IN THE SUPREME COURT OF TENNESSEE SPECIAL WORKERS' COMPENSATION APPEALS PANEL. AT KNOXVILLE (August 5, 1996 Session)

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1 IN THE SUPREME COURT OF TENNESSEE SPECIAL WORKERS' COMPENSATION APPEALS PANEL AT KNOXVILLE (August 5, 1996 Session FILED January 27, 1997 RONALD L. SHOOK, KNOX CIRCUIT Cecil Crowson, Jr. Appellate Court Clerk Plaintiff-Appellant, Hon. Harold Wimberley, Judge. v. No. 03S CV YATES CONSTRUCTION COMPANY, INC, and CNA INSURANCE COMPANIES, Defendants-Appellees. For Appellant: Robert C. Edwards Knoxville, Tennessee For Appellee: Stephen E. Yeager Lowe, Shirley & Yeager Knoxville, Tennessee M E M O R A N D U M O P I N I O N Members of Panel:

2 E. Riley Anderson, Associate Justice, Supreme Court William H. Inman, Special Judge Joe C. Loser, Jr., Special Judge AFFIRMED Loser, Judge MEMORANDUM OPINION This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section (e(3 for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employee or claimant, Shook, contends the evidence preponderate against the trial judge's finding that his psychological condition did not arise out of his employment. The panel has concluded that the judgment should be affirmed. The claimant has a long history of mental illness, including severe depression and post-traumatic stress disorder, and drug and alcohol abuse. He has been hospitalized and received out-patient care since his discharge from military

3 service following a tour of duty in Vietnam. On July 10, 1991, while working for Yates, he was slowly driving a dump truck when the front axle dropped suddenly, causing the front end of the truck to hit the pavement. He claims that he felt immediate back pain and fright. Immediately following the accident, the claimant angrily confronted his supervisor and the owner of the business, using abusive language, about the accident and condition of the truck. He was fired. Shook also has a history of back pain, having received a previous workers' compensation award in 1977 while working for another employer. He also experienced back pain following a car accident in 1984 and a work-related truck accident in An orthopedic surgeon examined the claimant and diagnosed chronic back strain and early osteoarthritic changes, but opined by deposition that he was not impaired. Two psychiatrists testified that the accident triggered an acute episode of the claimant's pre-existing condition, but their testimony did not establish any impairment causally connected to the accident. The record also contains the testimony of two psychologists and a social worker, who expressed opinions as to the

4 claimant's industrial disability. The trial court denied any workers' compensation benefits for Mr. Shook's psychological condition. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section (e(2. This tribunal is required to conduct an independent examination of the evidence to determine where the preponderance of the evidence lies. A mental injury by accident arises out of employment if it is caused by an identifiable, stressful work-related event producing sudden mental stimulus such as fright, shock or excessive unexpected anxiety. Batson v. Cigna Property and Cas. Co., 874 S.W.2d 566, 569 (Tenn As in all but the most obvious cases, both causation and permanency must be established by expert medical testimony. Wade v. Aetna Casualty and Surety Company, 735 S.W.2d 215 (Tenn The medical evidence in this case fails to preponderate against the finding that the claimant's psychological injury pre-existed the work-related accident and was not caused by it. The judgment of the trial court is accordingly affirmed. Costs on appeal are taxed to the plaintiff-appellant.

5 Joe C. Loser, Jr., Judge CONCUR: E. Riley Anderson, Associate Justice William H. Inman, Judge

6 I N T H E S U P R E M E C O U R T O F T E N N E S S E E A T K N O X V I L L E FILED R O N A L D L. S H O O K K N O X C I R C U I T N O January 27, 1997 P l a i n t i f f / A p p e l l a n t, H o n. H a r o l d W i m b e r l ececil y Crowson, Jr. V. Appellate Court Clerk Y A T E S C O N S T R U C T I O N C O M P A N Y, S. C t. N o S C V I N C., a n d C N A I N S U R A N C E C O M P A N I E S, D e f e n d a n t s / A p p e l l e e s. A f f i r m e d J U D G M E N T O R D E R T h i s c a s e i s b e f o r e t h e C o u r t u p o n m o t i o n f o r r e v i e w p u r s u a n t t o T e n n. C o d e A n n ( e ( 5 ( B, t h e e n t i r e r e c o r d, i n c l u d i n g t h e o r d e r o f r e f e r r a l t o t h e S p e c i a l W o r k e r s ' C o m p e n s a t i o n A p p e a l s P a n e l, a n d t h e P a n e l ' s M e m o r a n d u m O p i n i o n s e t t i n g f o r t h i t s f i n d i n g s o f f a c t a n d c o n c l u s i o n s o f l a w, w h i c h a r e i n c o r p o r a t e d h e r e i n b y r e f e r e n c e ; W h e r e u p o n, i t a p p e a r s t o t h e C o u r t t h a t t h e m o t i o n f o r r e v i e w i s n o t w e l l - t a k e n a n d s h o u l d b e d e n i e d ; a n d I t i s, t h e r e f o r e, o r d e r e d t h a t t h e P a n e l ' s f i n d i n g s o f f a c t a n d c o n c l u s i o n s o f l a w a r e a d o p t e d a n d a f f i r m e d, a n d t h e d e c i s i o n o f t h e P a n e l i s m a d e t h e j u d g m e n t o f t h e C o u r t. C o s t w i l l b e p a i d b y P l a i n t i f f / A p p e l l a n t f o r w h i c h e x e c u t i o n m a y i s s u e i f n e c e s s a r y. I t i s s o o r d e r e d t h i s _ d a y o f _, P E R C U R I A M