The opinion
FILED
Apr 11, 2023
07:17 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
GREGORY BROCK, ) Docket No. 2021-02-0170
Employee, )
v. ) State File No. 800174-2021
DOLLAR GENERAL, )
CORPORATION, ) Judge Brian K. Addington
Employer. )
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
On March 31, 2023, the Court heard Dollar General’s Motion for Summary
Judgment arguing the lack of genuine issues of material fact as to whether Mr. Brock’s
injuries primarily arose out of and in the course and scope of employment. Because the
undisputed facts affirmatively negate an essential element of Mr. Brock’s claim, and Mr.
Brock was unable to show he is entitled to recover under these facts, the Court grants Dollar
General’s motion and dismisses this claim.
Claim History
Mr. Brock fell to the floor during training at Dollar General’s corporate office on
January 28, 2020. In his affidavit, he stated that he did not fall from tripping or slipping.
Instead, he collapsed to the floor after reading emails from his supervisor. Before the fall,
he alleges he was subjected to multiple, abusive phone conversations with his supervisor
after he requested a transfer to South Carolina. He claimed injuries to his neck, back, left
shoulder, and left knee, as well as PTSD and depression.
Dollar General contends that Mr. Brock’s alleged physical injuries did not primarily
arise out of his employment and that his alleged mental injuries are not compensable under
Tennessee law.
1
Facts
Dollar General’s motion is accompanied by the following verbatim statement of
undisputed facts and Mr. Brock’s responses. 1
a) Employee started as an employee at Employer on June 29, 2019 in the position of
District Manager.
RESPONSE: Admit.
b) Shawn Bartels worked for Employer as Regional Director.
RESPONSE: Admit.
c) Shawn Bartels was Employee’s superior at Employer.
RESPONSE: Admit.
d) On January 28, 2020, Employee was at Employer’s national headquarters in
Goodlettsville, Tennessee where he and other District Managers were receiving
training.
RESPONSE: Admit.
e) Employee exchanged a total of four emails with Shawn Bartels on January 28, 2020
that pertain to Employee incorrectly filling out a form.
RESPONSE: Admit.
f) Employee fell in the cafeteria while pouring himself a cup of coffee on January 28,
2020 at Employer’s national headquarters in Goodlettsville, Tennessee.
RESPONSE: Admit.
g) Employee cannot remember falling to the ground on January 28, 2020 in the
cafeteria at Employer’s national headquarters in Goodlettsville, Tennessee.
RESPONSE: Admit. However, as stated in my Affidavit, “I just recall that I
had just had a plan a week before that I was going to commit suicide. I had it all
mapped out. And when that happened, when I got up and was walking before the
fall, I was thinking that he’s going to harass me forever and there’s no way out but
to die.”
h) Before falling in the cafeteria on January 28, 2020, Employee became mentally-
stressed from reading an email from Shawn Bartels on January 28, 2020 that pertained
to Employee incorrectly filling out a form.
1
Both parties supported their assertions with citations to the record.
2
RESPONSE: Admit. In addition, my head was spinning with the emails, the
phone calls, the verbal abuse, nonstop harassment and I knew it would never end
and fell to the floor.
i) Employee is unaware of any other reason for his January 28, 2020 fall other than
his own mental stress.
RESPONSE: Deny. I know that instantly after reading the email prior to the
fall from Mr. Bartels, triggered my fall. I had already overcome his hostile work
environment, abusive remarks, bullying, and demonstrative actions toward me since
I gave him a seven month notice. Dr. Ricardo Fermo states in my medical record
that any “reasonable person” would come to the same conclusion.
j) Aaron Dalton is a District Manager for Employer overseeing stores in the
Appleton/Green Bay area of Wisconsin and was at Employer’s national headquarters
on January 28, 2020 for training.
RESPONSE: Admit that I have no knowledge of what Aaron Dalton oversees
as a DM.
k) Mr. Dalton and Employee became acquainted before January 28, 2020.
RESPONSE: Admit.
l) Mr. Dalton was in the cafeteria at Employer’s national headquarters on January 28,
2020.
RESPONSE: Admit.
m) Mr. Dalton witnessed Employee fall to the ground in the cafeteria without tripping
or slipping on anything.
RESPONSE: Deny. I have no knowledge of what Mr. Dalton saw or
remembers.
n) Mr. Dalton witnessed Employee fall without coming into contact with an object or
structure in the cafeteria on his way to the ground.
RESPONSE: Deny. I have no knowledge of what Mr. Dalton saw or
remembers.
o) Following his January 28, 2020 fall, Employee filed a workers’ compensation claim
seeking benefits for physical injuries to his neck, back, left shoulder, and left knee, as
well as mental injuries in the form of PTSD and depression.
