Cunningham v. Shelton Security Service, Inc.

                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE
                           Assigned on Briefs - October 17, 2000


     ROBERT W. CUNNINGHAM, JR, ET AL. v. SHELTON SECURITY
                     SERVICE, INC., ET AL.

                             Appeal by Permission from the
               Supreme Court Special Workers’ Compensation Appeals Panel
                           Chancery Court of Davidson County
                    No. 95-2712-I(II) Hon. Carol McCoy, Chancellor



                    No. M1998-00023-SC-WCM-CV - Filed March 1, 2001



In this workers’ compensation case, the estate of the employee, Robert W. Cunningham, Sr., has
appealed from a chancery court judgment dismissing a claim for death benefits filed against the
employer, Shelton Security Service, Inc. The employee, who worked as a security guard for the
employer, died of heart failure while performing his duties at a store. At the close of the employee’s
proof, the trial court granted the employer’s motion to dismiss on the basis that the emotional stress
experienced by the employee the night of his death was not extraordinary or unusual for a security
guard. The Special Workers’ Compensation Appeals Panel, upon reference for findings of fact and
conclusions of law, found that there was sufficient evidence of causation to warrant a trial and, thus,
reversed the trial court’s dismissal. Thereafter, the employer filed a motion for full Court review of
the Panel’s decision. We granted the motion for review to consider whether the trial court erred in
dismissing the employee’s claim on the basis that his heart failure did not arise out of the
employment because it was not caused by a mental or emotional stimulus of an unusual or abnormal
nature, beyond what is typically encountered by one in his occupation. After carefully examining
the record and considering the relevant authorities, we agree with the Panel and reverse the trial
court’s judgment.

Tenn. Code Ann. § 50-6-225(e); Findings of Fact and Conclusions of Law by the Special
Workers’ Compensation Panel Affirmed; Judgment of the Trial Court Reversed and Case
                                    Remanded

E. RILEY ANDERSON, C.J., delivered the opinion of the court, in which ADOLPHO A. BIRCH, JR.,
JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined. FRANK F. DROWOTA, III, J., not
participating.
Angus Gillis, III, Nashville, Tennessee, for the appellants, Shelton Security Service, Inc. and
Employers Insurance of Wausau.

Terry R. Clayton, Nashville, Tennessee, for the appellees, Robert W. Cunningham, Administrator
of the Estate of Robert W. Cunningham, Sr., and William E. Cunningham, Jr.



                                             OPINION

                                         BACKGROUND

        Robert W. Cunningham, Sr. (“employee”) was employed by Shelton Security Service, Inc.
(“employer”) as a security guard. On May 9, 1991, the employee began working as a guard assigned
to the Little Barn Deli and Market on Clarksville Highway in Nashville. He died of heart failure on
March 5, 1992, while performing his duties at the store.

        At trial, Mishie Lynn Taylor, a night clerk at the store, testified that in the early morning
hours of March 5, 1992, three young men entered the store. The employee, Robert Cunningham, Sr.,
who was performing his duties as a security guard, asked the young men to leave because they were
attempting to shoplift. Taylor stated that the suspected shoplifters “talked back” to the employee and
cursed at him. She described the verbal confrontation inside the store as “very loud” and said that
the employee shouted at the individuals to leave the premises. The employee followed the suspected
shoplifters outside the store. Although Taylor could not hear what was said while the group was
outside, she could tell that they were yelling at each other. The employee produced his billy club,
but did not use it. Taylor testified that the young men threatened to come back and kill the
employee. According to Taylor, the employee had similar verbal confrontations with people at the
store once or twice a week. She said it was common for him to “go out and yell at these people.”


        Taylor recounted that although the employee was upset when he returned to the store, he did
not act overly concerned about the incident. A short time later, however, the employee began to
complain that he did not feel well. He began rubbing his arm. Then, he said that he felt “funny and
weird”; that he “had never felt like that before”; and that he could not be still. Taylor told the
employee to stay where she could observe him at the front of the store, but he went outside. A few
minutes later, Taylor found the employee unconscious in his car. Although Taylor promptly called
an ambulance, the employee died before he reached the hospital.

