By Jane Salem, staff attorney, Nashville
When an employee exited a building, missed the single step to the ground and fell, is her resulting injury compensable under the Tennessee Workers’ Compensation Law?
The Tennessee Workers’ Compensation Appeals Board examined that question at its most recent oral arguments.
Paul Nicks, the Germantown attorney representing the employer, Facilities Performance Group, characterized it as “one simple, marginal step.” He said employee Kimberly Bullard, part of a professional cleaning crew, descended that same step some 480 times before the date of injury. Nicks pointed to testimony that even Bullard didn’t think her fall was work-related.
The trial court saw it differently. After an expedited hearing, Judge Amber Luttrell of Jackson ruled that Bullard was likely to prevail in proving that her injury arose primarily out of and in the course and scope of employment, the statutory definition of “injury” under the workers’ compensation law. Judge Luttrell reasoned the step was a hazard of her employment and therefore the fall wasn’t “idiopathic,” or personal to Bullard.
FPG appealed. Among its arguments were that the lighting was adequate and nothing was wrong with this particular step; rather, Bullard “admitted she just missed the step.” Further, according to Nicks, almost every building has one step down or a curb close to the building at the parking lot to prevent water from entering the building.
Appeals Board Judge Timothy Conner asked Nicks if, in essence, he was arguing that the employee was negligent. Nicks said no because, by his reading of case law, the question in idiopathic fall cases is whether a hazard of work is “peculiar” or an “additional hazard of work.” By Bullard’s own admission, it wasn’t in this case.
But Bullard’s counsel, John Dunlap of Memphis, said the injury related to work because she cleaned a series of buildings on her shifts. Dunlap said, “If she had not been working and not been required to enter one door and exit the other, she would not have missed the step, she would not have fallen and would not have shattered her elbow.”
Nicks argued that one step differed from two steps or even a flight of steps, for purposes of the idiopathic fall analysis, because one step “is something we all do every day,” and “it’s not something you have to do at work only—it’s something you have to do at your house, at your apartment, at the grocery store . . . not two steps, just one.”
Dunlap disagreed: “I don’t think it matters if it was one step or ten steps; I still think it arises out of the course and scope of employment.”
Deadly heart attack at work, but is it work-related?
The Appeals Board also heard arguments in a case of first impression about medical causation where an employee died from a heart attack at work. In particular, the Board weighed whether summary judgment was proper.
Mattie Mitchell sought workers’ compensation benefits from Bunge North America, alleging that her husband’s heart attack and death resulted from work-related physical exertion, stress and inhalation of grain dust.
The trial court, Judge Deana Seymour of Memphis, denied Bunge’s summary judgment motion, finding genuine issues of material facts existed regarding Mitchell’s theories on medical causation.
Bunge appealed, arguing that, under pre-Reform Act case law, for a heart attack to be compensable, it must either be “precipitated by physical exertion or strain” or result from “stress, tension, or some type of emotional upheaval.” Bunge added that, under the Reform Act, the heart attack also must arise primarily out of and in the course and scope of employment.
Mitchell alleged her husband worked 14 hours, seven days per week, before the day he died. But according to Bunge’s witnesses, that day was “laidback,” the busy season was over, and Mitchell didn’t exert himself physically. Bunge cited its expert’s opinion that the physical exertion should occur “minutes” before the heart attack, not days beforehand, for the heart attack to be work-related.
Bunge’s expert further noted Mitchell’s pre-existing coronary artery disease; that grain dust exposure or chronic work stress bore no relation to the cardiac event; and no identifiable event served as a “trigger.” The expert concluded, “to a reasonable degree of medical certainty, the employment [had] no causal relationship” to his death.
In contrast, one of Mitchell’s experts found that “physical stress, as well as the environmental conditions such as grain dust inhalation over time, significantly contributed to and aggravated” his heart condition and therefore was “a primary contributor to his death.”
Bunge’s lawyer, Newton Anderson of Memphis, said that opinion didn’t “quantify” these factors. “He never says that physical stress was the primary contributor; he says it was a combination,” Anderson said, “He’s lumping it all together. He can’t do that.”
Mitchell’s lawyer, Julian Bolton of Memphis, took a different approach by focusing on the case’s procedural posture. The case wasn’t at the trial phase. Rather, Judge Seymour correctly found the existence of disputed material facts. Bolton said the “learned doctors” created an issue of fact, so summary judgment wasn’t appropriate.
Of the doctors, the employer’s expert didn’t treat Mitchell or review the treater’s records in detail, Bolton said. Bunge’s expert merely reviewed an autopsy report and one or two of the witnesses’ statements. Therefore, per Bolton, the employer’s expert didn’t negate an essential element of Mitchell’s claim, and summary judgment was improper.
By statute, the Appeals Board – Presiding Judge Marshall Davidson of Nashville, Judge David Hensley of Chattanooga and Judge Conner of Knoxville – must release opinions within 20 business days after cases are argued.
—Photos by Kyle Jones, communications coordinator, Tennessee Bureau of Workers’ Compensation