Griffin, Douglas v. Al’s Liquor Store, D/B/A Frugal McDoogals

COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

DOUGLAS GRIFFIN )

Employee, ) Docket No.: 2015-06-0020

)

v. ) State File No.: 77527-2014

)

AL’S LIQUOR STORE, D/B/A FRUGAL ) Date of Injury: SEPT. 27, 2014

MCDOOGALS, )

) Judge: BAKER

Employer, )

)

And )

)

NORGUARD INS. CO. )

EXPEDITED HEARING ORDER

THIS CAUSE came before the Court upon the Request for Expedited Hearing

filed on May 19, 2015, by Douglas Griffin, the employee, pursuant to Tennessee Code

Annotated section 50-6-239. Mr. Griffin asked the Court to review the file and issue a

decision without a hearing. The employer, Al’s Liquor Store d/b/a Frugal McDoogals

(McDoogals), requested an evidentiary hearing. The Court convened an in-person

evidentiary hearing on June 17, 2015. Attorney Cully Ward represented Mr. Griffin, and

attorney Allen Callison represented McDoogals. Upon review of Mr. Griffin’s request for

expedited hearing, the evidence presented at the hearing, and in consideration of the

applicable law, the Court finds that Mr. Griffin is entitled to temporary disability and

medical benefits.

ANALYSIS

Issue

Whether Mr. Griffin’s September 27, 2014 workplace accident arose primarily out

of and in the course and scope of his employment for McDoogals.

Evidence Submitted

The Court admitted the following exhibits into evidence:

Exh. A Medical records of Douglas Griffin (150 pages) and table of contents (1

page)

Exh. B Affidavit of Douglas Griffin dated May 18, 2015 (2 pages)

Exh. C Affidavit of Dr. Keith Caruso dated April 29, 2015, and attached

documentation (27 pages)

Exh. D Affidavit of Trena Smith dated May 23, 2015 (2 pages)

Exh. E Wage Statement.

The Court designated the following as the technical record:

 Form C-23, Notice of Denial of Claim for Compensation, April 9, 2015

 Petition for Benefit Determination, April 10, 2015

 Dispute Certification Notice, May 13, 2015

 Request for Expedited Hearing, May 19, 2015, with attachments

 Mr. Griffin’s Expedited Hearing Pre-hearing Brief

 McDougal’s letter Objecting to Hearing on Record with attachments, May

25, 2015

 Mr. Griffin’s Reply to Employer’s Statement of Response, May 27, 2015,

with attachment

 McDougal’s letter to Ms. Shrum in response to Employee’s Reply, May 28,

2015

 McDougal’s Pre-Hearing Brief

 McDougal’s Witness List

 McDougal’s Exhibit List.

The Court did not consider attachments to the above filings unless admitted into

evidence during the Expedited Hearing. The Court considered factual statements in the

above filings, or any attachments to them, as allegations unless established by the

evidence.

History of Claim

Mr. Griffin is a fifty-five- (55) year-old resident of Davidson County, Tennessee,

who worked as a cashier for McDoogals. His duties included ringing up items for

purchase, helping customers find items in the store, retrieving stock from the warehouse

and assisting customers in loading items into their cars. Mr. Griffin testified that he did

not have a written job description or instruction concerning his job duties. He further

testified that he was not given written instruction on dealing with shoplifters.

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On September 27, 2014, Mr. Griffin arrived at McDoogals at 8:00 a.m. to start his

shift. Around 11:30 a.m., Mr. Griffin was checking out customers at the “fourth”

register, approximately thirty-to-forty feet (30’-40’) from the front doors, while his co-

employees, Samantha and Trena Smith, worked the “first” and “second” registers, located

closer to the front doors.1 The store was very busy.

Mr. Griffin stated that he saw Samantha walk out of the store and begin speaking

with a man just outside the front doors. Approximately fifteen (15) seconds later, Mr.

Griffin saw Ms. Smith leave her register, and the waiting customers, and walk out the

front doors as well. Mr. Griffin thought it odd that Ms. Smith and Samantha had left the

store. He stated that he did not know why they left but continued to cash out customers.

Shortly after Ms. Smith and Samantha left the store, Mr. Griffin noticed more

activity by the front doors. To Mr. Griffin, it appeared that the man with which

Samantha had been talking had gotten into his car and was now “kind of shaking” Ms.

Smith and Samantha. In his affidavit, Mr. Griffin stated that he saw “glimpses of arms

flailing.” (Exh. B). Mr. Griffin then heard “two female voices yelling and screaming for

help, very seriously.” When asked whether he knew it was his co-employees who were

“involved,” Mr. Griffin responded “yes.” Mr. Griffin stated that at that point in time, he

had no idea what was happening but knew he had to help Ms. Smith and Samantha.

Mr. Griffin then left his register and made his way through the crowded store to

the front doors. When he arrived outside, Mr. Griffin testified that “there was no one

there, the car was gone; the people were gone.” Mr. Griffin took a few steps off the curb

and then stopped and looked to the left. At that point Mr. Griffin was standing in the

parking lot of McDoogals immediately in front of a car.

Mr. Griffin testified that he recognized the car as the one driven by the man who

had been talking with Samantha and Ms. Smith. The man stared at Mr. Griffin from

inside the car as he “gripped” the steering wheel and “clenched” his jaw. At that

moment, Mr. Griffin testified that he knew the man intended to run him over.

Immediately thereafter, the man drove the car forward into his leg. When the bumper of

the car contacted his left leg, he stated that he did not have time to get out of the way and

“. . . had no choice but to just kind of fold over onto the car and just grab on.” After he

grabbed onto the hood, the driver accelerated out of the parking lot taking Mr. Griffin

with him. When the driver slowed to make a right hand turn onto Eighth Avenue, Mr.

Griffin fell off the hood and onto the pavement in the middle of the road.

The driver who hit Mr. Griffin was ultimately identified as a shoplifter.

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Ms. Smith provided an affidavit identifying her co-employee as “Samantha Atchley.” Throughout his

testimony, Mr. Griffin referred to her only as “Samantha.”

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McDoogals pursed misdemeanor theft charges against the shoplifter and authorities also

levied assault charges with Mr. Griffin as the key witness.

Mr. Griffin has not returned to work for McDoogals, or anyone else, since the day

of the accident. The authorized treating physician, Dr. Keith Caruso, provided an

affidavit where he opined that Mr. Griffin suffers from post-traumatic stress disorder, as

well as a major depressive disorder, as a result of the incident. Dr. Caruso further stated

that Mr. Griffin, because of his psychiatric injury, would not be able to work for a period

of six (6) months to one (1) year. (Exh. C).

On cross-examination, Mr. Griffin stated that he thought he heard the voices of

Samantha and Ms. Smith calling for help when he made his way to the front door.

However, he was not one hundred percent sure, “in that moment of emergency,” who had

been crying for help. When asked whether it was a fair statement that “he had been in the

wrong place at the wrong time,” Mr. Griffin replied, “I can’t argue with that. No.”

Ms. Smith provided an affidavit that stated the following concerning the events

that occurred in the parking lot:

When the car had fully exited the parking spot and the driver

was shifting the gear into drive, Doug Griffin came running

out of the store and stood directly in front of the vehicle and

yelled “No!” at the driver. It was clear he was trying to

prevent the car from exiting the parking lot. The car inched

forward as if it was threatening to bump him. However,

rather than get out of the way, Doug Griffin jumped on the

hood of the car and held onto the hood near where the

windshield wipers are. He could have gotten out of the way,

but intentionally jumped onto the car. The car did not

accelerate into him as described in the police report.

(Exh. D).2

Concerning treatment of shoplifters, Mr. Griffin testified that he saw employees

chase shoplifters out of the store, tackle them inside the store and take shoplifters to the

back where McDoogals had a pair of handcuffs. He also was aware that McDoogals’

employees did not detain some shoplifters. Mr. Griffin testified that he had seen an

employee who had gotten into a physical altercation with a shoplifter. He further

testified that the store and warehouse manager had gotten into a fist fight with a

2

During the hearing, counsel for McDoogals asked Mr. Griffin whether he had seen a recording of the

incident. Neither party showed the recording to the Court or entered it as an exhibit. The Court has not

viewed the recording.

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shoplifter. Additionally, Mr. Griffin witnessed another employee receive a gift certificate

from “the lady upstairs, Debbie,” after the employee followed a shoplifter out of the store

and recovered a bottle of “skulls head vodka.” He stated that, instead of reprimanding

employees who confronted shoplifters, management was “kind of cheering” and telling

them they had done an “excellent job.”

Jarrett Bottom, a fifteen- (15) year McDoogals’ employee and the store’s manager,

testified that only management had the authority to pursue shoplifters. If a shoplifter

leaves the building with merchandise and flees in a car, Mr. Bottom stated that a cashier’s

goal should be to get the car’s tag number and be a good witness. Mr. Bottom stated that

he tries to convey this information to McDoogals’ employees but he is not always in the

store.

Concerning the accident involving Mr. Griffin, Mr. Bottom stated that Samantha

was terminated shortly after the event occurred. Mr. Bottom did not provide any further

information about her termination. According to Mr. Bottom, neither Samantha nor Ms.