RESPONSE: Admit. In addition, Dr. Ricardo Fermo and Dr. Thomas Ellison
states to a “Reasonable Degree of Medical Certainty,” that these claims are true
and any reasonable person would come to the same conclusion. And Dr. Thomas
Ellison states in the C-30A a 28 percent impairment rating for my physical injuries.
3
p) While a District Manager at Employer, Employee communicated with Shawn
Bartels multiple times a week.
RESPONSE: Admit.
q) Employee’s symptoms of mental illness began after numerous communications—
including phone calls, text messages, and emails—with Shawn Bartels between
October of 2019 and January 28, 2020.
RESPONSE: Deny. Employee is not a clinician and is not qualified to make
a diagnosis.
r) Employee’s symptoms of mental illness began prior to January 28, 2020.
RESPONSE: Deny. Employee is not a clinician and is not qualified to make
a diagnosis.
s) The source of Employee’s mental distress is not a singular communication or
interaction with Shawn Bartels.
RESPONSE: Deny. Employee is not a medical clinician and is not qualified
to make a diagnosis, however, I have overcome stressful events that Mr. Bartels has
created. The email communications on January 28, 2020 from Mr. Bartels triggered
an emotional event at that moment that mentally was devastating to my mental
health and body.
t) Employee is unaware of the exact date he began experiencing symptoms of mental
illness/distress.
RESPONSE: Deny, however, employee is unaware of the exact date he began
experiencing symptoms of mental illness/distress. However, Mr. Bartels started
using abusive and harassment statements prior to the call ending on November 01,
2019 when we were discussing my transfer to South Carolina.
u) Employee’s pursuit of this workers’ compensation claim has contributed to his
mental distress.
RESPONSE: Admit. In addition, that this process has had a devastating
impact on my family over the last three years. The pain that occurs in my neck also
causes stress remembering the reason that I received this injury on January 28,
2020. In September 2021, Dollar General Senior Human Resource employees . . .
went on my personal LinkedIn account and deleted my connects from my messages
that I sent out from my personal account. I recall being stressed out that Dollar
General Senior Human Resource employees were violating my personal account
and that Dollar General Senior Human Resource employees were continuing the
harassment that is the cause of my injuries and this litigation.
4
Arguments
Dollar General contends that Mr. Brock’s responses and admissions failed to create
genuine issues regarding Mr. Brock’s fall and the gradually occurring nature of his alleged
mental injuries. Based on the above, Dollar General argues it is entitled to summary
judgment because Mr. Brock’s fall was not the result of or exacerbated by an employment
hazard.
Dollar General also submitted an affidavit of District Manager Aaron Dalton stating
that he witnessed Mr. Brock’s fall. He said that he did not see Mr. Brock trip, slip, or
otherwise hit anything when he fell to the floor.
Regarding the mental injury, Dollar General argues that Mr. Brock is asserting a
gradually occurring mental injury, which is not recognized by Tennessee Workers’
Compensation law. 2 Further, his admissions suggest that he suffered from cumulative
stress that caused his fall.
Mr. Brock admits that he has no knowledge of the fall. He admits that cumulative
incidents caused him stress at work, and he relies on his physician’s affidavit 3 to assert that
cumulative mental issues at work caused him to fall that day.
Law and Analysis
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Tenn. R. Civ. P. 56.04.
As the party requesting summary judgment, Dollar General must do one of two
things to prevail: 1) submit affirmative evidence that negates an essential element of the
nonmoving party’s claim, or 2) demonstrate that the nonmoving party’s evidence is
insufficient to establish an essential element of the nonmoving party’s claim. Tenn. Code
Ann. § 20-16-101 (2022); see also Rye v. Women’s Care Ctr. of Memphis, MPLLC, 488
S.W.3d 235, 264 (Tenn.2015). If Dollar General meets this burden, Mr. Brock must then
establish that the record contains specific facts upon which the Court could base a decision
in his favor. Rye, at 265.
2
Typically, this argument could also be filed as a failure to state a claim upon which relief should be granted,
but it can also be considered under Rule 56 since more than the pleadings are considered. Regardless, the
Court considered it as a Rule 56 motion.
3
For the purposes of this motion, when the Court must consider information in a light favorable to the
responding party, the Court determines that Mr. Brock filed an affidavit from Dr. Ferno containing his
opinion on events and diagnosis. Otherwise, the Court would consider the affidavit as only a certification
of medical records, which the Court cannot consider for summary judgment purposes.
5
Injury Arising Primarily out of Employment
Dollar General argues it offered evidence that negates an essential element of Mr.
Brock’s claim—that his injury did not arise primarily out of his employment. It further
argues that Mr. Brock’s evidence is insufficient to create a genuine dispute on the
underlying facts regarding his fall.
