Harris, Patricia v. Nashville Center for Rehabilitation and Healing

FILED

Mar 15, 2021

12:07 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Patricia Harris ) Docket No. 2019-06-1008

)

v. ) State File No. 31940-2019

)

Nashville Center for Rehabilitation )

and Healing, et al. )

)

)

Appeal from the Court of Workers’ ) Heard January 28, 2021

Compensation Claims ) via WebEx

Joshua D. Baker, Judge )

Affirmed in Part, Reversed in Part, and Remanded

The employee was injured in the course and scope of her employment when she slipped

and fell while attempting to avoid a large flying insect. The employer denied the claim,

asserting the employee’s injury did not arise primarily out of her employment. Relying on

the employee’s unrefuted testimony that roaches were part of the employee’s working

environment, the trial court determined that roaches were a hazard of the employment and

that the employee’s injuries arose primarily out of her employment. The court ordered the

employer to pay temporary and permanent disability benefits and medical expenses but

denied the employee’s request for attorney’s fees on the unpaid medical expenses. The

employer has appealed the award of benefits, and the employee has appealed the denial of

the request for attorney’s fees on the unpaid medical expenses. We affirm the trial court’s

determination regarding compensability, reverse the trial court’s denial of attorney’s fees

on the unpaid medical expenses, and remand the case.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Judge David F.

Hensley joined. Presiding Judge Timothy W. Conner dissented.

Richard R. Clark, Jr., and Lauren Ray Hall, Nashville, Tennessee, for the employer-

appellant/appellee, Nashville Center for Rehabilitation and Healing

Brett L. Rozell, Lebanon, Tennessee, for the employee-appellant/appellee, Patricia Harris

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Factual and Procedural Background

Patricia Harris (“Employee”) was working as a certified nursing assistant (“CNA”)

for Nashville Center for Rehabilitation and Healing (“Employer”) when she sustained an

injury to her left wrist in the early morning hours of April 25, 2019. Employee was

performing rounds to check on patients when an insect startled her by suddenly flying into

her face. While attempting to deflect and avoid the insect, Employee fell, injuring her left

wrist. She was taken by ambulance to Saint Thomas Midtown Hospital where she was

diagnosed with a closed, nondisplaced distal radius fracture of her left wrist. She was next

seen by a provider at CareNow Urgent Care who confirmed her diagnosis and made a

referral to an orthopedic specialist. On May 3, Employee was evaluated by Dr. Jane Siegel,

an orthopedic surgeon, who placed Employee in a splint and returned her to work with

restrictions.

Employer filed a Notice of Denial on May 8 asserting Employee’s injury did not

arise primarily out of the employment. Following Employer’s denial, Employee continued

to treat with Dr. Siegel under her private insurance and, during her May 17 visit, decided

to undergo surgical repair of her wrist. During this visit, Dr. Siegel restricted Employee

from working until after surgery. On May 21, Dr. Siegel performed an open reduction and

internal fixation of Employee’s fracture.

After filing a petition for benefits, Employee continued to treat with Dr. Siegel until

she was released on November 6. In a questionnaire sent to Dr. Siegel by Employee’s

counsel on September 23, Dr. Siegel agreed that Employee’s left wrist injury resulted from

her fall at work and that her employment contributed more than fifty percent in causing the

injury to her left wrist, considering all causes. Dr. Siegel was deposed on February 27,

2020, and testified that Employee retained a one percent permanent medical impairment as

a result of the workplace injury.

At trial, the parties stipulated that the medical treatment Employee received for her

injury was reasonable and necessary, that the medical expenses incurred for her treatment

were reasonable, that Employee had a one percent medical impairment as a result of her

injury, and the amount of Employee’s weekly compensation rate. The issues to be decided

by the trial court were compensability of Employee’s injury, Employee’s entitlement to

temporary disability benefits, and Employee’s entitlement to attorney’s fees and

discretionary costs.

Employee was the only witness to testify in person at trial. She stated that part of

her job involved “do[ing] rounds every two hours,” and that, at the time of the work

incident, she was performing rounds and checking on patients. She described the incident

resulting in her injury in the following manner:

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[W]hen I got to room 608, I had my head down reading the paper that the

nurse had given me. And something come [sic] flying in my face. And when

I looked up it was a big old cockroach – it looked like a big cockroach, a big

flying bug that got up in my face. And I was trying to get it out of my face

and I slipped back and fell.

