            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Glenda Edwards                               )   Docket No. 2017-06-0526
                                             )
v.                                           )   State File No. 6719-2017
                                             )
Fred’s Pharmacy, et al.                      )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Joshua Davis Baker, Judge                    )

                  Affirmed and Remanded - Filed February 14, 2018

This interlocutory appeal involves an employee, working as an assistant manager of a
pharmacy, who alleged physical and psychological injuries resulting from an altercation
with a shoplifter. The employee claimed the altercation aggravated her pre-existing
psychiatric condition and resulted in injuries to her back, neck, arms, and ribs. The
employer accepted the employee’s physical injuries as compensable but denied benefits
for her alleged mental injury. Following a review of the record without an evidentiary
hearing, the trial court concluded the employee came forward with sufficient evidence to
establish she would likely prevail at trial in establishing a compensable mental injury.
The trial court designated the employee’s psychiatrist as the authorized treating physician
and awarded medical and temporary total disability benefits. The employer has appealed.
We affirm the decision of the trial court and remand the case.

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge David F. Hensley and Judge Timothy W. Conner joined.

James Tucker, Nashville, Tennessee, for the employer-appellant, Fred’s Pharmacy

Andrea Meloff, Nashville, Tennessee, for the employee-appellee, Glenda Edwards

                          Factual and Procedural Background

      Glenda Edwards (“Employee”), an assistant manager employed by Fred’s
Pharmacy (“Employer”), alleged that on January 24, 2017, she suffered physical and
psychological injuries when confronting a shoplifter. She claimed that she was the only
manager on duty when the store was “robbed” at night. According to Employee, she
confronted the thief as he tried to exit the store, and he “slammed her into the wall,”
hurting her back, neck, arms, and ribs. Video surveillance footage, which does not
include audio, appears to show the shoplifter pushing Employee out of the way as he
exited the store. Employee claimed that, in addition to her physical injuries, she was
diagnosed with Post-Traumatic Stress Disorder.

       On the day following the altercation, Employee attended an appointment with her
psychiatrist, Dr. Oleksandr Osipchuk, from whom she had been receiving treatment for
depression, anxiety, and panic attacks prior to the January 24 incident. Dr. Osipchuk’s
January 25, 2017 note reflects Employee complained of increasing symptoms after being
“assaulted by [a] man at [work] who tried to [steal] goods from [the store].” Employee
continued to follow-up with Dr. Osipchuk, who took her off work as a result of the
January 24 incident.

        In response to a letter from Employee’s attorney, Dr. Osipchuk opined that
Employee suffered an aggravation of her pre-existing psychiatric condition and that the
aggravation arose primarily out of the January 24, 2017 incident at work. He further
indicated Employee’s psychiatric symptoms had not returned to her pre-injury baseline.
Employer accepted Employee’s physical injuries as compensable but denied her claim for
the alleged exacerbation of her pre-existing mental condition.

       Without holding a hearing, the trial court found the shoplifter “assaulted
[Employee] and caused her physical injury when she tried to detain him.” The court
concluded that this was an “unusual occurrence in contrast to [Employee’s] daily work”
and, “coupled with her preexisting mental condition,” the incident was capable of
producing a compensable mental injury. The court appointed Dr. Osipchuk as the
authorized treating psychiatrist and ordered Employer to pay temporary total disability
benefits, though the court did not calculate the amount of the award at that time.1

        Employer has appealed, asserting the trial court erred in finding Employee was
likely to prevail at trial in establishing a compensable mental injury.

                                       Standard of Review

       The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2017). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar

1
 After a wage statement was filed, the trial court issued a separate order setting out the amount owed.
That order has not been appealed.

                                                  2
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2017).

                                          Analysis

                                             A.