Smith reported injuries from the incident.

Mr. Bottom also testified that the area around McDoogals is “very safe.” He

stated there had been no assaults on McDoogals’ property. Mr. Bottom further testified

that no one had been struck by a vehicle in the parking lot of McDoogals within the past

fifteen (15) years prior to the incident involving Mr. Griffin.

Despite its denial of the claim, McDoogals continued to provide medical benefits

to Mr. Griffin. McDoogals, however, suspended payment of temporary total disability on

March 11, 2015.

Stipulations

At the outset of the hearing, McDoogals and Mr. Griffin stipulated, only for

purposes of this Expedited Hearing, that Mr. Griffin’s mental injury arose out of the

accident itself rather than the physical injury he suffered. Based on this stipulation, and

because Dr. Keith Caruso, the authorized treating physician, has opined that Mr. Griffin

cannot work due to his mental injury, the parties agreed that if the Court determines that

the incident arose primarily out of and in the course and scope of his employment,

McDoogals would be required to resume paying Mr. Griffin temporary total disability

benefits and continue providing medical benefits. Specifically, temporary total disability

benefits would be owed from March 11, 2015, the date McDoogals ceased paying those

benefits, until Mr. Griffin reaches maximum medical improvement or is released to return

to work.

The parties also stipulated that Mr. Griffin earned an average weekly wage of

$433.53, which yields a compensation rate of $289.02.

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Mr. Griffin’s Contentions

Mr. Griffin contends that the incident causing his injury arose primarily out of and

in the course and scope of his employment for McDoogals. Mr. Griffin maintains that he

went to the aid of co-employees when he heard their cries for help and that a fleeing

shoplifter ran over him when he went outside to investigate the situation. Mr. Griffin

argues that he acted within the course and scopes of his employment when he came to the

aid of co-employees whom he believed were in distress.

He further argues that the incident arose out of the employment because the man

who ran him over was attempting to flee after he had shoplifted items from McDoogals.

Mr. Griffin denies that he attempted to stop the shoplifter and maintains that the car ran

over him because he did not have time to get out of the way.

McDoogals’ Contentions

McDoogals argues that the incident did not arise primarily out of Mr. Griffin’s

employment. McDoogals argues that there is no causal connection between the incident

and the employment because the risk of Mr. Griffin being struck by a fleeing shoplifter

was not any greater as a result of his employment with McDoogals. McDoogals also

characterized the incident as a neutral “assault” and argued that the employment did not

increase Mr. Griffin’s risk of this type of assault from the general public. Finally,

McDoogals contends that the shoplifter did not assault Mr. Griffin because he worked for

McDougals.

McDoogals further argues that the incident did not occur in the scope of

employment because Mr. Griffin deviated from his job duties as a cashier when he left

the store to assist a person in distress. McDoogals argues that the “Good Samaritan

Rule” bars recovery because Mr. Griffin’s actions did not benefit the employer.3

Findings of Fact and Conclusions of Law

Standard Applied

“The Workers’ Compensation Law shall not be remedially or liberally construed

in favor of either party but shall be construed fairly, impartially and in accordance with

basic principles of statutory construction favoring neither the employee nor

employer.” Tenn. Code Ann. § 50-6-116 (2014). At an expedited hearing, an employee

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McDoogals also raised the defense that Mr. Griffin had willfully violated a known safety rule that

prohibited McDoogals’ employees from chasing shoplifters. At the hearing, counsel for McDoogals

conceded that McDoogals had not carried its burden of proving this affirmative defense. The Court

agrees.

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need not prove every element of his or her claim by a preponderance of the evidence in

order to be eligible for benefits. McCord v. Advantage Human Resourcing, No. 2014-06-

0063, 2015 TN Wrk Comp App Bd LEXIS 6, *7-8, 9 (Tenn. Workers’ Comp. App. Bd.

March 27, 2015); cf. McCall v. Nat’l Health Corp., 100 S.W.3d 209, 214 (Tenn.

2003). Instead, an employee must come forward with sufficient evidence from which the

trial judge could conclude that the employee is likely to prevail at a hearing on the

merits. Id.

Factual Findings

The Court finds that Mr. Griffin believed that his co-employees, Ms. Smith and

Samantha, were in danger, and that he left McDoogals with the intent of coming to their

aid. Mr. Griffin did not know that the unidentified man had shoplifted from McDoogals.

Mr. Griffin did not intend to stop the shoplifter from leaving the parking lot when he

stood in front of the car. Mr. Griffin could not avoid the car driven toward him by the

shoplifter and had no choice but to hold onto the hood of the car, after it hit him, to avoid

being run over. McDoogals did not have a safety rule that prohibited its employees from

confronting shoplifters. People had shoplifted from McDoogals in the past.