When asked about the “bug situation” at Employer’s facility, Employee stated it was

“[r]idiculous” and testified to seeing bugs on the patients’ beds. She said the presence of

bugs had been reported to Employer, explaining that when bugs are seen “you have to

report it.” Employee’s testimony as to the presence of insects inside the facility was

uncontroverted.

The trial court found Employee’s testimony credible with regard to having seen

insects in the facility on previous occasions and noted that Employer “offered no contrary

evidence.” Based upon Employee’s testimony, the court concluded that roaches were part

of the working environment and were a hazard of the employment, explaining

the roach became a hazard like a puddle or other object on the floor when it

entered the building. The bug flew at [Employee] as she walked down the

hallway. She tried to avoid it and fell, breaking her wrist. This was the cause

of her accident, and the Court holds the accident was compensable.

Following the trial, the court ordered Employer to provide reasonable and necessary

medical treatment for Employee’s wrist injury and appointed Dr. Siegel as the authorized

treating physician. The court awarded permanent partial disability benefits based on the

one percent medical impairment rating, accrued temporary disability benefits, and

discretionary costs. It also awarded Employee’s counsel a fee of twenty percent of

Employee’s permanent disability award and twenty percent of Employee’s temporary

disability award. The court denied Employee’s counsel’s request for a fee based on a

percentage of unpaid medical expenses, stating “[t]he law does not provide for an

attorney’s fee unless the employee pays for the treatment out of pocket.” Employer and

Employee have appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the court’s

factual findings are correct unless the preponderance of the evidence is otherwise. See

Tenn. Code Ann. § 50-6-239(c)(7) (2020). When the trial judge has had the opportunity

to observe a witness’s demeanor and to hear in-court testimony, we give considerable

deference to factual findings made by the trial court. Madden v. Holland Grp. Of Tenn.,

Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be

afforded the trial court’s findings based upon documentary evidence.” Goodman v.

Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.

3

Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of

statutes and regulations are questions of law that are reviewed de novo with no presumption

of correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone

N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013).

A trial court’s award of attorney’s fees is discretionary and an appellate court’s

review of such a decision applies an “abuse of discretion” standard of review. Grissom v.

UPS, No. M2016-00127-SC-R3-WC, 2017 Tenn. LEXIS 4, at *7 (Tenn. Workers’ Comp.

Panel Jan. 9, 2017). An abuse of discretion occurs if the trial court “applied incorrect legal

standards, reached an illogical conclusion, based its decision on a clearly erroneous

assessment of the evidence, or employ[ed] reasoning that causes an injustice to the

complaining party.” Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d

346, 358 (Tenn. 2008). We are also mindful of our obligation to construe the workers’

compensation statutes “fairly, impartially, and in accordance with basic principles of

statutory construction” and in a way that does not favor either the employee or the

employer. Tenn. Code Ann. § 50-6-116 (2020).

Analysis

This appeal presents two issues. First, Employer contends the trial court erred in

determining that Employee’s injury arose primarily out of her employment. Second,

Employee contends the trial court erred in denying her attorney a fee based on twenty

percent of the contested medical expenses. We address each issue separately.

Whether Employee’s Injury Arose Primarily out of the Employment

Employer contends the proof was insufficient to establish that insects were a part of

Employee’s work environment and was insufficient to establish that the insects constituted

a hazard incident to the employment. As such, Employer contends Employee’s workplace

injury did not “arise primarily out of” the employment. 1 For the reasons that follow, we

conclude Employee’s injury arose primarily out of her employment.

The requirements that an injury “arise out of” and occur “in the course of”

employment are not synonymous, although both elements exist to ensure a work

connection to the injury for which the employee seeks benefits. Wait v. Travelers Indem.

Co. of Illinois, 240 S.W.3d 225 (Tenn. 2007). The term “in the course of” refers to the

time, place, and circumstances of the injury, while “arising out of” refers to causation.

