medical proof. Applying the law as just described, the trial court concluded the employee’s death

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

2

The emplo yer also argues that the e mployee’s d eath is not compensable because there was no proof

of the cause of death and no proof that the death was related to the events of March 5, 1992. The employer also 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.

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nature given his work as a security guard. As the record reflects, verbal confrontations occurred at

least once a week at the store, and it was common for the employee to “go out and yell at these

people.” However, the record also reflects that the individuals chased off by the 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 employee’s death did not result from generalized

employment conditions, but from something beyond the norm, even for a security guard.

Accordingly, 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 in this

case that if the cause or stimulus of the heart attack is mental or emotional in nature, such as stress,

fright, tension, shock, anxiety, or worry, there must be a specific, climatic event or series of incidents

of an unusual or abnormal nature if the claimant is to be permitted a recovery, but no recovery is

permitted for the ordinary mental stresses and tensions of one’s occupation because “[e]motional

stress, to some degree, accompanies the performance of any contract of employment.” Allied Chem.

Corp. v. Wells, 578 S.W.2d at 373. If the rule were otherwise, workers’ compensation coverage

would become as broad as general health and accident insurance, which it is 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 with the Panel that

the trial court erred in dismissing the case and that the case must be remanded for further

proceedings. We stress in this regard that a dismissal at the close of the plaintiff’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 should instead hear the entire case and

make appropriate findings of fact, and alternative findings 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 dismissal of the case is reversed and the case remanded for further proceedings consistent

with this opinion. Costs of this appeal are taxed to the appellants, Shelton Security Services, Inc.

and Employers Insurance of Wausau, and their surety, for which execution may issue if necessary.

___________________________________

RILEY ANDERSON, CHIEF JUSTICE

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IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

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

SERVICE, INC., ET AL.

Chancery Court of Davidson County

No. 95-2712-I(II)

No. M1998-00023-SC-WCM-CV - Filed May 2, 2001

ORDER

Shelton Security Service, Inc., et al., through counsel, has filed a petition for rehearing

pursuant to Tenn. R. App. P. 39. After due consideration, it is ORDERED that the petition for

rehearing is DENIED.

PER CURIAM

Drowota, J., not participating