Application of Law to Facts

I. Mr. Griffin’s objection to Mr. Bottom’s testimony.

At the hearing, McDoogals called Jarrett Bottom, the general manager of

McDoogals, as a witness. Mr. Griffin’s counsel objected to Mr. Bottom testifying. The

Court reserved ruling on Mr. Griffin’s objection pending issuance of this order and

allowed Mr. Bottom to testify with the understanding that the Court would not consider

his testimony if it sustained the objection.

Mr. Griffin, through counsel, argued that the Court should not consider Mr.

Bottom’s testimony because McDoogals failed to provide an affidavit from Mr. Bottom

prior to the Expedited Hearing. Mr. Griffin argued that Rule 0800-02-21-.14(1)(b)

requires McDoogals to “present all information in its position” showing that Mr. Griffin

is “not entitled to temporary disability or medical benefits.” Mr. Griffin argued that

McDoogals’ failure to provide an affidavit violated this rule and also made it impossible

for him to effectively cross-examine Mr. Bottom. Mr. Griffin cited the Appeals Board’s

decision in Hadzic v. Averitt Express, No. 2014-02-0064, 2015 TN Wrk Comp App Bd

LEXIS 14 (Tenn. Workers’ Comp. App. Bd. May 18, 2015) in support of his argument.

McDoogals, through counsel, argued that the rule does not require the party

opposing the request for temporary benefits to provide affidavits. McDoogals maintains

that if the Division intended the opposing party to provide an affidavit, it would have

stated so in the rule. McDoogals further argues that requiring the opposing party to

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marshal its proof within five (5) days, as suggested by Counsel for Mr. Griffin, when the

moving party has essentially sixty (60) days to prepare its proof, is simply unfair.

For the reasons set forth below, the Court finds that a party opposing a motion for

Expedited Hearing is not required to provide an affidavit before a witness may testify.

Accordingly, the Court overrules Mr. Griffin’s objection and will consider the testimony

of Mr. Bottom in determining this cause.

Rule 0800-02-21-.14(1)(a) specifically provides that “[a]ll motions for expedited

hearing must be accompanied by an affidavit[.]” The rule governing responses by the

opposing party, Tennessee Comprehensive Rules and Regulations 0800-02-21-.14(1)(b),

however, contains no such language. Instead, the rule requires that the opposing party

submit all “information in its possession” within five (5) business days of the motion’s

filing. Id. As any affidavit submitted by the party opposing the rule would not be in its

possession but would have to be created, an affidavit does not fall within the definition of

“information” in the opposing party’s “possession.”

The Court finds McDoogals’ argument about the imbalance of time allotted an

opposing party to marshal its proof persuasive. Conversely, the Court does not find Mr.

Griffin’s argument, that the lack of an affidavit unduly prejudiced his ability to cross-

examine the witness, persuasive. By letter dated May 25, 2015, counsel for McDoogals

notified Mr. Griffin’s counsel that it intended to call Mr. Bottom or Jeff Warzynski, the

wine manager, as a witness. The letter further stated that either Mr. Bottom or Mr.

Warzynski would testify that Mr. Griffin’s actions “constituted willful misconduct and/or

violation of a safety rule.” The Court finds that this communication gave Mr. Griffin

sufficient notice of the “information” McDoogals intended to present to prepare for cross-

examination.

Lastly, the Court is compelled to address Mr. Griffin’s citation of the Hadzic

opinion in support of his position. In Hadzic, the workers’ compensation judge denied

the injured employee’s claim for temporary benefits for reasons based on the judge’s

review of the merits. At the hearing, counsel for the opposing party objected to the

Expedited Hearing proceeding because Mr. Hadzic had not presented an affidavit in

support of his motion for an Expedited Hearing. Hadzic, 2015 TN Wrk Comp. App. Bd.

LEXIS 14, *4. The workers’ compensation judge overruled the objection holding that a

“party is only required to file an affidavit if the moving party intends to rely on the

affidavit[] at the Expedited Hearing,” Id. at *5. Based on the plain and ordinary meaning

of Tennessee Comprehensive Rules and Regulations 0800-02-21-.14(1)(a), the Appeals

Board vacated and remanded the decision. See Id., generally. The Board provided the

following explanation for its decision:

In short, Rule 0800-02-21-.14(1)(a) cannot be reasonably

construed as applying only to those situations where the party

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requesting an expedited hearing does not intend to testify at

the hearing. Giving the terms “all” and “must” their plain and

ordinary meaning, as we must, we are compelled to conclude

that the trial court incorrectly determined the filing of an

affidavit is unnecessary when the party seeking an expedited

hearing testifies at the hearing. Because the trial court's

decision is inconsistent with the plain meaning of the

language of the regulation, it must be set aside as lacking

legal support.