1

Employer additionally asserts the trial court “based its decision on what amounts to a negligence analysis

in consideration of the causal connection between the employment and the injury.” Employer contends the

insect that flew in Employee’s face “was, at best, the proximate or ‘but for’ cause of the injury” and asserts

“proximate cause is not enough to establish a ‘causal connection.’” We disagree with Employer’s

characterization of the basis of the trial court’s analysis and find no merit in Employer’s insistence that the

trial court erroneously based its decision on a negligence analysis.

4

Cloyd v. Hartco Flooring Co., 274 S.W.3d 643 (Tenn. 2008). Here, it is undisputed that

Employee’s injury occurred in the course and scope of her employment. Accordingly, our

focus turns to whether Employee’s injury arose primarily out of her employment.

An accidental injury arises out of the employment “when there is apparent to the

rational mind, upon consideration of all of the circumstances, a causal connection between

the conditions under which the work is required to be performed and the resulting injury.”

Phillips v. A&H Const. Co., 134 S.W.3d 145, 150 (Tenn. 2004). The phrase “causal

connection” means “cause in the sense the accident had its origin in the hazards to which

the employment exposed the employee while doing his work.” Id. The determination of

whether an injury arose out of a worker’s employment is a question of fact. Id. at 149. 2

Tennessee appellate courts and courts in other jurisdictions have considered various

“risk doctrines” when faced with issues concerning whether a workplace injury arises out

of the employment. Professor Larson categorized these risk doctrines into five categories:

(1) the peculiar-risk doctrine; (2) the increased-risk doctrine; (3) the actual-risk doctrine;

(4) the positional-risk doctrine; and (5) proximate cause. See generally 1 Lex K. Larson,

Larson’s Workers’ Compensation § 3.01-.06 (Matthew Bender, Rev. Ed.). According to

Professor Larson, both “[t]he peculiar-risk test, requiring that the source of harm be in its

nature (as distinguished from its quantity) peculiar to the occupation, and the proximate-

cause test, requiring foreseeability and absence of intervening cause, are now largely

obsolete.” Id. at § 3.syn. As to the remaining three doctrines, Professor Larson concludes

that “[t]he increased-risk test is still the prevalent test in the United States today.” Id. at §

3.03. Further, he concludes that the actual-risk doctrine “is a more defensible rule [than

the peculiar-risk or increased-risk rule] since there is no real statutory basis for insisting

upon a peculiar or increased risk, as long as the employment subjected [the] claimant to

the actual risk that caused the injury.” Id. at § 3.04.

In a 1979 case, the Tennessee Supreme Court noted Professor Larson’s categories

of risk doctrines and stated that it had not adopted the positional-risk doctrine, explaining

that “[w]e think it may be an oversimplification to classify various jurisdictions as

following the peculiar-risk, the positional-risk or the actual risk-test, etc.” Hudson v.

Thurston Motor Lines, Inc., 583 S.W.2d 597, 600 (Tenn. 1979). In Hudson, the employee

drove his tractor-trailer to a Kentucky Fried Chicken and obtained an order to take away

from the establishment. While re-entering the truck’s cab with his meal he was shot by

assailants, permanently paralyzing him from the waist down. The trial court denied

benefits, concluding that, although the employee was in the course of his work at the time

of the assault, his injury did not arise out of the employment. Id. at 598. The Supreme

Court reversed the trial court, stating that “the result we reach in this case is not to be

2

We are also mindful that, in addition to the requirements identified in the cases noted above, Tennessee’s

Workers’ Compensation Law requires proof that the injury arose primarily out of and in the course and

scope of the employment. Tenn. Code Ann. § 50-6-102(14) (emphasis added).

5

construed as an adoption of the positional-risk test, or an abandonment of the peculiar-risk

test.” Id. at 600. The Court observed that “the standards employed by this Court in

deciding whether accidents arise out of employment have led to diverse results.” Id.

After addressing several cases in which employees were injured as a result of

assaults, a fire, or a storm, the Court in Hudson turned to the particular facts leading to the

employee’s assault and concluded “these circumstances provide a rational connection with

the employment,” which the Court determined to be analogous to two of the cases

addressed by the Court. Id. at 603. The Court did not, however, adopt a specific risk

doctrine or a bright-line rule for determining whether an injury arises out of the

employment.

