Opinion

Brock, Gregory v. Dollar General Corporation

  • 2023 TN WC 27
Court
Tennessee Court of Workers' Compensation Claims
Filed
Apr 11, 2023
Status
Published
On the bench
Brian K. Addington
Cited by
0 cases
Authority
More cited than 23.1%

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:

Mail

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

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

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.