Id. at 12-13. The Court interprets Hadzic as applying only to circumstances where a

party requesting an Expedited Hearing fails to file a supporting affidavit as required by

Rule 0800-02-21-.14(1)(a). Extending Hadzic to require an affidavit by the responding

party, when Rule 0800-02-21-.14(1)(b) does not expressly require it, would essentially

undermine the Appeals Board’s reasoning.

II. The incident arose primarily out of and occurred within the course and scope

of Mr. Griffin’s employment for McDoogals.

Under the Law, an “injury” or “personal injury” by accident is compensable

whenever “the injury is caused by a specific incident, or set of incidents, arising primarily

out of and in the course and scope of employment.” Tenn. Code Ann. § 50-6-102(13)

(2014). “An injury arises primarily out of and in the course and scope of employment

only if it has been shown by a preponderance of the evidence that the employment

contributed more than fifty percent (50%) in causing the injury, considering all causes[.]”

Id. (internal quotations omitted).

McDoogals argues that Mr. Griffin’s accident did not arise out of or occur in the

course and scope of his employment. The Court disagrees.

a. The incident occurred in the scope of employment.

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). The “in 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). “An accidental injury arises out of and is in the course

and scope of employment if it has a rational connection to the work and occurs while the

employee is engaged in the duties of employment.” Id. at 487 (citing Orman v. Williams

Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991)).

McDoogals maintains that Mr. Griffin went outside the scope of his job duties as a

cashier when he left the store to assist his distressed co-employees. McDoogals points to

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the “Good Samaritan Rule” in support of its position. In its “Pre-Hearing Brief,”

McDoogals cited Hall v. Mason Dixon Lines, Inc., 743 S.W.2d 148 (Tenn. 1988), in

support of its argument that Mr. Griffin left the scope of his employment when he left the

store to help his co-employees. The Court finds the Hall case distinguishable.

In Hall, a truck driver stopped his truck on the side of the interstate to assist a girl

trapped in a stalled car. Id. at 149. The driver did not know the girl and she was neither

employed by, or a customer of, the driver’s employer. After helping the girl from the car,

the driver used his flashlight to direct interstate traffic around the girl’s car, which had

blocked one of the lanes. Id. When walking around the stalled car, the driver tripped

over a guardrail and fell twenty (20) feet to the underpass below. Id. The driver suffered

significant injuries and filed for workers’ compensation benefits. Id. The employer

argued that the driver’s injury did not arise out of and in the course and scope of the

employment, and moved to dismiss the claim. Id. The trial court granted the motion. Id.

The driver appealed. The Supreme Court affirmed the trial court and, relying on its

ruling in Lennon Co. v. Ridge, 412 S.W.2d 638 (Tenn. 1967), stated the following:

Defendant was not required by any statute to aid motorists

and defendant had not caused or contributed to the accident

involving the car. The rescued girl was neither an employee

nor a customer of defendant. We cannot say on this record

that the chancellor erred in his determination that defendant

did not benefit from the actions of plaintiff, and therefore,

plaintiff's injuries were not compensable under Lennon.

Hall, 743 S.W.2d at 150.

In Lennon, Charles Ridge was working for Lennon on a construction site owned

by another company, Combustion Engineering Company (Combustion). Lennon, 412

S.W.2d at 639. At that same jobsite, an employee of a plumbing contractor, the Sam

Raider Company (Sam Raider), was also working. Id. In a tragic turn of events, the

walls of a ditch collapsed, killing the Sam Raider employee. Id. at 640. Mr. Ridge ran to

the scene of the accident and suffered injury while trying to rescue the Sam Raider

employee. Id. Mr. Ridge sought workers’ compensation benefits from Lennon and the

trial court awarded benefits. Id. Lennon appealed. The Supreme Court reversed, holding

that “…the injuries sustained by the claimant while undertaking to rescue a third person

under circumstances with which the employer had no connection, financial or otherwise,

did not arise out of his employment.” Id. at 646. In its opinion, the Lennon Court

included the following: “We recognize that a different result might be justified if the

injured claimant were undertaking to rescue a fellow employee, in whose welfare the

employer had a pecuniary rather than a humanitarian interest, and to whom the employer

owed some duty to rescue[.]” Id. at 645.