The Tennessee Court of Appeals was faced with a similar issue thirty-one years later

in Coleman v. St. Thomas Hospital, 334 S.W.3d 199 (Tenn. Ct. App. 2010). In Coleman,

the employees of a credit union, housed in a building owned by the defendant hospital,

alleged they suffered various injuries and medical conditions as a result of carbon

monoxide exposure. The employees filed a tort claim against the hospital asserting their

injuries did not arise out of their employment, and, therefore, they were not subject to the

exclusive remedy provisions of the workers’ compensation law. Id. at 201. The defendant

hospital filed a motion for summary judgment that the trial court denied, finding that the

plaintiffs’ tort claims were not barred by the exclusive remedy doctrine. Id. The Court of

Appeals granted the hospital’s request for an extraordinary appeal to address whether the

plaintiffs’ tort claims were barred by the exclusive remedy provisions of the workers’

compensation law. Addressing methods to determine when an injury arises out of the

employment, the Court of Appeals stated the following:

Various judicial “tests” and “doctrines” have emerged for determining when

an injury arises out of and occurs in the course of employment, such as the

“positional doctrine,” the “peculiar hazard doctrine,” the “foreseeability

test,” the “street-risk doctrine,” and others. However, our Supreme Court has

consistently abstained from adopting any particular judicial test, doctrine,

formula, or label that purports to clearly define the line between accidents

and injuries which arise out of and in the course of employment [and] those

which do not[.] The Court has repeatedly rejected the use of artificial labels,

stating that classification and labeling is not the best method of determining

whether an injury is compensable. The Court has found it difficult, perhaps

impossible to compose a formula which clearly defines those accidents

resulting in compensable injuries. As such, in Tennessee, [t]here is no

formula which will clearly define the line between accidents and injuries

which arise out of and in the course of employment and those which do not.

Instead, each case must be decided with respect to its own attendant

circumstances and not by resort to some formula.

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Id. at 203-04 (internal quotations and citations omitted) (emphasis added).

The Coleman Court explained that the terms “arising out of” and “in the course of”

were not synonymous and identified what each phrase encompassed before summarizing

that an injury generally arises out of and is in the course of employment “if it has a rational

connection to the work and occurs while the employee is engaged in the duties of his

employment.” Id. at 204 (citations omitted). Further, the Court stated:

Our Supreme Court has often stated that an 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” in order to be compensable. See, e.g., Foreman [v. Automatic

Sys.], 272 S.W.3d [560,] 572; Anderson, 259 S.W.3d at 696; see also Wait,

240 S.W.3d at 228 (“Generally, for an injury to ‘arise out of’ employment, it

must emanate from a peculiar danger or risk inherent to the nature of the

employment.”). Accordingly, an injury that is purely coincidental,

contemporaneous, or collateral with the employment will not be considered

as arising out of the employment. Foreman, 272 S.W.3d at 572; Anderson,

259 S.W.3d at 696; Wait, 240 S.W.3d at 228.

Id. at 204 (emphasis added); see also Doe v. P.F. Chang’s China Bistro, No. W2016-

01817-COA-R9-CV, 2017 Tenn. App. LEXIS 584, at *12 (Tenn. Ct. App. Aug. 29, 2017).

Thus, Tennessee appellate courts have not established a bright-line rule or specific

risk doctrine that we are required to apply, and there is no statutory basis for requiring a

“peculiar” risk or an “increased” risk. Instead, 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. Phillips, 134 S.W.3d at 150 (Tenn. 2004); see also Saylor v. Lakeway

Trucking, Inc., 181 S.W.3d 314, 318 (Tenn. 2005); Fritts v. Nat’l Cas. Corp., 163 S.W.3d

