                                                                                FILED
                                                                              Feb 21, 2019
                                                                             07:15 AM(CT)
                                                                           TENNESSEE COURT OF
                                                                          WORKERS' COMPENSATION
                                                                                 CLAIMS




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

DONRIEL CUNNINGHAM,                        ) Docket No. 2018-05-0484
(deceased)                                 )
           Employee,                       )
v.                                         )
                                           )
SOUTHERN STEEL SUPPLY CO.,                 ) State File No. 5192247-2017
INC.,                                      )
        Employer,                          )
And                                        )
                                           )
PHOENIX INS. CO.,                          ) Judge Dale Tipps
         Carrier.                          )


 COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT



        This matter came before the Court on Southern Steel’s Motion for Summary
Judgment. The central legal issue is whether Southern Steel is entitled to summary
judgment on grounds that Mr. Cunningham’s estate (Estate) failed to present evidence
that his death arose primarily out and in the course and scope of his employment, an
essential element of his claim. For the reasons below, the Court holds Southern Steel is
entitled to summary judgment.
                                 Procedural History
       Mr. Cunningham died from gunshot wounds suffered during his shift as a crane
operator at Southern Steel on November 27, 2017. Southern Steel denied that the
incident was work-related, and Estate filed a Petition for Benefit Determination.
       Southern Steel filed this Motion for Summary Judgment, Estate filed a response,
and the Court heard arguments on February 7, 2019.




                                           1
                                                  Facts
        Southern Steel filed a statement of ninety-four undisputed material facts with
citations to the record in compliance with Tennessee Rules of Civil Procedure 56.03.
Estate’s response admitted many of the facts. These undisputed facts are summarized as
follows:
    1. Mr. Cunningham worked as a crane operator, loading and unloading trucks as they
       came into his bay inside the Southern Steel building.
    2. At the time he was shot, a truck was in Mr. Cunningham’s bay.
    3. After hearing shots, some of Mr. Cunningham’s co-workers went outside and
       found him lying face down in the street.
    4. Memphis Police Department has not reported any leads in identifying the shooter
       or made any arrests.
    5. Nobody knows why Mr. Cunningham was shot.
    6. None of the people deposed in this case knows why Mr. Cunningham was outside
       the building when he was shot.1
       Based on these facts, Southern Steel argued the Court should grant summary
judgment because it affirmatively negated the essential element of Estate’s claim – that
Mr. Cunningham’s injury arose primarily out of his employment – and that the facts are
insufficient for Estate to prove this element.
       Estate countered that summary judgment is inappropriate because it has
demonstrated the existence of facts showing a genuine issue for trial. The facts Estate
characterizes as disputed are related to two primary issues:
    1. Whether Southern Steel was located in a high-crime area.
    2. Whether Southern Steel forbade employees from taking a break when they had a
       truck in their bay to be loaded.
       Estate argued that, because Southern Steel had no policy against Mr. Cunningham
taking a break when he did, he was acting in the course and scope of his employment at
the time of the shooting. It then contended that this was either a “neutral force” assault in
an inherently dangerous area, which made it compensable under the street-risk doctrine,
or “may well have stemmed from an altercation” between Mr. Cunningham and a co-
worker.




1
   Estate answered “Disputed” to Statement of Undisputed Facts No. 33, which said that Mr.
Cunningham’s mother had no knowledge as to why he was shot. However, the reason given for the
response and the citation to the record are not actually responsive to the statement. Instead, they seem to
relate to the question of where the shooting took place. In fact, Ms. Cunningham admitted on page 34 of
her deposition that she had no idea why her son was shot.

                                                    2
                                        Law and Analysis
        Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04 (2018).