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The facts in this case are distinguishable from those in Lennon, and its progeny,

Hall, which counsel for McDoogals argues bars Mr. Griffin’s recovery. The key

difference, of course, is that Mr. Griffin sought to render aid to co-employees rather than

strangers. The Court finds that McDoogals had a “pecuniary” interest in the welfare of

Samantha and Ms. Smith, who provided their labors to ensure the successful operation of

the business. Because Mr. Griffin went to aid co-employees, his actions benefited

McDoogals. Accordingly, the Court finds that Mr. Griffin acted in the course and scope

of this employment when he responded to Ms. Smith’s and Samantha’s cries for help and

was subsequently injured by a fleeing shoplifter.

b. The incident arose out of the employment.

“An accidental injury arises out of employment when there is a causal connection

between the working conditions and the resulting injury.” Fritts v. Safety Nat’l Cas.

Corp., 163 S.W.3d 673, 678 (Tenn. 2005) (citing Phillips v. A&H Constr. Co., 134

S.W.3d 145, 150 (Tenn. 2004)). The Tennessee Supreme Court recognized the following

three categories for workplace assaults:

(1) Assaults with an “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

exacerbated by the employment; and,

(3) Assaults resulting from a “neutral force” such as random assaults on

employees by individuals outside the employment relationship.

Woods v. Harry B. Woods Plumbing Co., 967 S.W.2d 768, 771 (Tenn. 1998). Assaults

falling into the first category are compensable. Wait v. Travelers Indem. Co. of Ill., 240

S.W.3d 220, 227 (Tenn. 2007). Assaults falling into the second category are not.

Woods, 967 S.W.2d at 771. The compensability of assaults falling into the third category

“depend[s] on the facts and circumstances of the employment.” Id.

McDoogals argues that Mr. Griffin suffered an injury due to a “neutral assault.”

The Court agrees. McDoogals further argues that the injury Mr. Griffin suffered through

the neutral assault is not compensable. The Court disagrees.

In Jesse v. Savings Prods., 772 S.W.2d 425 (Tenn. 1989), a convenience store

clerk suffered a mental injury through a neutral assault when a customer raped her in the

stockroom of the store. In affirming the award of benefits to the store clerk, the Supreme

Court established the following rule: If indiscriminate exposure to the general public is

one of the conditions under which the work is required to be performed, then the actions

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of those persons on the premises are reasonably considered hazards of the employment.

Id. at 427.

In Beck v. State, 779 S.W.2d 367 (Tenn. 1989), the Tennessee Claims Commission

awarded workers’ compensation benefits to an employee of a driver’s license center who

suffered mental injuries when an unknown assailant grabbed her and made suggestive

comments just outside the doors of the center as she asked him to move his car. In

affirming the award of benefits, the Supreme Court stated the following:

In the case at bar, the assailant had access to Plaintiff because

her workplace was open to the public. While there is no

evidence that the assailant was there for any business reason,

the evidence shows that the assailant attacked Plaintiff after

she, as a duty of her employment, asked the assailant to move

his improperly parked car. Just as no one could ever know the

full intent of the assailant in Jesse, no one will ever know the

full intent of Plaintiff's assailant. But, as in Jesse, Plaintiff's

indiscriminate exposure to the general public was one of the

conditions under which her work was required to be

performed, and the actions of persons on those premises can

be considered a hazard of the employment. We therefore find

a causal relationship existed between Plaintiff's employment

and the August 7, 1987 assault, and that Plaintiff suffered a

compensable accidental injury within the statutory definition

of the Tennessee Workers’ Compensation Laws.

Id. at 371.

The Court finds that, similar to the workers in Beck and Jesse, the work Mr.

Griffin performed for McDoogals indiscriminately exposed him the to the dangers of the

public. Accordingly, the “street risk doctrine” applies to this case. See Padilla v. Twin

City Fire Ins. Co., 324 S.W.3d 507 (Tenn. 2010) (“[T]he purpose of the “street risk”

doctrine is to “provide[ ] the necessary causal connection between the employment and

the injury” when “the employment exposes the employee to the hazards of the street.”)

(citing Hudson v. Thurston Motor Lines, Inc., 583 S.W.2d 597, 602 (Tenn. 1979); see

also Wait v. Travelers Indemnity Co. of Illinois, 240 S.W.3d 220, 227 (Tenn. 2007). As a

liquor store, McDoogals opened its doors to the public to sell goods. Through interacting

with the public, McDoogals employees were exposed to all the dangers posed by those

entering the store. As the Supreme Court determined in Beck, the exposure to the general

public and “their actions on the premises can be considered a hazard of employment.” Id.