673, 677 (Tenn. 2005). Further, as noted in Coleman, in addition to a causal connection

that is apparent to the rational mind, the injury “must result from a danger or hazard

peculiar to the work.” Coleman, 334 S.W.3d at 204 (emphasis added). In other words,

rather than applying a specific risk doctrine, in order for the injury to arise primarily out of

employment, the totality of the circumstances must show both (1) a causal connection

between the conditions under which the work is required to be performed and the resulting

injury and (2) that the injury resulted from a danger or hazard peculiar to the work or was

caused by a risk inherent in the nature of the work. 3

3

In his dissent, our colleague states that we rely “in part on a more general statement” of the law as set out

in cases with dates of injury before the passage of the 2013 Workers’ Compensation Reform Act, adding

that “this is not a complete statement of the law in Tennessee for several reasons.” He fails to note our

inclusion of the requirement that an injury “must result from a danger or hazard peculiar to the work” as

Coleman instructs. In addition, Chaney v. Team Technologies, Inc., 568 S.W.3d 576 (Tenn. 2019), cited

by our colleague, likewise recognizes that “[t]o establish that an injury arose out of employment, an

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Here, Employer asserts the proof was not sufficient to establish that insects were

part of Employee’s work environment or presented a hazard of the employment. The trial

court concluded that roaches in Employer’s facility “were part of the working

environment” and consequently, “a hazard of [her] employment.” We must decide whether

the preponderance of the evidence supports these factual determinations. The only

evidence in the record regarding the presence of roaches in the facility comes from

Employee’s testimony. The trial court acknowledged there was no “expert testimony about

a roach infestation” but found Employee’s uncontroverted testimony about the presence of

bugs inside the facility to be credible. Employee testified she often saw roaches while at

work and on patients’ beds. She testified employees were supposed to report seeing insects

to Employer and could file a maintenance request in that regard. 4 Employee claimed she

did not know where the bugs came from but described them as “humongous,” also

testifying that that the bugs “shouldn’t be on the patient’s bed. They shouldn’t be on me.”

Employee described with particularity what caused her to fall, testifying she was

performing rounds and reacted to the insect that suddenly flew in her face, which she said

caused her to fall and injure her wrist. The circumstances of her employment required her

to make rounds through the facility. She testified her duties included performing rounds

every two hours to check on her patients. In the course of performing those duties she

sustained an injury when the insect suddenly flew in her face, resulting in her efforts to

ward off the bug and her fall. Employer offered no proof concerning the presence or

absence of insects inside its facility, and Employee’s testimony was not disputed or

contradicted. Accordingly, we conclude the preponderance of the evidence established

that the presence of insects in Employer’s facility was part of Employee’s work

environment and presented a hazard peculiar to her work sufficient for us to conclude that

Employee’s injuries arose primarily out of her employment.

Attorney’s Fees

Employee’s counsel contends the trial court erred in denying his request for

attorney’s fees related to contested medical expenses. 5 In its order, the court stated “[t]he

law does not provide for an attorney’s fee unless the employee pays for treatment out of

pocket.” Because Employee’s private health insurance paid for the costs of treatment, the

employee has to allege enough facts to show ‘a causal connection between the conditions under which the

work is required to be performed and the resulting injury.’” Id. at 579 (citing Blankenship v. Am. Ordnance

Sys., LLS, 164 S.W.3d 350, 354 (Tenn. 2005)). Respectfully, we submit we are in agreement as to the

applicable law and differ here only in respect to whether the evidence was sufficient to establish that the

injury resulted from a danger or hazard peculiar to the work.

4

Employee did not produce any maintenance requests for roach or insect problems at Employer’s facility.

5

Although post-hearing submittals regarding the attorney’s fee request were filed by Employee’s counsel,

those documents were not part of the record on review.

8

court declined counsel’s request for fees related to disputed medical expenses. In

Employee’s brief on appeal, counsel asserts that “payment of any contested medical

expenses should be considered a recovery or award [and] the trial court’s decision on that

matter should be overturned.”

The Tennessee Supreme Court has held that contested medical expenses are

considered part of the “recovery or award” upon which attorney’s fees may be based. See

Langford v. Liberty Mutual Ins. Co., 854 S.W.2d 100, 102 (Tenn. 1993). We have

previously noted that the 2013 Workers’ Compensation Reform Act modified section 50-

6-226(a), which governs awards of attorney’s fees, but the changes did not vitiate or impair

the precedent established in Langford. Bowlin v. Servall, LLC., No. 2017-07-0224, 2020

TN Wrk. Comp. App. Bd. LEXIS 70, at *11 (Tenn. Workers’ Comp. App. Bd. Nov. 25,

2020). Thus, while the trial court is given discretion as to the award of attorney’s fees,

Employee’s contested medical expenses are to be considered part of Employee’s award for

purposes of attorney’s fees.

