By Jane Salem, staff attorney, Nashville

Last week, the Appeals Board affirmed a trial court ruling from an expedited hearing that an employee’s injuries weren’t work-related, when those injuries were from a tree falling on him as he exited a portable toilet next to his job site.

Brett Rosasco was painting a home exterior. He had to use the restroom, so he went to a nearby portable toilet at the edge of the street in front of the nextdoor lot. Rosasco’s sworn declaration said he’d been told he “was supposed to use the Porta Potty located in a cul-de-sac immediately next to the home where he was working.” After leaving the portable toilet, the tree fell on him.

West Knoxville Painting denied the claim, saying his injuries were an “‘Act of God’ that was unforeseeable and unpreventable by the Employer.”

At the expedited hearing, Rosasco asserted that “a dead tree falling is entirely preventable by intervention of human agency and, therefore, cannot constitute an ‘act of God.’” He contended his injuries arose primarily out of his employment and were compensable.

Judge Pamela B. Johnson, Knoxville, disagreed, reasoning that Rosasco’s work “placed no increased risk peculiar to his employment that a dead tree might fall on him than the general public in the same place and at the same time might face.”

The Opinion

The question on appeal was whether Rosasco’s injuries arose primarily out of his employment. The Board noted that the phrase “arising out of” in the statutory definition of “injury” refers to a causal connection between the conditions under which the work is required to be performed and the resulting injury. Also, the event causing the injury must have its origin in a risk connected with the employment.

Per longstanding caselaw, when an employee is injured as a result of an “act of God” or a natural hazard, to satisfy the “arising out of” requirement, the employee must prove that the injury was caused by an increased risk peculiar to the nature of the employment and not a hazard common to the general public at the time and place where it occurred.

Judge David Hensley, Chattanooga, wrote: “[W]e see the dispositive issue as whether there was a causal connection between the conditions under which Employee was required to work and his resulting injuries. Based on the evidence introduced at the expedited hearing, the trial court concluded Employee’s work activities did not present a risk greater than the risk common to the general public at the same time and place. We conclude the evidence does not preponderate against this finding.”

The Board additionally observed that Rosasco didn’t testify that West Knoxville Painting told him where or when to use the restroom, nor did it restrict him from leaving the jobsite to use a different restroom, subjecting him to an increased risk. While a pair of exhibits said he’d been told to “use a Porta Potty located in a cul-de-sac immediately next to the home” where he was working, the employer’s representative testified that standard practice was to “ask the customer.”

This factual dispute wasn’t determinative, according to the Board. Instead, they looked at all the evidence to determine whether the particular conditions of Rosasco’s work on the day in question exposed him to an increased risk “peculiar to his work that was not borne by the general public at the same time and place.”

Judge Hensley concluded, “The evidence indicated that the event occurred on a public street and was not the result of a hazard incident to Employee’s work as a painter.”

The Board remanded the case to the trial court. The Board’s opinion, available here, isn’t appealable at this stage, but Rosasco may introduce additional evidence at a later expedited hearing or the final compensation hearing.

Rosasco is represented by Cary Bauer of Knoxville, while J. Allen Callison represents West Knoxville Painting.

Summer at Radnor Lake, Nashville; photo by the author.