                                                                                    FILED
                                                                                  Aug 18, 2020
                                                                                  09:11 AM(CT)
                                                                                   TENNESSEE
                                                                              WORKERS' COMPENSATION
                                                                                 APPEALS BOARD

            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Brett Rosasco                                 )   Docket No.      2019-03-1563A
                                              )
v.                                            )   State File No. 114808-2019
                                              )
West Knoxville Painters, LLC, et al.          )
                                              )
                                              )
Appeal from the Court of Workers’             )
Compensation Claims                           )
Pamela B. Johnson, Judge                      )

                                Affirmed and Remanded

The employee suffered serious injuries when a tree fell on him as he exited a portable toilet
located adjacent to the job site where he was working as a painter. The employer denied
the employee’s request for medical and temporary disability benefits, asserting the
employee’s injuries resulted from a non-compensable “act of God” and did not arise
primarily out of his employment. Following an expedited hearing, the trial court denied
the employee’s request for benefits, determining the employee failed to demonstrate he
was likely to prevail at trial in establishing that his injuries arose primarily out of his
employment. The employee has appealed. We affirm the result reached by the trial court
and remand the case.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Pele I. Godkin joined.

Cary L. Bauer, Knoxville, Tennessee, for the employee-appellant, Brett Rosasco

J. Allen Callison, Nashville, Tennessee, for the employer-appellee, West Knoxville
Painters, LLC

                          Factual and Procedural Background

       Brett Rosasco (“Employee”) was employed as a painter for West Knoxville Painters
(“Employer”). On October 31, 2019, Employee was painting a covered residential porch
in the course and scope of his employment. He described the weather conditions that
morning as “getting really, really windy,” adding that “we took a break at that moment
because it was getting so windy.” Employee walked to a portable toilet located at the edge

                                             1
of the street in front of the lot adjacent to the property where he was working. He described
the portable toilet as being located “maybe like 15 [or] 20 feet from where our vehicles
were parked right beside the house.” In a declaration entered in evidence during an
expedited hearing, he stated that he had 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.” 1 While he
was in the portable toilet, he heard what he described as sounding like something
“breaking” and concluded he needed to get out quickly. He testified he “turned around and
started to walk out the door, and when [he] got about . . . five steps out of the door, a tree
fell on [his] right shoulder and pinned [him] to the ground,” resulting in serious injuries. 2
Employer denied Employee’s claim for workers’ compensation benefits, asserting
Employee’s injuries were the result of an “‘Act of God’ that was unforeseeable and
unpreventable by the Employer.”

        Following Employee’s filing of a petition for benefits, Employee requested that the
court conduct an evidentiary hearing and award him medical and temporary disability
benefits. For purposes of the expedited hearing, the parties agreed that Employee’s injuries
occurred in the course and scope of his employment. The issue presented to the court was
whether Employee’s injuries arose primarily out of the employment. Employee 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, therefore, compensable.

         The trial court determined Employee failed to demonstrate that he is likely to prevail
at trial in establishing that his injuries arose primarily out of his employment. The court
concluded Employee failed to establish a causal connection between his work activities
and the accident causing his injuries, stating Employee’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 trial court’s order further stated:

        Additionally, . . . [Employee] failed to introduce evidence that [Employer]
        significantly limited his ability to make choices, otherwise available to the
        general public, by various factors imposed on [him] by his employment.
        Specifically, [Employee] offered no testimony that [Employer] 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.

1
  Employer disputed this testimony and asserted it neither provided the portable toilet nor instructed
employees to use it. Employer’s representative testified it was common practice to ask the property owner
to use facilities inside the residence.
2
  Employee sustained multiple injuries as a result of the incident. He was transported to the University of
Tennessee Medical Center in Knoxville by ambulance where he later underwent surgery. The extent of his
injuries and the specific medical care he received are not at issue in this appeal.
                                                    2
As a result, the trial court denied Employee’s request for medical and temporary disability
benefits. Employee has appealed.

                                   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) (2019). 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 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 (2019).

                                         Analysis

        Tennessee’s courts have long recognized that the workers’ compensation law does
not render an “employer an insurer against every accidental injury . . . occurring during
employment.” Padilla v. Twin City Fire Ins. Co., 324 S.W.3d 507, 515 (Tenn. 2010)
(citing Scott v. Shinn, 105 S.W.2d 103, 105 (Tenn. 1937)). Likewise, Tennessee’s courts
have consistently rejected a general application of the “positional risk” doctrine in which
an employee need only prove that the work brought him or her within the range of the
danger by requiring his or her presence in the locale when the peril struck, even though any
other person present would have also been injured regardless of his or her employment.
See Bell v. Kelso Oil Co., 597 S.W.2d 731, 734 (Tenn. 1980); Hudson v. Thurston Motor
Lines, Inc., 583 S.W.2d 597, 599-600 (Tenn. 1979); Lennon Co. v. Ridge, 412 S.W.2d 638,
644 (Tenn. 1967). The “positional risk” doctrine has been adopted in some jurisdictions
“based on the principle that employees who are on the job and performing duties for their
employers should be compensated for injuries occurring in the course thereof.” Logsdon
v. ISCO Co., 618 N.W.2d 667, 673 (Neb. 2000).