        Dr. Melvin Lightford, an internist and emergency room physician, testified that the employee
died from “sudden cardiac death.” He explained that sudden cardiac death can be caused by many
things, both stressful and non-stressful, such as arrhythmia, myocardial infarction, a blood clot, and
arteriosclerotic cardiovascular disease. Dr. Lightford admitted that he did not know exactly which
of these possible problems caused the employee’s death. However, Dr. Lightford stated that the


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employee’s death was “related to the recent . . . events within an hour or two of his death.” In
response to a hypothetical question setting out the facts of the employee’s death, Dr. Lightford
testified that there was a “relationship” between the confrontation with the young men and the
employee’s death. Dr. Lightford opined that “the events, as hypothesized to me, did indeed
precipitate what is called sudden cardiac death . . . .”

        The employee’s death certificate stated the cause of death as arteriosclerotic cardiovascular
disease. However, no autopsy was performed. Thus, according to Dr. Lightford, the cause of death
listed on the death certificate was an educated guess made by the medical examiner and not an actual
diagnosis. After the employee’s estate filed suit seeking death benefits, the employer filed a motion
to exhume the employee’s body for the purpose of conducting an autopsy. The trial court granted
the employer’s motion, but on appeal we reversed because the employer failed to make a timely
request for an autopsy after obtaining reasonable notice of its necessity. See Cunningham v. Shelton
Sec. Serv., Inc., 958 S.W.2d 338 (Tenn. 1997).

        At the close of the employee’s proof, the trial court granted the employer’s motion to dismiss
because the emotional stress experienced by the employee the night of his death was “not
extraordinary nor was it unusual in comparison to the stress he ordinarily experienced in that type
of job.” The Special Workers’ Compensation Appeals Panel, upon reference for findings of fact and
conclusions of law pursuant to Tenn. Code Ann. § 50-6-225(e)(3), reversed the trial court’s dismissal
on the basis that there was sufficient evidence of causation to warrant a complete trial. Thereafter,
the employer filed a motion for full Court review of the Panel’s decision. We granted the motion
to consider whether the trial court erred in dismissing the employee’s claim on the basis that his heart
failure did not arise out of the employment because it was not caused by a mental or emotional
stimulus of an unusual or abnormal nature, beyond what is typically encountered by one in his
occupation.

                                                         ANALYSIS

                                                   Standard of Review

        The standard of review in a case such as this is de novo upon the record of the trial court,
accompanied by a presumption of the correctness of the findings, unless the preponderance of the
evidence is otherwise.1 Tenn. Code Ann. § 50-6-225(e)(2) (1999 & Supp. 2000). When issues
regarding credibility of witnesses and the weight to be given their testimony are before a reviewing
court, considerable deference must be accorded the trial court’s factual findings. See Krick v. City


          1
                    The standard o f review is not, as suggeste d by the em ployee, the sa me as that of a d irected verd ict, i.e.,
the trial court’s action can be sustained only if there is no m aterial eviden ce to support a verdict for the plaintiff under
any theory being asserted. See Williams v. Brown, 860 S.W.2d 854, 857 (Tenn. 1993). The motion to dismiss involved
here was made under Tenn. R. Civ. P. 41.02(2) (motion for involuntary dismissal in non-jury action). The motion was
not one for a directed verdict mad e under T enn. R. Civ. P . 50. Althou gh the two mo tions are som ewhat similar in
purpose, there is a fundamental difference between them in that the latter is applicable to a jury trial and the former a
bench trial. City of Columbia v. CFW Construction Co., 557 S.W .2d 734 , 740 (T enn. 197 7).

                                                               -3-
of Lawrenceburg, 945 S.W.2d 709, 712 (Tenn. 1997). However, this Court may draw its own
conclusions about the weight and credibility of expert testimony when the medical proof is presented
by deposition, as it was here, since we are in the same position as the trial judge to evaluate such
testimony. See Krick v. City of Lawrenceburg, 945 S.W.2d at 712; Orman v. Williams Sonoma,
Inc., 803 S.W.2d 672, 676-77 (Tenn. 1991).