        Initially, we note that both parties cite Tennessee Code Annotated section § 50-6-
217(a)(3) (2016) (repealed 2017) in support of their respective positions. Section 50-6-
217(a)(3) authorized us to reverse or modify a trial court’s decision if the rights of a party
were prejudiced because the findings of the trial judge were “not supported by evidence
that is both substantial and material in light of the entire record.” However, as we have
previously observed, this code section was repealed effective May 9, 2017. See Baker v.
Electrolux, No. 2017-06-0070, 2017 TN Wrk. Comp. App. Bd. LEXIS 65, at *5-6 (Tenn.
Workers’ Comp. App. Bd. Oct. 20, 2017); Butler v. AAA Cooper Transportation, No.
2016-07-0459, 2017 TN Wrk. Comp. App. Bd. LEXIS 54, at *5-6 (Tenn. Workers’
Comp. App. Bd. Sept. 12, 2017); Glasgow v. 31-W Insulation Co., Inc., No. 2017-05-
0225, 2017 TN Wrk. Comp. App. Bd. LEXIS 51, at *11-12 (Tenn. Workers’ Comp. App.
Bd. Sept. 6, 2017). Consequently, as noted above, the standard we apply in reviewing the
trial court’s decision presumes that the trial judge’s factual findings are correct unless the
preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-239(c)(7).

                                             B.

       Regarding the merits of this appeal, Employer maintains that the trial court erred
in finding Employee was likely to prevail at trial in establishing a compensable
aggravation of her pre-existing mental condition. Employer asserts that Employee’s
altercation with the shoplifter did not give rise to a “sudden or unusual stimulus” as
required by Tennessee Code Annotated section 50-6-102(17) (2017). According to
Employer, managers in a retail setting commonly encounter shoplifters and, while
unpleasant, such encounters are a normal part of a manager’s duties.

      Employee responds that Employer provided no evidence that being assaulted by a
person committing a crime, resulting in psychological and physical injuries, is a “normal


                                              3
job duty of an assistant manager.” According to Employee, “[i]n her years of
employment with Fred’s she did not have any encounter similar to this event.”

        A “mental injury” is defined as “a loss of mental faculties or a mental or
behavioral disorder.” Tenn. Code Ann. § 50-6-102(17). To qualify as compensable, a
mental injury must arise “primarily out of a compensable physical injury or an
identifiable work-related event resulting in a sudden or unusual mental stimulus.” Id.
Cases focusing on the latter category make clear that (1) the injury must stem from an
identifiable stressful, work-related event producing a sudden mental stimulus, and (2) the
event must be unusual compared to the ordinary stress of the worker’s job. Ireton v.
Horizon Mental Health Mgmt., LLC, No. E2015-00296-SC-R3-WC, 2016 Tenn. LEXIS
3, at *28 (Tenn. Workers’ Comp. Panel Jan. 19, 2016).2

       However, not all mental injuries are compensable. For example, a “psychological
or psychiatric response due to the loss of employment or employment opportunities” is
not compensable. Tenn. Code Ann. § 50-6-102(17). Similarly, the aggravation of a pre-
existing mental condition is not compensable “unless it can be shown to a reasonable
degree of medical certainty that the aggravation arose primarily out of and in the course
and scope of employment.” Tenn. Code Ann. § 50-6-102(14)(A). At the same time,
however, “[a]n employer takes an employee with all preexisting conditions and cannot
escape liability when the employee, upon suffering a work-related injury, incurs a
disability far greater than if she had not had a preexisting condition.” Kellerman v. Food
Lion, Inc., 929 S.W.2d 333, 335 (Tenn. 1996); see also Mace v. Express Services, No.
2015-06-0059, 2015 TN Wrk. Comp. App. Bd. LEXIS 19, at *9 (Tenn. Workers’ Comp.
App. Bd. June 19, 2015); Bradshaw v. Jewell Mechanical, LLC, No. 2014-06-0056, 2015
TN Wrk. Comp. App. Bd. LEXIS 16, at *15 (Tenn. Workers’ Comp. App. Bd. June 4,
2015).

       Here, the trial court considered the evidence and found Employee was likely to
prevail at trial in establishing an aggravation of her pre-existing mental condition. We
find nothing in the record establishing the trial court erred in reaching this conclusion.
The only medical opinion in the record is from Employee’s psychiatrist, Dr. Osipchuk,
who opined, within a reasonable degree of medical certainty, that she suffered an
aggravation of her pre-existing psychiatric condition, and that this aggravation arose
primarily out of the January 24, 2017 incident at work. Employer has presented no
medical proof to contradict Dr. Osipchuk’s opinion.

