The opinion
FILED
Apr 17, 2026
02:00 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
RAFIK MIKHAIL, Docket No. 2024-50-1447
Employee,
v.
FEDEX SUPPLY CHAIN, INC.,
Employer, State File No. 16062-2020
And
INDEMNITY INSURANCE
COMPANY OF NORTH
AMERICA, Judge Thomas Wyatt
Carrier.
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
On April 14, 2026, the Court heard argument on FedEx Supply Chain, Inc.’s
motion for summary judgment. FedEx contends that the injuries suffered by Mr.
Mikhail while working in its building during a tornado were due to an act of God
and are not covered by workers’ compensation. Mr. Mikhail counters that genuine
issues of material fact exist. For the reasons below, the Court grants FedEx’s motion.
History
FedEx argues that Mr. Mikhail’s injuries arose entirely from an act of God.
Mr. Mikhail counters that genuine issues of material fact exist as to whether the paths
of tornados in 1933 and 1998 made the tornado in 2020 foreseeable, thus placing
him at greater risk than the general public for being injured by a tornado.
In Mr. Mikhail’s response to FedEx’s statement of undisputed material facts,
he admitted the following:
1. He was a FedEx employee on March 3, 2020.
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2. While working at his assigned workplace in FedEx’s Mt. Juliet,
Tennessee building on March 3, he sustained injuries when a wall fell
on him while sheltering in place during a tornado.
Mr. Mikhail offered a newspaper article and map comparing the path of the
tornado to the similar paths of tornadoes in 1933 and 1998. FedEx made hearsay
objections to the admissibility of these documents, which the Court grants.
Analysis
Tennessee Rules of Civil Procedure 56.04 (2025) states a trial court may enter
summary judgment “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue of material fact and that the moving party is entitled to a judgment as a matter
of law.”
If a party who does not have the burden of proof at trial produces evidence
that (1) affirmatively negates an essential element of the nonmoving party’s claim
or (2) demonstrates that the nonmoving party’s evidence at the summary judgment
stage is insufficient to establish the claim, the burden shifts to the nonmoving party
to present evidence establishing at least one genuine issue of material fact for trial.
Soto v. Patterson, 2024 TN Wrk. Comp. App. Bd. LEXIS 35, at *6-7 (Oct. 17, 2024).
The determination of FedEx’s motion requires application of the “act of God”
doctrine developed in workers’ compensation cases. In Rosasco v. West Knoxville
Painters, LLC, 2020 TN Wrk. Comp. App. Bd. LEXIS 57, at *8-9 (Aug. 18, 2020),
the Appeals Board confirmed the continuing viability of this doctrine in post-Reform
Act cases.
In Rosasco, the employee was injured when struck by a falling tree as he
exited a portable toilet after a severe windstorm. In finding the injury was not
compensable, the Board first found that the employer is not an insurer of all
misfortune that befalls an employee while working. Id. at *5. Instead, to be
compensable, the injury must arise primarily out of and in the course and scope of
employment. Tenn. Code Ann. § 50-6-102(12) (2025). An injury arising out of the
employment must have its origin in a peculiar risk to which the employee is
subjected by the employment. Rosasco, 2020 TN Wrk. Comp. App. Bd. 57 at *7.
In Rosasco, the Board cited longstanding law from the Tennessee Supreme
Court, which held that injuries caused by an act of God are not compensable. The
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Court defined an act of God as an event appearing “by the direct, immediate, and
exclusive operation of the forces of nature, uncontrolled or uninfluenced by the
power of man and without human intervention.” Id. at *8-9.
The Board in Rosasco pointed out an exception. Specifically, the Board held
that an employee may recover for injuries sustained by an act of God where the
nature of the employment subjects the employee to a greater risk of injury than that
encountered by the general public. Id. at *7. However, an injury “purely
coincidental, or contemporaneous, or collateral, with the employment . . . will not
cause the injury . . . to be considered arising out of the employment.” Id. at *8.
Here, Mr. Mikhail’s admission of FedEx’s statement of undisputed material
facts negated an essential element of his claim by showing he was injured by the
impact of a tornado. The burden then shifted to Mr. Mikhail to present evidence
creating a genuine issue of material fact as to whether his work at FedEx subjected
him to greater risk of injury from a tornado than that encountered by the general
public.
Mr. Mikhail did not present any evidence his work subjected him to a greater
risk of injury from the tornado than encountered by the general public. Even if
admissible, the newspaper article and map he submitted are not pleadings,
depositions, answers to interrogatories, admissions, or sworn affidavits as required
by Rule 56.04.
Thus, the Court grants FedEx’s motion for summary judgment and dismisses
this case with prejudice to its refiling. FedEx shall pay the $150 filing fee within
five business days of entry of this order, for which execution may issue if necessary.
Unless appealed, this order shall be final 30 days after entry.
IT IS ORDERED.
ENTERED April 17, 2026.
JUDGE THOMAS WYATT
Court of Workers’ Compensation Claims
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CERTIFICATE OF SERVICE
I certify that a copy of this order was sent as shown on April 17, 2026.
Name Mail Email Service sent to:
Anthony Kestner, X tonykestner@wkjustice.com
Employee’s Attorney annkestner@wkjustice.com
Jonathan West and X Jonathan.west@qpwblaw.com
Jamie Glass, Jamie.glass@qpwblaw.com
Employer’s Attorneys Judy.hamer@qpwblaw.com
____________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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Right to Appeal:
If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation
Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims before the expiration of the deadline.
If the order being appealed is “expedited” (also called “interlocutory”), or if the
order does not dispose of the case in its entirety, the notice of appeal must be filed
within seven (7) business days of the date the order was filed.
If the order being appealed is a “Compensation Order,” or if it resolves all issues
in the case, the notice of appeal must be filed within thirty (30) calendar days of
the date the Compensation Order was filed.
When filing the Notice of Appeal, you must serve a copy on the opposing party (or attorney,
if represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar
days after filing the Notice of Appeal. Payments can be made in-person at any Bureau office
or by U.S. mail, hand-delivery, or other delivery service. In the alternative, you may file an
Affidavit of Indigency (form available on the Bureau’s website or any Bureau office)
seeking a waiver of the filing fee. You must file the fully-completed Affidavit of Indigency
within ten calendar days of filing the Notice of Appeal. Failure to timely pay the filing
fee or file the Affidavit of Indigency will result in dismissal of your appeal.
3. You are responsible for ensuring a complete record is presented on appeal. If no court
reporter was present at the hearing, you may request from the Court Clerk the audio
recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your
appeal, which the Appeals Board has emphasized is important for a meaningful review of
the case, a licensed court reporter must prepare the transcript, and you must file it with the
Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,
and you will receive notice once it has been submitted. For deadlines related to the filing of
transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the
Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)
4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties.
If neither party timely files an appeal with the Appeals Board, the Court Order
becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory
orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082