                                         Compensability

        In order to be eligible for workers’ compensation benefits, an employee must suffer an
“injury by accident arising out of and in the course of employment which causes either disablement
or death . . . .” Tenn. Code Ann. § 50-6-102(12) (1999). The statutory requirements that the injury
“arise out of” and occur “in the course of” the employment are not synonymous. See Sandlin v.
Gentry, 300 S.W.2d 897, 901 (Tenn. 1957). 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). Put another way, “the injury must have substantially
originated from the ‘time and space’ of work, resulting in an injury directly linked to the work
environment or work-related activities.” Harman v. Moore’s Quality Snack Foods, 815 S.W.2d 519,
527 (Tenn. Ct. App. 1991) (citation omitted). Thus, 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).

        In contrast, “arising out of” employment refers to “cause or origin.” Id. 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.” Fink v. Caudle, 856 S.W.2d at 958. The mere presence of the
employee at the place of injury because of the employment is not sufficient, see Thornton v. RCA
Service Co., 221 S.W.2d 954, 955 (Tenn. 1949), 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. See Travelers Ins. Co.
v. Googe, 397 S.W.2d 368, 371 (Tenn. 1965); Jackson v. Clark & Fay, Inc., 270 S.W.2d 389, 390
(Tenn. 1954); Thornton v. RCA Serv. Co., 221 S.W.2d at 956-57; Harmon v. Moore’s Quality Snack
Foods, 815 S.W.2d at 527. As one court has put it, the “danger must be peculiar to the work . . . .
[A]n injury purely coincidental, or contemporaneous, or collateral, with the employment . . . will not
cause the injury . . . to be considered as arising out of the employment.” Jackson v. Clark & Fay,
Inc., 270 S.W.2d at 390.

       In the present case, there is no dispute that the employee’s death occurred in the course of
his employment. Instead, the dispute focuses on whether the employee’s death arose out of the
employment. The employer argues that the employee’s death did not arise out of the employment
because the confrontation with the suspected shoplifters was not an abnormal or unusual occurrence




                                                 -4-
for a person in the employee’s occupation.2 The employee’s estate responds that the employee’s
death arose out of his employment as that requirement has been applied in this Court’s heart attack
cases. The estate therefore urges us to reverse the trial court’s dismissal of the case.

        We agree with the parties that this case is controlled largely by our decisions addressing the
compensability of heart attacks. The heart attack cases in this jurisdiction can be categorized into
two groups: (1) those that are precipitated by physical exertion or strain, and (2) those resulting from
mental stress, tension, or some type of emotional upheaval. Bacon v. Sevier County, 808 S.W.2d
46, 49 (Tenn. 1991). If the heart attack results from physical exertion or strain, it is unnecessary that
there be extraordinary exertion or unusual physical strain. See id. Thus, it makes no difference that
the employee, prior to the attack, suffered from preexisting heart disease or that the attack was
caused by ordinary physical exertion or the usual physical strain of the employee’s work. Id.

         The rule is different, however, when the heart attack is caused by a mental or emotional
stimulus rather than physical exertion or strain. In such cases, “it is obvious that in order to recover
when there is no physical exertion, but there is emotional stress, worry, shock, or tension, the heart
attack must be immediately precipitated by a specific acute or sudden stressful event[] rather than
generalized employment conditions.” Id. at 52. Thus, if the heart attack is caused by a mental or
emotional stimulus rather than physical exertion or strain, there must be a “climatic event or series
of incidents of an unusual or abnormal nature” if a recovery is to be permitted. Id. Although
“excessive and unexpected mental anxiety, stress, tension or worry attributable to the employment
can cause injury sufficient to justify an award of benefits,” Reeser v. Yellow Freight Sys., Inc., 938
S.W.2d 690, 692 (Tenn. 1997), the ordinary stress of one’s occupation does not because “[e]motional
stress, to some degree, accompanies the performance of any contract of employment.” Allied Chem.
Corp. v. Wells, 578 S.W.2d 369, 373 (Tenn. 1979). In other words, “[n]ormal ups and downs are
part of any employment relationship, and as we have said on many previous occasions, do not justify
finding an ‘accidental injury’ for purposes of worker[s’] compensation law.” Bacon v. Sevier
County, 808 S.W.2d at 53 (citations omitted). Accordingly, the rule is settled in this jurisdiction that
physical or mental injuries caused by worry, anxiety, or emotional stress of a general nature or
ordinary stress associated with the worker’s occupation are not compensable. The injury must have
resulted from an incident of abnormal and unusual stressful proportions, rather than the day-to-day
mental stresses and tensions which workers in that field are occasionally subjected.