Tennessee Code Annotated section 50-6-102(12) states that a workers’
compensation injury must primarily arise out of and in the course and scope of
employment. “Arising out of” means that the event causing the injury must have its origin
in a risk connected with the employment. “An injury must both arise out of as well as be
in the course and scope of employment in order to be compensable under the workers’
compensation statute.” Wilhelm v. Krogers, 235 S.W.3d 122, 124 (Tenn. 2007). Simply
being present at the place of injury because of the employment is not enough. Thornton v.
RCA Serv. Co., 221 S.W.2d 954, 955 (Tenn. 1949).
Dollar General does not dispute that Mr. Brock fell while he was acting within the
course and scope of his employment. Rather, it argues that Mr. Brock’s injury did not arise
out of his employment because the facts show that, although Mr. Brock was attending a
mandatory meeting, his fall was not the result of an employment condition, hazard, or risk.
The Court agrees. The facts show that Mr. Brock simply fell to the ground. He did
not trip, slip, or fall due to a work hazard. Further, when he fell, he simply hit the floor. So,
from a physical injury standpoint, the parties agree that no work hazard caused his physical
injuries.
Therefore, the burden shifts to Mr. Brock to prove otherwise. He did not submit
facts showing his fall was due to a risk or hazard of employment. Thus, Dollar General is
entitled to summary judgment for his physical injuries from any hazard at work. Byrom v.
Randstad N. Am., L.P., No. M2011-00357-WC-R3-WC, 2012 Tenn. LEXIS 152, at *13
(Tenn. Workers’ Comp. Panel Mar. 8, 2012).
Mental Injury
This leaves Mr. Brock’s allegation that cumulative mental stress caused a mental
injury which caused him to pass out and suffer physical injuries.
As to alleged mental injuries, “[t]here must be a specific, climactic event or series
of incidents of an unusual or abnormal nature if the claimant is to be permitted a recovery.
A premium should be placed upon specificity and clarity in identifying that which
constitutes the ‘accident’ and upon demonstrating that such accident is directly attributable
to employment.” Lane v. City of Cookeville, No. M2006-00871-WC-R3-CV, 2007 Tenn.
LEXIS 634, at *8 (Tenn. Workers’ Comp. Panel Aug. 9, 2007).
6
Tennessee Code Annotated section 50-6-102(17) defines a compensable mental
injury as one “arising primarily out of a compensable physical injury or an identifiable
work-related event resulting in a sudden or unusual stimulus[.]” Since Mr. Brock’s injuries
did not arise from a compensable physical injury, then he must show that he suffered a
sudden or unusual stimulus at work.
In addition, stress caused by the employment may not be usual stress but must be
“extraordinary and unusual in comparison to the stress ordinarily experienced by
employees in the same type of duty.” Bledsoe v. City of Dickson-Dep’t of Police, No.
M2005-00919-WC-R3-CV, 2006 Tenn. LEXIS 440, at *16 (Tenn. Workers’ Comp. Panel
May 25, 2006). Further, “the ordinary stress of one’s occupation does not meet this
standard because emotional stress, to some degree, accompanies the performance of any
contract of employment.” Id.
Here, the episode allegedly causing Mr. Brock to fall is not an identifiable event of
unusual or abnormal nature. Mr. Brock testified that he received what he considered
multiple harassing phone calls and emails from his supervisor, but on the day in question
the triggering events were four emails about filling out forms. Further, Dr. Ferno, Mr.
Brock’s own doctor in his affidavit, related the fall to a culmination of work-related
stressors not an extraordinary or unusual event.
For the above reasons, the Court finds Dollar General demonstrated that Mr.
Brock’s evidence is insufficient to prove medical causation for his mental injury claim. Mr.
Brock did not “demonstrate the existence of specific facts in the record which could lead a
rational trier of fact to find in his favor,” Rye, at 265. The Court finds there is no genuine
issue of material fact as to causation of Mr. Brock’s injuries, and grants Dollar General’s
motion.
It is ORDERED as follows:
1. Dollar General’s Motion for Summary Judgment is granted. Mr. Brock’s
claim is dismissed with prejudice to its refiling.
2. The Court taxes the $150.00 filing fee to Dollar General, to be paid to the
Court Clerk under Tennessee Compilation Rules and Regulations 0800-
02-21-.06 (2022) within five business days, and for which execution
might issue if necessary.
3. Dollar General shall file a Statistical Data Form 2 (SD-2) with the Court
Clerk within ten business days of the date this Order becomes final.
4. Unless appealed, this Order shall become final thirty days after entry.
7
ENTERED April 11, 2023.
_________________________________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent on April 11, 2023.
Name Certified Fax Email Service sent to:
Gregory Brock, X X 5484 Buck Hill Dr.
Employee Myrtle Beach, SC 29588
brockcommunications911@gmail.com
Allen Grant, Ben X agrant@eraclides.com
Norris, Employer’s bnorris@eraclides.com
Attorneys
_________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
8
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