A plain reading of section 50-6-226(a)(1) indicates that the attorney’s fees awarded

in this instance would be “paid by the party employing the attorney.” Tenn. Code Ann. §

50-6-226(a)(1). Thus, an award of attorney’s fees based on a percentage of unpaid medical

expenses would be deducted from Employee’s award. We note, however, that during oral

argument counsel for Employee stated he did not want his client “negatively affected” by

an award of attorney’s fees reducing her recovery. Nevertheless, we find the trial court

applied an incorrect legal standard in limiting attorney’s fees to a percentage of the

expenses paid by Employee “out of pocket.”

Conclusion

For the foregoing reasons, we conclude the evidence does not preponderate against

the trial court’s compensability determination, and we affirm the trial court’s order with

respect to the award of temporary and permanent disability benefits, medical benefits, and

discretionary costs. We reverse the trial court’s determination that the recovery of

attorney’s fees for medical expenses is limited to a percentage of medical expenses paid by

Employee “out of pocket.” Accordingly, we remand the case for the trial court to address

the attorney’s fees consistent with this opinion. Costs on appeal are taxed to Employer.

9

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Patricia Harris ) Docket No. 2019-06-1008

)

v. ) State File No. 31940-2019

)

Nashville Center for Rehabilitation and )

Healing, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Joshua D. Baker, Judge )

Dissent

Conner, J., dissenting.

This case requires us to consider the meaning of the statutory phrase “arising

primarily out of and in the course and scope of employment” as that phrase is used in

Tennessee Code Annotated section 50-6-102(14) (2020). Because I conclude the

majority opinion gives this phrase too expansive a meaning under the factual scenario

presented here, I respectfully dissent.

Courts in this state, as well as courts in other jurisdictions, have struggled

historically with defining statutory provisions addressing the work-relatedness of an

injury. According to the oft-cited Professor Larson, “[f]ew groups of statutory words in

the history of law have had to bear the weight of such a mountain of interpretation as has

been heaped upon this slender foundation.” Anderson v. Westfield Grp., 259 SW.3d 690,

695 (Tenn. 2008) (quoting 1 Lex K. Larson, Larson’s Workers’ Compensation § 3.01

(Matthew Bender, Rev. Ed.)). In attempting to explain this phenomenon, Professor

Larson described risk doctrines adopted by various jurisdictions as evolving from the

“peculiar-risk doctrine” to the “increased-risk doctrine,” then the “actual-risk doctrine,”

and finally the “positional-risk doctrine.” Larson at §§ 3.02–3.05. 1 Each step on this

continuum broadens the meaning of the phrase “arising out of employment,” making it

easier for an injured worker to establish the work-relatedness of his or her injury.

Determining which risk doctrine or legal test applies in any given factual scenario has

presented a daunting challenge.

1

Larson suggests that a fifth approach, the “proximate cause” test, is “virtually obsolete.” Id. at § 3.01.

1

The Tennessee Supreme Court has, at times, acknowledged and commented on

Professor Larson’s categorization of risk doctrines. For example, in Hudson v. Thurston

Motor Lines, Inc., 583 S.W.2d 597 (Tenn. 1979), the Court reviewed the risk doctrines

and examined a number of prior cases it described as having reached “diverse results.”

Id. at 600. It noted several cases where the court focused on whether the injury was

caused by a “foreseeable” event or “peculiar” hazard incident to the employment. Id. at

600-601. In adopting the “street risk doctrine,” for example, the Hudson Court concluded

that the injury suffered by the employee due to a random assault was a “foreseeable

hazard incident to the employment of a truck driver of a motor freight line.” Id. at 602.