       As the moving party, Southern Steel must do one of two things to prevail on its
motion: (1) submit affirmative evidence that negates an essential element of the
nonmoving party’s claim, or (2) demonstrate that the nonmoving party’s evidence is
insufficient to establish an essential element of the nonmoving party’s claim. Tenn. Code
Ann. § 20-16-101 (2018); see also Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477
S.W.3d 235, 264 (Tenn. 2015). If Southern Steel is successful in meeting this burden, the
nonmoving party – Estate – must then establish that the record contains specific facts
upon which the Court could base a decision in its favor. Rye, at 265.
       The essential element at issue in this case is that Estate must demonstrate that Mr.
Cunningham suffered “an injury by accident . . . arising primarily out of and in the course
and scope of employment, that causes death, disablement or the need for medical
treatment of the employee.” Tenn. Code Ann. § 50-6-102(14). The Workers’
Compensation Appeals Board noted that these requirements are not synonymous. An
injury occurs in the course of employment if it takes place while the employee was
performing a duty he was employed to perform. Thus, the course of employment
requirement focuses on the time, place, and circumstances of the injury. By contrast,
arising out of employment refers to causation. 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. Put another way, an injury arises out of
employment when it “has a rational, causal connection to the work.” See Johnson v. Wal-
Mart Associates, Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 18, at *11-12 (July 2,
2015).
      At first blush, it might appear Mr. Cunningham was not in the course and scope of
his work at the time of the shooting because he was not on Southern Steel’s property and
not performing his duties as a crane operator.2 However, Tennessee recognizes the
personal comfort doctrine, which generally brings injuries suffered by employees while
on approved or authorized breaks within the umbrella of compensable injuries. Activities
that minister to the personal comfort of workers, such as eating, drinking, smoking,
seeking toilet facilities, fresh air, coolness or warmth, are incidental to the employment.
Accordingly, injuries that occur during these activities are deemed to have arisen out of
2
  Estate apparently relies on its response to Statement of Undisputed Facts No. 36 to dispute where the
shooting took place. Its response cited testimony from Ms. Cunningham that she saw someone cleaning
blood off the sidewalk the day after the shooting. However, she later admitted on page 59 of her
deposition that she had no way of knowing where her son was shot. Other witnesses were clear that Mr.
Cunningham’s body was found in the street, not on the sidewalk.

                                                  3
the employment.” Jacobs v. Bridgestone Americas Tire Operations, LLC, 2018 TN Wrk.
Comp. App. Bd. LEXIS 4, at *11-15 (Feb. 7, 2018).

       Therefore, one issue in this case is whether the personal comfort exception applies.
The depositions and affidavits contain conflicting statements as to whether Southern
Steel had a policy regarding when employees could take breaks (especially as to whether
Mr. Cunningham could take a break while a truck was in his bay waiting to be loaded). If
this dispute were material, the question of whether the break was authorized might be
sufficient to preclude summary judgment.

       However, the Court finds that this argument ignores the threshold question –
whether Mr. Cunningham was on a break that would qualify for the personal comfort
exception. Not every break is covered by this exception. In some cases, the extent of the
departure is so great that an intent to temporarily abandon the job may be inferred.
Carter v. Volunteer Apparel, Inc., 833 S.W.2d 492, 495 (Tenn. 1992). It is undisputed
that nobody knows why Mr. Cunningham was outside the building and off Southern
Steel’s premises. Therefore, nobody knows the purpose of this break from his job duties
– whether he was on a personal comfort mission or whether he had another purpose for
leaving his workplace.

       Estate first argues that Southern Steel “is unable to produce any persuasive
evidence that [Mr. Cunningham] was not engaged in an activity that had some connection
with [his] job related functions.” This argument misapprehends the summary judgment
standard in Rye, which requires Estate to establish that the record contains specific facts
upon which the Court could base a decision in its favor.

         Estate then attempts to do this by suggesting that Mr. Cunningham “most likely
stepped outside to make a phone call to his mother when he encountered the gunman.”
However, it offered no evidence in support of this hypothesis. The Court cannot simply
assume Mr. Cunningham left the building for a reason that meets the personal comfort
exception – it requires proof to make that finding. In the absence of actual evidence,
Estate’s conjecture is insufficient to establish that Mr. Cunningham’s death outside
Southern Steel’s premises arose primarily out of his employment. As Estate’s evidence is
insufficient to establish this essential element its claim, the Court holds Southern Steel is
entitled to summary judgment as a matter of law.

IT IS, THEREFORE, ORDERED as follows:

   1. Southern Steel’s Motion for Summary Judgment is granted, and Estate’s claim is
      dismissed with prejudice to its refiling.

   2. Absent appeal, this order shall become final thirty days after entry.


                                             4
   3. The Court taxes the $150.00 filing fee to Southern Steel under Tennessee
      Compilation Rules and Regulations 0800-02-21-.07 payable to the Clerk within
      five days of this order becoming final.

   4. Southern Steel shall prepare and submit the SD-2 with the Clerk within ten days of
      the date of judgment.

       ENTERED February 21, 2019.



                                          ______________________________________
                                          Judge Dale A. Tipps
                                          Court of Workers’ Compensation Claims

                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on February 21, 2019.


   Name                      Certified   Via         Service Sent To
                             Mail        Email
   Emily B. Bragg, Esq.                      X       ebragg@forthepeople.com
   Employee’s Attorney
   Paul Todd Nicks, Esq.                     X       pnicks@travelers.com
   Employer’s Attorney
   MOST                                      X       Lashawn.pender@tn.gov
                                                     Immacolata.whitman@tn.gov




                                          ______________________________________
                                          Penny Shrum, Court Clerk
                                          Wc.courtclerk@tn.gov




                                             5
                                 II
                                  I                                                       'I



                          Compensation Hearing Order Right to Appeal:

     If you disagree with this Compensation Hearing Order, you may appeal to the Workers'
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers'
Compensation Appeals Board, you must:

    1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal," and file
       the form with the Clerk of the Court of Workers' Compensation Claims within thirty
       calendar days of the date the compensation hearing order was filed. When filing the
       Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
       represented).

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau's
      website or any Bureau office) seeking a waiver ofthe filing fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of lndigency will
      result in dismissal of your appeal.

   3~   You bear the responsibility of ensuring a complete record on appeal. You may request
        from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
        reporter must prepare a transcript and file it with the court clerk within fifteen calendar
        days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
        evidence prepared jointly by both parties within fifteen calendar days of the filing of the
        Notice of Appeal. The statement of the evidence must convey a complete and accurate
        account of the hearing. The Workers' Compensation Judge must approve the statement
        of the evidence before -the record is submitted to the Appeals Board. If the Appeals
        Board is called upon to review testimony or other proof concerning factual matters, the
        absence of a transcript or statement of the evidence can be a significant obstacle to
        meaningful appellate review.

   4. After the Workers' Compensation Judge approves the record and the court clerk transmits
      it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
      party has fifteen calendar days after the date of that notice to submit a brief to the
      Appeals Board. See the Practices and Procedures of the Workers' Compensation
      Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court's
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann.§ 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
II                                                                                                                      I.
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                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                      800-332-2667

                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ __ _ _ _ _ __                       2. Address: - - - - - - - -- - - --

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - -- - - -- -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -

             - - - - - - - - - - - - - -- --                  Relationship: - - - - - -- - - -- - -

             - - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - -- - - -- -

     6. I am employed by: - - - - - - - - - - -- - - -- - - - - - -- - - -- - -

             My employer's address is: - - - - -- - - - -- - - - - - -- - -- - - - -

             My employer's phone number is: - - - -- - - - -- - - - - - -- - - -- - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ __

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are:     ! ~                                                      li
                                                                                  I
                          '

        Rent/House Payment $              per month     Med icai/Dental $ _ _ ___ per month

        Groceries       $           per month           Telephone       $ _ __ _ _ per month
        Electricity     $           per month           School Supplies $ _ _ _ _ _ per month
        Water           $           per month           Clothing        $ _ _ _ _ _ per month
        Gas             $           per month           Child Care      $ _ _ _ _ _ per month
        Transportation $            per month           Child Support   $ _ _ _ _ _ per month
        Car             $            per month
        Other           $           per month (describe:


10. Assets:

        Automobile              $ _ _ _ __
                                                        (FMV) - - - - - - - - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ __
                                                        (FMV) - - - - - - - - - -
        Other                   $ _ _ _ __              Describe:_ _ _ _ __ _ __ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

____ dayof _____________________ , 20_ __




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ _ __




LB-1108 (REV 11/15)                                                                          RDA 11082