The Court finds that Mr. Griffin’s employment with McDougals indiscriminately

exposed him to this risk. Here, a fleeing shoplifter hit Mr. Griffin with his car and he

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suffered serious injury. The testimony at trial showed that people had shoplifted from the

store in the past and at least one employee had been injured in an altercation with a

shoplifter.

At the hearing, Mr. Bottom testified that the area around McDoogals is “very safe”

and stated that no one had been assaulted on McDoogals’ property or hit by a car in the

parking lot in the last fifteen (15) years. The testimony both of McDoogals operating in a

safe neighborhood and of no similar incidents occurring previously does not deem the

first criminal act or other injurious occurrence noncompensable. It is the risk inherent in

the exposure to the public as determined by an examination of the conditions under which

the work is performed that defines the “arising out of component,” not the absence of

prior incidents. Furthermore, because shoplifters had taken items from McDougals

before, violence from shoplifters was a foreseeable hazard.

McDoogals also cites Scott v. Shinn, 105 S.W.2d 103 (Tenn. 1937); Wait v.

Travelers Indemnity Co. of Illinois, 240 S.W.3d 220, 227 (Tenn. 2007); and Padilla v.

Twin City Fire Ins. Co., 324 S.W.3d 507 (Tenn. 2010) in its prehearing brief. These

cases are all distinguishable from the instant matter and provide no support for a finding

of noncompensability.

In Scott, the employee, a delivery driver, died when a robber shot him at a delivery

stop. 105 S.W.2d at 104. The robber did not know the employee, did not take anything

from him or his employer and the robbery did not occur on the employer’s premises. Id.

For those reasons, the Supreme Court held that the robbery had no causal connection to

the employment. Id. at 105. Here, Mr. Griffin suffered injury when someone who had

taken items from McDoogals ran him over while fleeing the McDoogals’ parking lot.

In Wait, an assailant attacked a telecommuting employee while she made lunch in

her kitchen during a break. 240 S.W.3d at 223. The trial court denied compensation and

the Supreme Court affirmed. Though finding the employee to be in the course of

employment, it held that the injury did not arise out of the employment because the facts

did not establish that “the plaintiff's employment exposed her to a street hazard or that

she was singled out for her association with her employer.” Id. at 229. Unlike the

worker in Wait, Mr. Griffin worked at a location that exposed him to dangers posed by

the general public.

Finally, in Padilla, the Supreme Court upheld the finding of noncompensability in

a claim brought by the widow of a deceased employee who had been murdered by an

unknown assailant while at the employer’s place of business. 324 S.W.3d at 509. The

business did not receive walk-in customers and the assailant did not take anything from

the business. Id. Additionally, even though the business operated in a high crime area, a

razor-wire fence surrounded the property and the business also had a burglar alarm. Id.

Based on these facts, the Supreme Court determined that the deceased’s employment did

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not expose that employee to the dangers posed by the general public; thus the street risk

doctrine did not warrant recovery by the widow. Id. at 513-14.

III. McDoogals must resume paying benefits to Mr. Griffin.

The parties stipulated at the hearing that McDoogals would be required to pay

temporary disability and medical benefits to Mr. Griffin in the event the Court found that

the injury arose primarily out and in the course and scope of employment. Having found

that the injury did so arise, the Court finds that Mr. Griffin has shown that he will likely

prevail at a hearing on the merits, and now turns to the computation of benefits owed.

Tennessee law requires an employer to provide “. . . free of charge to the

employee such medical and surgical treatment…made reasonably necessary by accident

as defined in this chapter[.]” Tenn. Code Ann. § 50-6-204(a)(1)(A) (2014). McDoogals

has continued to provide Mr. Griffin medical benefits despite its opposition to the claim.

McDoogals must continue to provide reasonable and necessary treatment.

Concerning disability benefit payments, an employee is entitled to receive

temporary total disability (TTD) benefits pursuant to Tennessee Code Annotated section

50-6-207(1) whenever the employee has suffered a compensable, work-related injury that

has rendered the employee unable to work. See Simpson v. Satterfield, 564 S.W.2d 953

(Tenn. 1978). Entitlement to temporary total disability benefits ends whenever an

employee is able to return to work. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 776

(Tenn. 2000).

Here, the parties stipulated that benefits would be due from the date McDoogals

terminated them, March 11, 2015, until Mr. Griffin reaches maximum medical

improvement or is released to return to work. The period from termination of TTD

benefits to the date of this order is fifteen (15) weeks and six(6) days. Using the

stipulated compensation rate of $289.02, McDoogals must pay Mr. Griffin $4,583.03 in

accrued temporary disability benefits. McDoogals must also continue making temporary

disability payments on a regular schedule pending his attainment of maximum medical

improvement or release to return to work.

