                                                                                               FILED
                                                                                             Jun 03, 2020
                                                                                            01:13 PM(CT)
                                                                                         TENNESSEE COURT OF
                                                                                        WORKERS' COMPENSATION
                                                                                               CLAIMS




             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
            IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                             AT KNOXVILLE

    BRETT ROSASCO,                                  )    Docket No. 2019-03-1563A
             Employee,                              )
    v.                                              )
    WEST KNOXVILLE PAINTERS,                        )
    LLC,                                            )    State File No. 114808-2019
             Employer,                              )
    and                                             )
    STATE FARM FIRE AND                             )
    CASUALTY COMPANY,                               )    Judge Pamela B. Johnson
             Carrier.                               )


                EXPEDITED HEARING ORDER DENYING BENEFITS


       Brett Rosasco, working as a painter for West Knoxville Painters (WKP), exited a
portable restroom when he was struck by a falling tree. He sought medical and temporary
disability benefits for the resulting injuries, which WKP denied, arguing the incident was
caused by an act of God. After an Expedited Hearing on May 13, 2020, the Court holds
Mr. Rosasco is not entitled to the requested benefits at this time.

                                          History of Claim

       On October 31, 2019, Mr. Rosasco, while painting the exterior of a house, needed
to use the restroom. He used a portable restroom located in the street near the property. 1
While inside the portable restroom, he heard a loud crack and rushed out of the restroom,
where a falling dead tree struck his right shoulder and pinned him to the ground.2


1
   WKP did not procure the portable restroom for the jobsite. Neither party knew how it came to be in the
street, but both stated that work was being performed in the area by others.
2
  Mr. Rosasco described the weather as windy and getting windier at the time he took the restroom break.
WKP introduced a Site Specific Weather Analysis, which stated that thunderstorms produced wind gusts
as high as sixty-nine miles per hour at the site of the incident on October 31, 2019.

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       After his coworkers lifted the tree off him, he was taken to the emergency room. He
required hospitalization and ultimately underwent a multi-level fusion surgery to repair
fractures in his spine. He was discharged from the hospital on November 3 with
instructions of no return to work until released by the treating surgeon, Dr. William Oros.

        After his hospitalization, Mr. Rosasco continued to treat with Dr. Oros, who
restricted him from lifting greater than ten pounds on November 26 and increased it to no
lifting greater than twenty-five pounds on January 29, 2020. On that date, Dr. Oros further
noted that Mr. Rosasco could wean himself out of the brace. Mr. Rosasco returned to work
for another employer in February.

       WKP denied medical or temporary benefits for Mr. Rosasco’s injury on grounds
that he was not within the course and scope of my employment when the injury occurred
and because the incident was an “act of God.”

       Mr. Rosasco testified that he was unaware of the dead tree or its proximity to the
portable restroom. WKP’s representative, Greg Spradling, similarly testified that he did
not know about the dead tree or other dead trees near the jobsite.

                       Findings of Fact and Conclusions of Law

       At an Expedited Hearing, Mr. Rosasco must demonstrate that he is likely to prevail
at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2019); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar.
27, 2015).

       To recover benefits, Mr. Rosasco must show that his injury arose primarily out of
and in the course and scope of his employment. Tenn. Code Ann. § 50-6-102(14).
“‘[A]rise out of’ and ‘in the course of the employment’ are not synonymous ‘although both
elements exist to ensure a work connection to the injury for which the employee seeks
benefits.’” Johnson v. Wal-Mart Assoc., Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 18,
at *10-12 (July 2, 2015) (internal citations omitted). “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.” Id. “An injury arises out of employment when there is a causal
connection between the conditions under which the work is required to be performed and
the resulting injury.” Id.

      WKP argued Mr. Rosasco’s injury did not arise out of or occur in the course and
scope of his employment because the wind causing the dead tree to fall was a non-
compensable act of God.

       An act of God is “[a]n overwhelming, unpreventable event caused exclusively by
forces of nature, such as an earthquake, flood, or tornado. The definition has been

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statutorily broadened to include all natural phenomena that are exceptional, inevitable, and
irresistible, the effects of which could not be prevented or avoided by the exercise of due
care or foresight.” McCaffery v. Cardinal Logistics, 2015 TN Wrk Comp App Bd LEXIS
50, at *11-12 (Dec. 10, 2015) (internal citations omitted). “Any misadventure or casualty
is said to be caused by the act of God when it appears by the direct, immediate, and
exclusive operation of the forces of nature, uncontrolled or uninfluenced by the power of
man and without human intervention.” Id.

        The Tennessee Supreme Court has considered the act of God defense in several
workers’ compensation cases. In Jackson v. Clark and Fay, Inc., 270 S.W.2d 389, 392
(Tenn. 1954), the employee was killed by a storm as he was being transported along a
public highway in the employer’s truck from the employer’s work site to sleeping quarters
furnished by the employer. The trial court awarded benefits, finding that the employee was
at his place of employment when he was killed and engaged in activity expected of him by
his employer. The Supreme Court reversed the trial court, concluding:

       This storm was not a danger peculiar to the work in which Jackson was
       engaged. It was a danger common to the general public at the time and place
       where it occurred. It was not a hazard incident to his employment. It did not
       have its origin in a risk connected with that employment. It did not flow from
       that source as a rational consequence. The employer by the exercise of
       reasonable foresight could not have reasonably contemplated this hazard as
       a result of transporting his employees from their place of employment to their
       night quarters.

Id.