After Hudson, Tennessee courts recognized various other doctrines to be applied in

specific factual scenarios. See, e.g., Carter v. Volunteer Apparel, Inc., 833 S.W.2d 492,

495 (Tenn. 1992) (recognizing the “personal comfort doctrine” to allow compensation for

injuries occurring while an employee is engaged in reasonably foreseeable “personal

comfort” activities at work); Anderson v. Westfield Grp., 259 S.W.3d 690, 696 (Tenn.

2008) (reaffirming the “direct and natural consequences” rule in circumstances where an

injury subsequent to the work accident was deemed to “flow from” the original injury).

In Wait v. Travelers Ind. Co. of Ill., 240 S.W.3d 220 (Tenn. 2007), the Supreme

Court addressed whether the “street risk” doctrine, adopted by the Court in Hudson,

applied in a situation where the injured worker was randomly assaulted while working in

her home. After reviewing the law governing assault cases, the Court noted that “for an

injury to ‘arise out of’ employment, it must emanate from a peculiar danger or risk

inherent to the nature of the employment.” Id. at 228 (emphasis added). In concluding

the employee’s claim did not fall under the street risk doctrine, the Court reasoned that

“[t]here is nothing in the record to fairly suggest or provide any weight to the assertion

that the plaintiff’s injuries were causally connected with the nature of her employment.”

Id. at 230 (emphasis added). Thus, it was not enough that the employee’s job placed her

in the position to be injured; the Court stressed there must be evidence supporting a

conclusion that the hazard which caused the injury was “connected with the nature of the

employment.” Id. (emphasis added).

As discussed in the majority opinion, in Coleman v. St. Thomas Hospital, 334

S.W.3d 199 (Tenn. Ct. App. 2010), the Tennessee Court of Appeals addressed a tort

claim filed against a hospital that housed a credit union where employees had allegedly

been exposed to carbon monoxide. The employees asserted they were not limited to

workers’ compensation benefits as their exclusive remedy because their injuries did not

“arise out of” their employment. Id. at 201. The trial court agreed with the plaintiffs and

denied the defendant’s motion for summary judgment. Id. On appeal, after discussing

Larson’s “risk doctrines” and concluding that Tennessee had adopted no set formula, the

Court of Appeals considered the arising out of requirement and explained that the

Supreme Court has “often stated” that an employee must prove the work injury resulted

“from a danger or hazard peculiar to the work or be caused by a risk inherent in the

nature of the work in order to be compensable.” Id. at 204 (emphasis added) (internal

2

quotation omitted). The court further noted that “an injury that is purely coincidental,

contemporaneous, or collateral with the employment will not be considered as arising out

of the employment.” Id. See also Chaney v. Team Technologies, Inc., 568 S.W.3d 576,

579 (Tenn. 2019) (“An employee cannot merely assert that her injury occurred at work;

she has to allege that her injury resulted from a ‘danger or hazard peculiar to the work or

be caused by a risk inherent in the nature of the work.’”) (quoting Blankenship v. Am.

Ordnance Sys., LLC, 164 S.W.3d 350, 354 (Tenn. 2005)); Adkins v. Studsvik, Inc., No.

E2014-00444-SC-R3-WC, 2015 Tenn. LEXIS 588, at *17 (Tenn. Workers’ Comp. Panel

July 21, 2015) (“The mere presence of the employee at the place of the injury because of

the employment is not sufficient, 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.”).

Thus, as recently as 2019, and on multiple occasions since 2007, Tennessee courts,

including our Supreme Court, have reiterated what I believe to be the general rule in

Tennessee: in order for an injury to arise primarily out of the employment, the employee

must show a “danger or hazard peculiar to the work,” or the injury must have been

caused by a “risk inherent in the nature of the work.” 2 The majority opinion relies in part

on a more general statement: “An accidental 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.” Phillips v. A&H Const. Co., 134 S.W.3d 145, 150 (Tenn. 2004). I

conclude this is not a complete statement of the law in Tennessee for several reasons.

First, this language is contained in cases with dates of injury before the passage of the

2013 Workers’ Compensation Reform Act. Second, because the Reform Act added the

word “primarily” to the “arising out of” requirement, I conclude the Act tightened, not

loosened, the causation component. 3 Third, after the passage of the Reform Act and as

recently as 2019, the Supreme Court has emphasized the need for evidence of a “danger

or hazard peculiar to the work” or a “risk inherent in the nature of the work.” Chaney,

568 S.W.3d at 579. Thus, a mere “causal connection,” as described in Phillips, is simply

not good enough.

Finally, I note that, under pre-reform law, courts were directed to resolve any

reasonable doubt as to causation in favor of the employee. For example, in Jackson v.

Goodyear Tire & Rubber Co., No. W2007-01131-WC-R3-WC, 2008 Tenn. LEXIS 563

(Tenn. Workers’ Comp. Panel Aug. 26, 2008), the Supreme Court’s Workers’

Compensation Appeals Panel affirmed a finding of compensability in a case where the

2

As noted above, I acknowledge that other doctrines and tests have been developed over the years to

address specific factual scenarios, but I cannot conclude that the facts of this case fit any of those

exceptions to the general rule.

3

For injuries occurring on or after July 1, 2014, the employee has the burden of proving that the

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

Tenn. Code Ann. § 50-6-102(14)(B) (2020).

3

employee alleged an aggravation of his pre-existing back condition after standing from a

chair during his lunch break. Id. at *2. In affirming the award, the Appeals Panel noted

that “[t]he situation presented here is undoubtedly at the outer limit of compensability.”

Id. at *6. The Appeals Panel reasoned that the result was supported by the “overarching

principle” that “any reasonable doubt as to whether an injury ‘arose out of the

employment’ is to be resolved in favor of the employee.” Id. at *7. That “overarching

principle” is no longer the law. As the Appeals Panel explained in Willis v. All Staff, No.

M2016-01143-SC-R3-WC, 2017 Tenn. LEXIS 455, at *11 (Tenn. Workers’ Comp. Panel

Aug. 3, 2017), “Employee’s argument . . . that all reasonable doubts concerning causation

should be construed in [the employee’s] favor is without merit.” Instead, the law now

prohibits a court from construing the law “in a manner favoring either the employee or

the employer.” Id. (quoting Tenn. Code Ann. § 50-6-116).

In the present case, it is undisputed that Employee’s injury occurred after a flying

insect startled her and she moved to avoid the insect, resulting in her fall. I cannot

conclude that the presence of a flying insect inside Employer’s facility was a “danger or

hazard peculiar to the work” or that the injury was caused by a “risk inherent in the

nature of the work.” Although I acknowledge that Employee’s testimony regarding the

presence of insects inside the facility was unrefuted, I fail to see how the presence of

insects was a hazard “peculiar to the work” of a certified nursing assistant or that the

insect presented a “risk inherent in the nature of the work.” 4 Instead, I conclude her

injury was “purely coincidental, contemporaneous, or collateral with the employment”

and thus not compensable. Under these circumstances, I would reverse the trial court’s

decision and dismiss the case. I therefore respectfully dissent.

4

In my view, the majority opinion, in effect, applies Professor Larson’s “actual risk” doctrine, which

allows compensation as long as the employee can prove that an actual hazard in the workplace caused the

injury regardless of whether that hazard was “peculiar to the work” or “inherent in the nature of the

work.” I find no precedent suggesting the Tennessee Supreme Court has adopted or applied the “actual

risk” doctrine in any comparable factual scenario.

4

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Patricia Harris ) Docket No. 2019-06-1008

)

v. ) State File No. 31940-2019

)

Nashville Center for Rehabilitation and )

Healing, et al. )

)

)

Appeal from the Court of Workers’ ) Heard January 28, 2021

Compensation Claims ) via WebEx

Joshua D. Baker, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced

case was sent to the following recipients by the following methods of service on this the 15th day

of March, 2021.

Name Certified First Class Via Via Sent to:

Mail Mail Fax Email

Brett Rozell X brozell@rma-law.com

Clay Rozell crozell@rma-law.com

Richard R. Clark, Jr. X rclark@eraclides.com

Lauren Ray Hall lrayhall@eraclides.com

Joshua D. Baker, Judge X Via Electronic Mail

Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov

Workers’ Compensation Claims

Olivia Yearwood

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-1606

Electronic Mail: WCAppeals.Clerk@tn.gov