IT IS, THEREFORE, ORDERED as follows:

1. McDoogals shall continue provide reasonable and necessary medical care to Mr.

Griffin for injuries related to his September 27, 2014 workplace accident.

2. The amount of temporary disability benefit is $289.02 per week based on

Employee’s average weekly wage of $433.53.

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3. Payment of past due benefits in the amount of $4,583.03 shall be made for the

period from March 11 to July 2, 2015.

4. McDoogals or its workers’ compensation insurance carrier shall continue to pay

Mr. Griffin temporary disability benefits in regular intervals until he is no longer

eligible for those benefits by reaching maximum medical improvement, by

returning to work, or by release without restrictions by the authorized treating

physician. McDoogals’ representative shall immediately notify the Division, Mr.

Griffin and his counsel of its intent to terminate temporary disability benefits, and

cite the basis for the termination, by filing Form C-26 and forwarding a copy to

Mr. Griffin and his counsel.

5. This matter is set for Initial Hearing on August 18, 2015, at 9:00 a.m. (CDT).

6. Unless interlocutory appeal of the Expedited Hearing Order is filed,

compliance with this Order must occur no later than seven (7) business days

from the date of entry of this Order as required by Tennessee Code

Annotated section 50-6-239(d)(3). The Insurer or Self-Insured Employer

must submit confirmation of compliance with this Order to the Division by

email to WCCompliance.Program@tn.gov no later than the seventh (7th)

business day after entry of this Order. Failure to submit the necessary

confirmation within the period of compliance may result in a penalty

assessment for non-compliance.

7. For questions regarding compliance, please contact the Workers’ Compensation

Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)

253-1471 or (615) 532-1309.

ENTERED ON THIS THE 2nd DAY OF JULY, 2015.

_____________________________________

Joshua Davis Baker

Workers' Compensation Judge

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Initial Hearing:

An Initial Hearing has been set with Judge Joshua Davis, Court of Workers’

Compensation Claims. You must call (615) 741-2113 or toll free at (855) 874-0474 to participate

in the Initial Hearing. Please Note: You must call in on the scheduled date/time to

participate. Failure to call in may result in a determination of the issues without your further

participation. All conferences are set using Central Time (CST).

Right to Appeal:

Tennessee Law allows any party who disagrees with this Expedited Hearing Order to

appeal the decision to the Workers’ Compensation Appeals Board. To file a Notice of Appeal,

you must:

1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal.”

2. File the completed form with the Court Clerk within seven (7) business days of the date

the Expedited Hearing Order was entered by the Workers’ Compensation Judge.

3. Serve a copy of the Request for Appeal upon the opposing party.

4. The appealing party is responsible for payment of a filing fee in the amount of

$75.00. Within ten (10) calendar days after the filing of a notice of appeal, payment must

be received by check, money order, or credit card payment. Payments can be made in

person at any Bureau office or by United States mail, hand-delivery, or other delivery

service. In the alternative, the appealing party may file an Affidavit of Indigency, on a

form prescribed by the Bureau, seeking a waiver of the filing fee. The Affidavit of

Indigency may be filed contemporaneously with the Notice of Appeal or must be filed

within ten (10) calendar days thereafter. The Appeals Board will consider the Affidavit

of Indigency and issue an Order granting or denying the request for a waiver of the filing

fee as soon thereafter as is practicable. Failure to timely pay the filing fee or file the

Affidavit of Indigency in accordance with this section shall result in dismissal of the

appeal.

5. The parties, having the responsibility of ensuring a complete record on appeal, may

request from the Court Clerk the audio recording of the hearing for the purpose of having

a transcript prepared by a licensed court reporter and filing it with the Court Clerk within

ten (10) calendar days of the filing of the Expedited Hearing Notice of

Appeal. Alternatively, the parties may file a statement of the evidence within ten (10)

calendar days of the filing of the Expedited Hearing Notice of Appeal. The statement of

the evidence must be approved by the Judge before the record is submitted to the Clerk of

the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory appeal,

the appealing party shall file such position statement with the Court Clerk within three (3)

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business days of the filing of the Expedited Hearing Notice of Appeal, specifying the

issues presented for review and including any argument in support thereof. If the

appellee elects to file a response in opposition to the interlocutory appeal, appellee shall

do so within three (3) business days of the filing of the appellant’s position statement.

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to

the following recipients by the following methods of service on this the 2nd day of July, 2015.

Name Certified First Via Fax Via Email Address

Mail Class Fax Number Email

Mail

Cully Ward x cward@wtdlaw.net

Allen Callison x acallison@eraclides.com

_____________________________________

Penny Patterson-Shrum, Clerk

Tennessee Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov

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