       Similarly, in Hill v. St. Paul Fire & Marine Ins. Co., 512 S.W.2d 560 (Tenn. 1974),
an employee, who worked as a night watchman, was crushed to death when the building
where he was working collapsed during a tornado. The employer contended that the
employee’s death did not arise out of or in the course of his employment, and that the
proximate cause of his death was the tornado. The surviving spouse claimed that the
building collapsed because it was poorly constructed and that tornadoes were a foreseeable
cause of injury in the locality. The Tennessee Supreme Court affirmed the trial court’s
dismissal of the suit, holding:

       The tornado was not a hazard or risk peculiar to the work of Hill as a night
       watchman. It was a danger common to the general public at the time and
       place where it occurred. It was not a hazard incident to Hill’s employment.
       It did not flow from his work as a rational consequence. His employer by
       the exercise of reasonable foresight could not have reasonably anticipated a
       tornado as a result of Hill’s employment.


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Id. at 562.

        However, an employee may recover benefits for an injury caused by an act of God
if, “by reason of employment, [the employee] is subjected to a hazard from such act of God
not common to the general public, but peculiar to the nature of the employment and to the
condition under which that employment is required to be performed.” Jackson, 270 S.W.2d
at 392.

        In Dixon v. Travelers Indemn Co., 336 S.W.3d 532 (Tenn. 2011), an employee was
injured when a tornado struck the tractor-trailer rig he was driving for his employer. The
carrier argued the injuries did not arise out of the employment. The trial court disagreed,
finding that the size, shape, and maneuverability of the truck and the restrictions on the
operation of it imposed by employer subjected employee to an increased risk during high
winds. The Tennessee Supreme Court agreed, concluding that the employee was
significantly hampered in his ability to make choices, otherwise available to the general
public, by various factors imposed upon him by his employment, including the size of the
vehicle he drove, the route he was required to take, and the strict time schedule he was
required to adhere to.

       Of importance, the Supreme Court in Dixon offered guidance in determining
whether an injury claimed to be an act of God satisfies the “arising out of” requirement.
Specifically, an employee must prove that the injury was caused by an increased risk
peculiar to the nature of the employment and not a danger common to the general public at
the time and place where it occurred. Id. at 537. More than mere presence at the place of
injury as a result of the employment relationship is required for an injury to arise out of the
employment relationship. Stated another way, there must be a causal connection between
the conditions under which the work is required to be performed and the resulting injury.
Namely, the injury must emanate from a peculiar danger or risk inherent to the nature of
the employment” and one purely coincidental, contemporaneous, or collateral with the
employment does not arise out of it. Id. (Internal citations omitted).

        Here, no one disputed that Mr. Rosasco was in the area where the dead tree fell due
to his employment. However, he must come forward with more than his mere presence at
the place of injury to satisfy the “arising out of” requirement.

       Namely, as Dixon instructs, he must show a causal connection between the work he
performed and the resulting injury. The Court cannot find that he did. Mr. Rosasco’s work
as an exterior painter 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.
In other words, the general public at the same time and in the same place bore the same
risk as he did from the risk of a falling dead tree striking them. Moreover, no evidence
suggested that WKP, by the exercise of reasonable foresight, could not have reasonably
anticipated a dead tree would fall on its employee during high winds.

                                              4
       Additionally, unlike in Dixon, Mr. Rosasco failed to introduce evidence that WKP
significantly limited his ability to make choices, otherwise available to the general public,
by various factors imposed on his by his employment. Specifically, Mr. Rosasco offered
no testimony that WKP directed him where to use the restroom, when to use the restroom,
or otherwise prohibited his ability to leave the jobsite to use the restroom at an alternate
restroom, thereby subjecting him to an increased risk.

        Based on the evidence, the Court holds Mr. Rosasco failed to demonstrate that he is
likely to prevail at a hearing on the merits that his injury arose out of his employment and
denies his request for benefits at this time. Given the above finding, it is unnecessary to
address whether Mr. Rosasco’s injury occurred in the course and scope of his employment.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Rosasco’s request for benefits is denied at this time.

   2. This case is set for a Scheduling Hearing on August 13, 2020, at 9:30 a.m. Eastern
      Time. The parties must call 855-543-5041 toll-free to participate. Failure to appear
      by telephone may result in a determination of the issues without the party’s
      participation.

ENTERED June 3, 2020.



                                          _____________________________________
                                          JUDGE PAMELA B. JOHNSON
                                          Court of Workers’ Compensation Claims


                                       APPENDIX

Technical Record:
      1. Petition for Benefit Determination
      2. Dispute Certification Notice
      3. Employee’s Request for Expedited Hearing
      4. Employer’s Witness List
      5. Employer’s Notice of Filing Medical Records
      6. Employer’s Exhibit List
      7. Employer’s Pre-Trial Brief
      8. Employee’s Pre-Trial Brief


                                             5
Exhibits:
      1.    Brett Rosasco’s Rule 72 Declaration
      2.    Meteorologist James Bria’s Weather Analysis Report
      3.    Employee’s Written Discovery Responses
      4.    Collective Medical Records


                            CERTIFICATE OF SERVICE

      I certify that a copy of the Order was sent as indicated on June 3, 2020.

             Name               Certified         Email   Service sent to:
                                 Mail
  Cary L. Bauer,                                   X      clbauer@sidgilreath.com
  Employee’s Attorney

  Allen Callison,                                  X      allen.callison@mgclaw.com
  Employer’s Attorney




                                            _____________________________________
                                            PENNY SHRUM, Court Clerk
                                            WC.CourtClerk@tn.gov




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