2
  See also Saylor v. Lakeway Trucking, Inc., 181 S.W.3d 314, 320 (Tenn. 2005) (“[T]he stress must be
extraordinary and unusual in comparison to the stress ordinarily experienced by an employee in the same
type [of] duty.”); Goodloe v. State, 36 S.W.3d 62, 66 (Tenn. 2001) (“the stress produced may not be usual
stress . . . in comparison to the stress ordinarily experienced by an employee in the same type [of] duty”);
Houser v. Bi-Lo, 36 S.W.3d 68, 72 (Tenn. 2001) (“The injury must have resulted from an incident
involving mental stress of an unusual or abnormal nature, rather than the day-to-day mental stresses and
tensions to which workers in that field are occasionally subjected.”).

                                                     4
       Employer also contends that the altercation between Employee and the shoplifter
was a “minor interaction” that did not result in a sudden or unusual stimulus capable of
producing a compensable mental injury and that a manager’s duties include confronting
shoplifters. Employer’s argument ignores Dr. Osipchuk’s uncontradicted opinion that
Employee suffered an aggravation of her pre-existing condition caused by the altercation.
Moreover, the record is silent as to whether an assistant manager’s duties typically
involve confronting persons committing criminal acts. Nor did Employer present any
evidence concerning Employee’s duties or how often, if at all, she has had to confront
shoplifters as a normal part of her responsibilities.

       The trial court found that Employee had been “assaulted,” that she was physically
injured, that this was an “unusual occurrence in contrast to [Employee’s] daily work,”
and that, “coupled with her preexisting mental condition,” the incident was capable of
producing a compensable mental injury. We are unable to conclude that the evidence
preponderates otherwise at this stage of the case.

                                             C.

      Before concluding, we note that the parties filed a “Joint Statement of the
Evidence,” which the trial judge approved in a separate order. However, as explained
below, it is unclear how this document could operate as a statement of the evidence.

        The appealing party has the burden of ensuring that an adequate record is prepared
on appeal. Tenn. Comp. R. & Regs. 0800-02-22-.02(01), -.03(1) (2018); see also
Appeals Bd. Prac. & Proc. §§ 3.4 and 3.5. Although there is no requirement that a
transcript or statement of the evidence be filed to properly perfect an appeal, a party who
elects not to submit either a transcript or a statement of the evidence does so at his or her
peril. Gilbert v. United Parcel Serv., No. 2016-06-0832, 2016 TN Wrk. Comp. App. Bd.
LEXIS 38, at *13 (Tenn. Workers’ Comp. App. Bd. Aug. 24, 2016). The reason, simply
put, is that if the appellate court is not provided with a transcript or a statement of the
evidence, the “appellate court cannot know what evidence was presented to the trial
court, and there is no means by which [it] can evaluate the appellant’s assertion that the
evidence did not support the trial court’s decision.” Britt v. Chambers, No. W2006-
00061-COA-R3-CV, 2007 Tenn. App. LEXIS 38, at *8 (Tenn. Ct. App. Jan. 25, 2007).

       The document filed by the parties in this case, while titled a statement of the
evidence, was not a summary or recitation of testimony heard by the trial judge. Instead,
it was a discussion of the procedural history of the case, the arguments of the parties, the
issue presented on appeal, and a recitation of the trial court’s expedited hearing order.
Moreover, as noted above, no testimony was presented to the trial judge. Accordingly,
there was no testimony to recite or summarize in a statement of the evidence in lieu of a
transcript. Thus, the document filed by the parties and approved by the trial judge was
unnecessary, as its contents were readily available from the record.

                                             5
                                       Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court’s decision. Accordingly, the trial court’s decision is affirmed and the case
is remanded.




                                             6
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD


Glenda Edwards                                             )   Docket No.   2017-06-0526
                                                           )
v.                                                         )   State File No. 6719-2017
                                                           )
Fred’s Pharmacy, et al.                                    )


                                     CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 14th day of February, 2018.
 Name                    Certified   First   Class   Via   Fax      Via     Email Address
                         Mail        Mail            Fax   Number   Email

 Andrea Meloff                                                         X    ameloff@ddzlaw.com
 James Tucker                                                          X    jtucker@manierherod.com
 Joshua Davis Baker,                                                   X    Via Electronic Mail
 Judge
 Kenneth M. Switzer,                                                   X    Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                   X    Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov
