Opinion

MIKHAIL, RAFIK v. FEDEX SUPPLY CHAIN, INC.

  • 2026 TN WC 42
Court
Tennessee Court of Workers' Compensation Claims
Filed
Apr 17, 2026
Status
Published
On the bench
Wyatt
Cited by
0 cases

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

2

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

3

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

4

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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