        With these principles in mind, we review the record in the present case to determine whether
the employee’s death arose out of his employment. We note first that there was no physical exertion
or strain involved in precipitating his heart failure. Instead, the mental stress or tension associated
with confronting the suspected shoplifters caused the heart failure, at least according to some of the
medical proof. Applying the law as just described, the trial court concluded the employee’s death
was not compensable because he was not confronted with circumstances of an unusual or abnormal


         2
                  The emplo yer also argues that the e mployee’s d eath is not compensable because there was no proof
of the cause of death and no proof that the death was related to the events of March 5, 1992. The employer also raises
a number of evidentiary r elated issues. W e have care fully considere d these issues a nd find them to be withou t merit.

                                                           -5-
nature given his work as a security guard. As the record reflects, verbal confrontations occurred at
least once a week at the store, and it was common for the employee to “go out and yell at these
people.” However, the record also reflects that the individuals chased off by the employee
threatened to return and kill him. We believe that this additional circumstance makes a difference
and is sufficient to warrant the conclusion that the employee’s death did not result from generalized
employment conditions, but from something beyond the norm, even for a security guard.
Accordingly, we find that the evidence preponderates against the trial court’s finding that the
employee’s death did not arise out of his employment.

         The reason, simply put, is that the employee has met the burden of establishing that his heart
failure was caused by a mental or emotional stimulus of an unusual or abnormal nature, beyond what
is typically encountered by one in the employee’s position. We thus reiterate the rule again in this
case that if the cause or stimulus of the heart attack is mental or emotional in nature, such as stress,
fright, tension, shock, anxiety, or worry, there must be a specific, climatic event or series of incidents
of an unusual or abnormal nature if the claimant is to be permitted a recovery, but no recovery is
permitted for the ordinary mental stresses and tensions of one’s occupation because “[e]motional
stress, to some degree, accompanies the performance of any contract of employment.” Allied Chem.
Corp. v. Wells, 578 S.W.2d at 373. If the rule were otherwise, workers’ compensation coverage
would become as broad as general health and accident insurance, which it is not. See Jose v.
Equifax, Inc., 556 S.W.2d 82, 84 (Tenn. 1977).

          We conclude that the evidence preponderates against the trial court’s finding that the
employee’s death did not arise out of his employment. Accordingly, we agree with the Panel that
the trial court erred in dismissing the case and that the case must be remanded for further
proceedings. We stress in this regard that a dismissal at the close of the plaintiff’s proof is rarely
appropriate in a workers’ compensation case inasmuch as a reversal of the trial court’s ruling results
in additional proceedings and undue delay. The trial court should instead hear the entire case and
make appropriate findings of fact, and alternative findings when necessary, for appellate review.


                                           CONCLUSION

        In view of the foregoing discussion, we hold that the evidence preponderates against the trial
court’s finding that the employee’s death did not arise out of his employment. Therefore, the trial
court’s dismissal of the case is reversed and the case remanded for further proceedings consistent
with this opinion. Costs of this appeal are taxed to the appellants, Shelton Security Services, Inc.
and Employers Insurance of Wausau, and their surety, for which execution may issue if necessary.


                                                         ___________________________________
                                                         RILEY ANDERSON, CHIEF JUSTICE




                                                   -6-
                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE


    ROBERT W. CUNNINGHAM, JR, ET AL. v. SHELTON SECURITY
                    SERVICE, INC., ET AL.


                                 Chancery Court of Davidson County
                                         No. 95-2712-I(II)



                     No. M1998-00023-SC-WCM-CV - Filed May 2, 2001



                                             ORDER

      Shelton Security Service, Inc., et al., through counsel, has filed a petition for rehearing
pursuant to Tenn. R. App. P. 39. After due consideration, it is ORDERED that the petition for
rehearing is DENIED.


                                                             PER CURIAM


Drowota, J., not participating