       Tennessee’s workers’ compensation law defines “injury” to mean “an injury by
accident . . . arising primarily out of and in the course and scope of employment.” Tenn.
Code Ann. § 50-6-102(14) (2019). The phrases “arising primarily out of” and “in the
course and scope of” are related but have important differences. The phrase “in the course
and scope” refers to the time, place, and circumstances of an employee’s injury. See Crew

                                             3
v. First Source Furniture Grp., 259 S.W.3d 656, 664 (Tenn. 2008). An injury that occurs
while an employee is performing his or her job at the time and place assigned by the
employer is one that occurs in the course and scope of the employment. See Orman v.
Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991). Here, whether Employee was
in the course and scope of his employment at the time of his injury was not in dispute at
the expedited hearing. As stated by Employer’s counsel in the expedited hearing, “I’m
willing to stipulate for today that [Employee] was in the course and scope,” after which the
judge noted that “the course [and] scope is not an issue today.”

        What is at issue, however, is whether Employee’s injuries arose primarily out of his
employment. The phrase “arising out of” refers to a causal connection between the
conditions under which the work is required to be performed and the resulting injury. Id.
The event causing the injury must have its origin in a risk connected with the employment.
Wilhelm v. Krogers, 235 S.W.3d 122, 127 (Tenn. 2007). 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. Hill v. St. Paul Fire and Marine Ins. Co., 512 S.W.2d 560, 562
(Tenn. 1974). As a general matter, an injury will not be considered to have arisen out of
the employment unless it “emanate[d] from a peculiar danger or risk inherent to the nature
of the employment. Thus, an injury purely coincidental, or contemporaneous, or collateral,
with the employment . . . will not cause the injury . . . to be considered arising out of the
employment.” Wait v. Travelers Indem. Co., 240 S.W.3d 220, 228 (Tenn. 2007) (citations
omitted).

       In his brief, Employee presents the issue as whether the dead tree falling on him in
a windstorm was an “act of God.” Employee asserts that the tree’s falling on him was not
an “act of God,” and that his injuries arose primarily out of his employment. He rests his
position on the following statements in the trial court’s order addressing what constitutes
an “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 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. . . . 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.”

(Citations omitted.)


                                             4
       Here, the parties agreed that the tree in question was dead. Employee asserts that a
dead tree “can and should be cut-down [sic] so as to prevent it from falling on passers-by.”
According to Employee, “[w]hen a dead tree is blown-over [sic] in a wind storm, that is
not an ‘unpreventable event’ nor is it ‘exceptional, inevitable, and irresistible,’ as it can
and should ‘be prevented or avoided by the exercise of due care or foresight.’” Further,
Employee reasons that had the property owner removed the dead tree, “the wind storm, an
undeniable ‘act of God,’ would have been unable ‘exclusively’ to knock the tree over onto
[Employee].”

       We do not find controlling or persuasive Employee’s argument distinguishing the
forces of nature described as the windstorm from the hazard presented by the dead tree.
Rather, we 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 trial court’s order stated that Employee “offered no testimony that [Employer]
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.” Two exhibits admitted into evidence stated that
Employee “had been told that [he] was supposed to use a Porta Potty located in a cul-de-
sac immediately next to the home where [he] was working.” However, the evidence on
this issue was disputed, as Employer’s representative testified that Employer’s standard
practice when an Employee needed to use the restroom was to “ask[] the customer.”

        Nonetheless, this factual dispute is not determinative of whether there was a causal
connection between Employee’s work and his resulting injuries. Rather, we, as did the
trial court, look to all of the evidence and the circumstances to determine whether the
particular conditions of Employee’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. The trial court concluded the evidence and the circumstances were
insufficient for the court to determine that Employee would likely prevail at trial in
establishing that his injuries arose primarily out of his employment. We must presume
“that the findings and conclusions of the workers’ compensation judge are correct, unless
the preponderance of the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7).

      In short, insufficient evidence was presented to establish that Employee’s
employment exposed him to a greater risk of being injured than what was faced by any
member of the general public under the same circumstances. 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. Accordingly, having carefully considered the evidence and

                                             5
the totality of the circumstances presented, we conclude the trial court did not err in
determining that Employee would not likely prevail at trial in establishing that his injuries
arose primarily out of his employment.

                                           Conclusion

       For the foregoing reasons, we affirm the result reached by the trial court and remand
the case. Costs on appeal are taxed to Employee.




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

Brett Rosasco                                         )      Docket No. 2019-03-1563A
                                                      )
v.                                                    )      State File No. 114808-2019
                                                      )
West Knoxville Painters, LLC, et al.                  )
                                                      )
                                                      )
Appeal from the Court of Workers’                     )
Compensation Claims                                   )
Pamela B. Johnson, Judge                              )

                                   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 18th day
of August, 2020.


 Name                              Certified   First Class   Via   Via     Sent to:
                                   Mail        Mail          Fax   Email
 Cary L. Bauer                                                       X     clbauer@sidgilreath.com
 Allen Callison                                                      X     allen.callison@mgclaw.com
 Pamela B. Johnson, Judge                                            X     Via Electronic Mail
 Kenneth M. Switzer, Chief Judge                                     X     Via Electronic Mail
 Penny Shrum, Clerk, Court of                                        X     penny.patterson-shrum@tn.gov
 Workers’ Compensation Claims




Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov
