PADILLA v. TWIN CITY FIRE INS. CO

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Docket Number

No. M2008-02489-SC-WCM-WC.

Attorney(S)

H. Tom Kittrell, Jr. and T.J. Cross-Jones, Nashville, Tennessee, for the appellant, Ana R. Padilla. Blakeley D. Matthews and Brian W. Holmes, Nashville, Tennessee, for the appellee, Twin City Fire Insurance Company.

Judges

GARY R. WADE, J., dissenting.

Acts

Labor — General Provisions — Employee Retirement Income Security Program — Protection Of Employee Benefit Rights — Congressional Findings And Declaration Of Policy

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Ana R. PADILLA v. TWIN CITY FIRE INSURANCE COMPANY.

MEMORANDUM

WILLIAM NICKERSON, District Judge

Before the Court is Defendant's Motion for Summary Judgment. Paper No. 14. The motion is fully briefed. Upon a review of the motion and the applicable case law, the Court determines that no hearing is necessary, Local Rule 105.6, and that the motion must be granted.

Plaintiff Brian Bickel filed this action pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., seeking a determination that his employer, Defendant Sunbelt Rentals, Inc., abused its discretion in refusing to provide coverage for medical expenses he incurred as a result of a motorcycle accident. Plaintiff has been employed by Defendant since September 2004 and, as an employee, was a participant in Defendant's Employee Benefit Plan (the Plan). The Plan is designed and maintained by Defendant to provide health care benefits to covered employees and dependants in the event of injury or sickness.

Late in the evening of April 25, 2008, or early the following morning, Plaintiff was involved in a serious motorcycle accident in the state of Ohio. He was rendered unconscious and transported by ambulance to an area hospital for treatment. Plaintiff suffered serious injuries in the accident and has incurred almost $70,000 in medical bills which he then submitted to Defendant for coverage of those bills under the Plan.

Under the terms of the Plan, the initial decision to approve or deny coverage for medical claims is made by Primary PhysicianCare, Inc. (PPC), the Plan Supervisor. Summary Plan Description (SPD) at 59-62. PPC denied Plaintiff's claim under a provision in the Plan that excludes coverage for "[c]harges for treatment of any injury or illness resulting from: . . . an injury resulting from a motor vehicle accident in which a covered person has a blood alcohol concentration equal to or in excess of the level established by the laws of the state in which the accident occurred for driving while impaired. . . ." SPD at 21. Defendant denied coverage based upon a toxicology test performed at the hospital following the accident which reported that Plaintiff had a blood alcohol level of 0.201 g/dL. The blood alcohol level for driving while impaired as established by the state of Ohio is 0.08 g/dL. Thus, Plaintiff's blood alcohol level was more than twice the legal limit.

A copy of the SPD was submitted as Exhibit A to the Complaint.

By letter dated November 18, 2008, Plaintiff, through counsel, appealed the denial of benefits. Compl., Ex. F. In support of his appeal, Plaintiff enclosed a copy of the police report which he states shows that he "was not found to be intoxicated at the scene of the accident." Id. In that letter, he also requested a copy of the toxicology report on which Defendant relied in denying benefits.

PPC responded by letter dated November 24, 2008, enclosing a copy of the toxicology report and reiterating its conclusion that Plaintiff's claims are excluded from coverage because Plaintiff's blood alcohol level exceeded the legal limit in Ohio, the place of the accident. The letter informed Plaintiff of his appeal rights and invited him to submit any additional information or documents that would indicate that the facts relied upon by PPC were incorrect and that the claim is eligible for reimbursement.

By letter to Defendant dated February 3, 2009, again through counsel, Plaintiff submitted his formal appeal of PPC's decision. Contending that the decision "relied upon Ohio law," Plaintiff argued that under well established Ohio law, "an insurer must be able to demonstrate not only that the insured was legally intoxicated at the time of the accident, but also that the insured's intoxication was the proximate cause of the accident, even if the policy term itself does not contain such a `causation' requirement." Compl., Ex. E.

Exhibit E to the Complaint included both Plaintiff's November 18, 2008, and February 3, 2009, letters.

Defendant denied Plaintiff's appeal, explaining that the decision did not rely on Ohio state law but relied solely on the interpretation of the terms of the Plan. Compl., Ex. D. As required under the terms of the Plan, Defendant looked to Ohio law only for the purpose of determining the appropriate benchmark to apply to the blood alcohol concentration of Plaintiff during the accident. Id. The letter further informed Plaintiff that he could bring a civil action if he was not satisfied with the decision.

Plaintiff filed suit here on October 21, 2009. The parties engaged in some limited discovery although both now agree that this Court's review must be limited to the evidence before the Plan Administrator at the time of its decision. Opp'n at 4-5; Reply at 2. n. 1 (asserting that the additional evidence submitted with Defendant's motion that had not been before the Plan Administrator was only submitted "to provide the Court with a narrative history"). Defendant has now moved for summary judgment asserting that, under the applicable standard for review of decisions made by employee benefit plans, the Court must defer to Defendant's determination that Plaintiff's claims are subject to the above-quoted exclusion and must enter judgment accordingly.

In ERISA cases, when a benefits plan confers to the administrator the discretionary authority to determine benefit claims and appeals, courts will review those determinations under an "abuse of discretion" standard. Metro. Life Ins. Co. v. Glenn, 128 S.Ct. 2343, 2348 (2008); Firestone Tire Rubber Co v. Bruch, 489 U.S. 101 (1989). Here, the SPD provides in pertinent part that

Plaintiff acknowledges that the "abuse of discretion" standard is the appropriate standard of review in this action but adds that "[a]ny ambiguity which may exist in the language of the Plan must be construed against [Defendant,] the drafter of the Plan." Opp'n at 3 (citing Doe v. Group Hospitalization Med. Servs., 3 F.3d 80, 89 (4th Cir. 1993)). The Supreme Court's decision inGlenn, however, abrogated the Fourth Circuit's rule whereby ambiguities were construed against the drafter. Carden v. Aetna Life Ins. Co., 559 F.3d 256, 260 (4th Cir. 2009).

[t]he Plan Administrator is required to administer this Plan in accordance with its terms and has the authority to establish policies and procedures for the management and operation of the Plan. It is the express intent of this Plan that the Plan Administrator shall have sole and complete discretionary authority to construe and interpret the terms and provisions of the Plan, to decide issues regarding eligibility and benefits due under the Plan, and to make all determinations, including factual determinations, arising under the Plan. Except as otherwise required by law, the decisions of the Plan Administrator will be final and binding for all interested parties.

SPD at 66 (emphasis added).

Pursuant to the "abuse of discretion" standard, an administrator's decision will be upheld if it is reasonable, even if the reviewing court would have reached a different conclusion based on the same set of facts and policy language. White v. Eaton Corp. Short Term Disability Plan, 308 F. App'x 713, 716 (4th Cir. 2009); Bernstein v. CapitalCare, Inc., 70 F.3d 783, 787 (4th Cir. 1995). For a decision to be reasonable, it must follow a "full and fair review" and be "the result of a deliberate, principled reasoning process" that is "supported by substantial evidence." 29 U.S.C. § 1332(a); See also Stup v. UNUM Life Ins. Co. of Am., 390 F.3d 301, 307 (4th Cir. 2004).

Courts examine the reasonableness of a decision by looking to several non-exclusive factors, including:

(1) the language of the plan; (2) the purposes and goals of the plan; (3) the adequacy of the materials considered to make the decision and the degree to which they support it; (4) whether the fiduciary's interpretation was consistent with other provisions in the plan and with earlier interpretations of the plan; (5) whether the decision-making process was reasoned and principled; (6) whether the decision was consistent with the procedural and substantive requirements of ERISA; (7) any external standard relevant to the exercise of discretion; and (8) the fiduciary's motives and any conflict of interest it may have.

Booth v. Wal-Mart Stores, Inc. Assocs. Health and Welfare Plan, 201 F.3d 335, 342-43 (4th Cir. 2000). Moreover, the phrase "substantial evidence" refers to evidence that "consists of less than a preponderance but more than a scintilla of relevant evidence that `a reasoning mind would accept as sufficient to support a particular conclusion.'" Whitley v. Hartford Life Accident. Ins. Co., 262 F. App'x 546, 551 (4th Cir. 2008) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). Put differently, "[i]f there is evidence to justify a refusal to direct a verdict were the case before the jury, then there is `substantial evidence.'" Celebrezze, 368 F.2d at 642.

With regard to the final element of the reasonableness test announced in Booth, a conflict of interest exists where, as here, an employer or benefit plan serves the dual role of determining eligibility for benefits and actually paying the benefits. Glenn, 128 S.Ct. at 2346. A conflict of interest, however, does not operate to reduce the deference given to a fiduciary's discretionary decision to deny benefits. Rather, it is weighed as "but one among many factors in determining the reasonableness of the Plan's discretionary determination." Champion v. Black Decker (U.S.) Inc., 550 F.3d 353, 359 (4th Cir. 2008).

The Court finds Defendant's denial of coverage for claims arising out of the motorcycle accident to be reasonable and supported by substantial evidence. The language of the SPD is clear and unambiguous; coverage for treatment of injuries resulting from a motor vehicle accident will be denied if the covered person had a blood alcohol level that meets or exceeds the legal limit as established by the state in which the accident occurred. The toxicology report indicated that Plaintiff's blood alcohol level shortly after the accident was more than twice the legal limit and it is certainly reasonable to conclude that his blood alcohol level was not any lower at the time of the accident. Although invited to do so, Plaintiff failed to provide any information or documents that undermine the validity or reliability of the toxicology report.

The only document submitted by Plaintiff was the report of the police officer investigating the accident. Plaintiff asserts that the officer found that "Plaintiff was not under the influence of alcohol at the time of the Accident," noting that, in answer to a multiple choice form question as to Plaintiff's "Alcohol Test Status," the officer indicated "None" where he could have indicated "Unknown" or "Suspected." Opp'n at 10. Plaintiff ignores, however, the immediately preceding question, "Alcohol/Drug Suspected," for which the officer did indicate "Unknown." Police Report at 2. The report provides no evidence that Plaintiff was "not under the influence," it is simply consistent with the conclusion that Plaintiff was critically injured, perhaps unconscious, so that the officer did not make any determination whatsoever as to Plaintiff's state of intoxication nor did he decide to test for intoxication.

Although Plaintiff does not appear to have raised this argument prior to Defendant making its final determination, Plaintiff now challenges the bona fides of the toxicology report, noting that it states that its "results are for medical treatment only," and that its "analysis [was] performed using non-forensic procedures." Pl.'s Ex. A at 2. It was reasonable, however, for Defendant to conclude that a test conducted for the purpose of medical treatment was designed to be accurate and Plaintiff provided nothing to undermine that conclusion. It would be highly unreasonable to conclude that the test was so inaccurate as to report Plaintiff's blood alcohol level as more than twice the legal limit if it was, in fact, under the legal limit. Nothing in the record supports that conclusion.

Plaintiff's primary argument here as well as when his claim was before Defendant is that "[u]nder well-established Ohio law, Defendant had the burden to prove not only that Plaintiff had an illegal [blood alcohol content] level at the time of the Accident, but also that Plaintiff's alleged [blood alcohol content] level was the proximate cause of the Accident, despite the fact that the Plan itself does not contain such a `causation' requirement." Opp'n at 7. This argument, of course, is premised on Plaintiff's contention that "Defendant relied upon Ohio state law in making its eligibility determinations under the Plan." Opp'n at 6 (emphasis in original). This argument is flawed for at least two reasons.

First and foremost, Defendant did not rely on Ohio law but simply applied the plain language of the Plan. The Plan required reference to Ohio law, but solely to obtain a benchmark blood alcohol level. While the Plan could have tied ineligibility for benefits to a determination that the participant was "driving under the influence of alcohol" under the law of the state in which the accident occurred, or to a finding that the accident was caused by the participant's intoxication, or to some other criteria, it did not do so. Furthermore, the Court notes that Defendant unquestionably had the authority to frame its exclusion under the terms that it did. See Sutton v. Hearth Home Distrib., Inc., 881 F. Supp 210, 216 (D. Md. 1995) (noting that "ERISA does not regulate the substantive content of welfare benefit plans"); Chmiel v. JC Penney Life Ins. Co., 138 F.3d 966, 969 (7th Cir. 1998) (finding that an exclusion in an accidental death policy based upon blood alcohol level was enforceable).

It is true, as Plaintiff suggests, that there are some circumstances where courts are permitted to look to state law to shape a body of federal common law of rights and obligations under ERISA-regulated plans. Firestone Tire, 489 U.S. at 110. It is also true, however, that federal common law cannot be used when "its application would conflict with the statutory provisions of ERISA . . . or [would] threaten to override the explicit terms of an established ERISA benefit plan." Singer v. Black Decker Corp., 964 F.2d 1449, 1452 (4th Cir. 1992). See also, Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 59-60 (4th Cir. 1992). While ERISA's express provisions can be supplemented when gaps exist in the language, when the purposes of the ERISA plan are written, unambiguous, and bargained-for, application of federal common law is inappropriate because the terms of the plan should be enforced. United McGill Corp. v. Stinnett, 154 F.3d 168, 173 (4th Cir. 1998). Under the facts presented here, adding a causation element to the exclusion would be an impermissible modification to the Plan. See Chmiel, 158 F.3d at 969 (refusing to imply a causation element in a similarly worded exclusion in an accidental death policy).

The court in Chmiel did opine that in circumstances "where no conceivable causal connection exists between the decedent's blood-alcohol level and his death, the exclusion should not be enforced." 158 F.3d at 969. The court also observed, however, that "under such an approach, the burden of disproving any causal connection would fall on the beneficiary." Id. As explained,infra, Plaintiff could not meet that burden.

Regardless, even if there had been a causation requirement in the exclusion, that requirement would be met here. The police report concerning the accident indicates that the road conditions on the night of the accident were dry and identified no other adverse conditions. The officer identified the cause of the accident as Plaintiff's failure to negotiate the roadway and to maintain a safe distance from the motorcycle he was following, driving behavior that is certainly consistent with a state of intoxication. See Eckelberry v. Reliastar Life Ins. Co., 469 F.3d 340, 345 (4th Cir. 2006) (noting the "typical effects of blood-alcohol concentration of 1.5 percent included blurred vision, loss of motor coordination and impaired judgment") (internal quotations omitted).

Plaintiff stated in his answers to interrogatories and in his deposition that the accident was caused by a wet road surface and loose gravel. Pl's Ans. to Interrog. #5; Pl's Dep. at 109-10. Defendant also states that Plaintiff presented this assertion to Defendant to support his request for coverage, Reply at 1, although it is not clear from the record whether he offered this explanation prior to discovery in this action. Assuming, however, that he did, Defendant's decision to credit the police report over Plaintiff's version would have been reasonable and the police report is substantial evidence of the lack of an alternative cause.

For these reasons, the Court finds that Defendant's denial of coverage was not an abuse of discretion and, accordingly, Defendant is entitled to judgment. A separate order will issue.

DATED: October 6, 2010

) directs the courts to construe the Workers' Compensation Law as a "remedial statute, which shall be given an equitable construction by the courts, to the end that the objects and purposes of [the Workers' Compensation Law] may be realized and attained." However, even though the courts now construe the Workers' Compensation Law liberally in favor of the injured employee or beneficiary, Crew v. First Source Furniture Grp., 259 S.W.3d 656, 664 (Tenn. 2008); Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007), we have held consistently that the burden of proving the entitlement to workers' compensation benefits is always on the injured employee or beneficiary. See, e.g., Excel Polymers, LLC v. Broyles, 302 S.W.3d 268, 274 (Tenn. 2009); Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008); Whirlpool Corp. v. Nakhoneinh, 69 S.W.3d 164, 168 (Tenn. 2002).

When an employee presents some evidence that his or her injury arose out of and occurred in the course of his or her employment, the courts will resolve any reasonable doubt about whether the injury arose out of the employment in the employee's favor. DeBow v. First Inv. Prop., Inc., 623 S.W.2d 273, 275 (Tenn. 1981). However, this principle does not apply without some evidence. As this Court noted, "[t]he liberal construction rule applying to workers' compensation cases is not broad enough to supply proof where none exists." Legions v. Liberty Mut. Ins. Co., 703 S.W.2d 620, 623 (Tenn. 1986).

Professor Larson has correctly noted that the effect of placing the burden of proof on the injured employee with regard to injuries caused by neutral risks generally results in requiring the employee, rather than the employer, to bear the loss. 1 Larson's Workers' Compensation Law § 4.03, at 4-3. While he has also noted that the cases are now "more evenly divided" with regard to the compensability of neutral assaults, many of the cases finding compensability are based either on a statutory presumption that an assault occurring on the work premises is work-related or on the fact that the nature of the employee's work exposed the employee to the risk of assault. In cases where an employee sustains an injury at work from a neutral risk and there is no evidence that the risk was connected personally to the employee, the "positional risk" doctrine permits the employee to recover because the slender connection with the employee's work "is at least stronger than any connection with the [employee's] personal life." 1 Larson's Workers' Compensation Law § 4.03, at 4-3.

1 Larson's Workers' Compensation Law § 8.03[3], at 8-67. Of the twenty jurisdictions cited by Professor Larson, eight jurisdictions permitted recovery based on the positional risk doctrine; four jurisdictions permitted recovery based on statutes that lack a counterpart in Tennessee; and seven jurisdictions used the street risk doctrine to conclude that the assault arose out of the employment. The case cited by Professor Larson as an example of Ohio law is actually a case from Indiana. Although not cited by Professor Larson, the District of Columbia employs a statutory presumption of compensability based on the positional risk doctrine. Clark v. D.C. Dep't of Emp't Servs., 743 A.2d 722, 728 (D.C. 2000).

Tennessee's courts have recognized that the Workers' Compensation Law does not render an "employer an insurer against every accidental injury . . . occurring during employment." Scott v. Shinn, 171 Tenn. 478, 483, 105 S.W.2d 103, 105 (1937). Thus, Tennessee's courts have consistently held that "the mere presence of the employee at the place of injury because of employment will not alone result in the injury being considered as arising out of employment." Lennon Co. v. Ridge, 219 Tenn. 623, 636, 412 S.W.2d 638, 644 (1967) (quoting Knox v. Batson, 217 Tenn. 620, 631, 399 S.W.2d 765, 770 (1966)); see Jackson v. Clark Fay, Inc., 197 Tenn. 135, 137, 270 S.W.2d 389, 390 (1954); Thornton v. RCA Serv. Co., 188 Tenn. 644, 646, 221 S.W.2d 954, 955 (1949). Based on these settled holdings, this Court has repeatedly rejected a general application of the positional risk doctrine. Bell v. Kelso Oil Co., 597 S.W.2d 731, 734 (Tenn. 1980); Hudson v. Thurston Motor Lines, Inc., 583 S.W.2d at 599-600; Lennon Co. v. Ridge, 219 Tenn. at 636, 412 S.W.2d at 644.

The presumption that Ms. Padilla asks us to adopt is another variant of the positional risk doctrine. It would enable employees who are injured at work by a neutral risk to recover simply because they were injured at work. It would also dispense with the requirement that the injured employee or beneficiary prove that the injury arose out of the work. Rather than supporting Ms. Padilla's proposed presumption, our case law squarely rejects it. Accordingly, we decline Ms. Padilla's request to depart from our past precedents and leave it to the General Assembly to engraft such a presumption onto the Workers' Compensation Law if it so chooses.

VI.

We affirm the judgments of the Special Workers' Compensation Appeals Panel and the trial court and remand the case to the trial court for whatever proceedings consistent with this opinion may be required. We tax the costs of this appeal to Ana R. Padilla and her surety for which execution, if necessary, may issue.

GARY R. WADE, J., filed a dissenting opinion. CORNELIA A. CLARK, C.J., not participating.

GARY R. WADE, J., dissenting.

I respectfully dissent. A basic principle of the Workers' Compensation Act ("the Act") is its remedial purpose. Tenn. Code Ann. § 50-6-116 (2008); Trosper v. Armstrong Wood Prods., Inc., 273 S.W.3d 598, 609 n. 5 (Tenn. 2008). For years, this Court has interpreted this statutory mandate to favor the employee under circumstances where there is "reasonable doubt" surrounding the compensability of a work-related claim. In my view, the claimant, in this instance, is entitled to the benefit of the doubt. Moreover, the "street risk doctrine," inaptly named, should serve as an alternative basis for the establishment of the causal relationship necessary to sustain the propriety of this claim.

"[T]his chapter is declared to be a remedial statute, which shall be given an equitable construction by the courts, to the end that the objects and purposes of this chapter may be realized and attained."

This state's first workers' compensation laws were enacted in 1919. Lynch v. City of Jellico, 205 S.W.3d 384, 390 (Tenn. 2006); Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 846 (1920). A purpose of the Act was to provide a remedy for the injury or death of an employee against an employer without regard to negligence or fault. See Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 762 (1963); Partee v. Memphis Concrete Pipe Co., 155 Tenn. 441, 295 S.W. 68, 69 (1927). As stated in Wait v. Travelers Indemnity Co., 240 S.W.3d 220 (Tenn. 2007), the Act "is a legislatively created quid pro quo system where an injured worker forfeits any potential common law rights for recovery against his or her employer in return for a system that provides compensation completely independent of any fault on the part of the employer." Id. at 224 (citing Tenn. Code Ann. § 50-6-108(a) (2005)).

For an injury to be compensable under the Act, it must both arise out of and occur in the course of employment. See Tenn. Code Ann. § 50-6-102(12) (2008); Blankenship v. Am. Ordnance Sys., LLS, 164 S.W.3d 350, 353-54 (Tenn. 2005). As stated by the majority, however, these statutory requirements are not synonymous. See Sandlin v. Gentry, 201 Tenn. 509, 300 S.W.2d 897, 901 (1957). Certainly, Jose Sanchez's death meets the second criteria — "in the course of" his employment — which refers to the "time, place, and circumstances." Crew v. First Source Furniture Grp., 259 S.W.3d 656, 664 (Tenn. 2008) (citing Hill v. Eagle Bend Mfg., Inc., 942 S.W.2d 483, 487 (Tenn. 1997)). The question before us, therefore, is indeed whether the fatal attack on Sanchez arose out of his employment in the sense that his employment bore a causal relationship with his death.

The general rule is that the injury is in the course of employment "`when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.'" Blankenship, 164 S.W.3d at 354 (quoting 1 Larson's Workers' Compensation Law § 12 (2004)).
In Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991), this Court made the following observation:

The phrase "in the course of" refers to time, place, and circumstances, and "arising out of" refers to cause or origin. "[A]n injury by accident to an employee is in the course of employment if it occurred while he was performing a duty he was employed to do; and it is an injury arising out of employment if caused by a hazard incident to such employment." Generally, an injury arises out of and is in the course and scope of employment if it has a rational connection to the work and occurs while the employee is engaged in the duties of his employment.

Id. (citations omitted).

When there is a causal connection between the conditions under which the work is required to be performed and the resulting injury, the injury arises out of the employment. Fritts v. Safety Nat'l. Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005). While evidence of causation must not be speculative or conjectural, absolute "certainty is not required, and reasonable doubt must be resolved in favor of the employee." Glisson v. Mohon Int'l., Inc./Campbell Ray, 185 S.W.3d 348, 354 (Tenn. 2006) (citations omitted). Moreover, "the law does not distinguish between the probative value of direct evidence and the probative value of circumstantial evidence." Hindman v. Doe, 241 S.W.3d 464, 468 (Tenn.Ct.App. 2007). Whether direct or circumstantial, evidence can be equally relevant, Neil P. Cohen et al., Tennessee Law of Evidence § 4.01[5], at 4-11 (5th ed. 2005), and equally probative, McEwen v. Tenn. Dep't of Safety, 173 S.W.3d 815, 825 (Tenn.Ct.App. 2005) (citations omitted). Any material fact, of course, may be proven by using direct evidence, circumstantial evidence, or a combination of both. State v. Phillips, 138 S.W.3d 224, 230 (Tenn.Ct.App. 2003); Burton v. Warren Farmers Coop., 129 S.W.3d 513, 523 (Tenn.Ct.App. 2002).

In the case before us, Sanchez, who had been employed for several years by Xelica LLC, a limited liability corporation owned by George Moolman, opened business operations each day as a part of his job responsibilities. Xelica, a manufacturer of windows and doors for distribution to sales outlets, was located in a light industrial area in Nashville. Just before 5:30 a.m. on July 13, 2007, area residents heard gunshots but otherwise saw nothing unusual at the business premises. When Moolman arrived at 6:00 a.m., Sanchez was not at his work station, the machines were not in operation, and music, which was typically turned on by the time of his arrival, was not playing. Moolman then discovered Sanchez's body. There were two bullet wounds to the chest and two to the head. A police investigation established that there was some damage to the door. The lead detective, David Achord, testified that "[t]here was a scratch on the exterior side of the door, and then there was some damage to the door frame itself where the dead bolt would lock and the door latch would lock." Detective Brad Corcoran testified that there were two doors on site: a roll-up door and a walk-through door. He stated that "[t]he walk-through door had a bullet hole or two, as I recall, that was in it. It looked like it had been shot from the outside in." He also stated that "There was some type of damage to the lock, as I recall now. It was damaged almost like it was knocked off." On cross-examination, he expressed uncertainty about whether the bullets were shot through the outside or the inside of the door. He confirmed that the damage to the lock was on the inside. Nothing had been stolen from the business and Sanchez's personal effects remained undisturbed. The investigation further established that Sanchez had no criminal history. The police were unable to determine any motive for his murder. There was no indication that the assault was connected in any way to the private life of Jose Sanchez. Ultimately, no one was charged with any crime, and the investigation was transferred to the cold case unit of the Metropolitan Police.

Whether that component of his job was at Sanchez's request or not is of no consequence, because the employer is obviously the final authority as to the duties of employment.

There was circumstantial evidence at trial. There was proof that Xelica was located in a high-crime area. For example, a nearby business, which sold auto parts, had been burglarized on over twenty different occasions. As a precaution, the owner had secured a handgun permit, hired a security guard, and placed razor wire fencing around his property. Moreover, the police had investigated nine other forced entries, three unforced entries, and one murder in the area between 2005 and Sanchez's death in 2007. Xelica had been burglarized on two different occasions, both of which were "inside jobs" by employees who were later terminated. Moolman acknowledged that he had considered building a security fence as a means of added security. There was no suggestion that the murder was connected with either the fired employees at Xelica or those still on the payroll.

Twin City Fire Insurance Company, Xelica's workers' compensation insurance carrier, made three arguments: first, that the neighboring business that had been burglarized on several occasions was different, in that it was open to the public, while Xelica was exclusively a manufacturer; second, that Xelica's prior burglaries had been committed by its own employees; and third, that theft was an unlikely motive because nothing had been taken from the premises. While declining to grant a motion for directed verdict, the trial court ultimately agreed with Twin City's contentions, concluding that while the evidence did not connect the crime to Sanchez's private life, neither had it established that the motive for the murder was burglary, and, thus, the theory in support of recovery and the theory of the defense were equally plausible. Further, the trial court determined that the street risk doctrine, adopted in 1979 to "provid[e] the necessary causal connection between the employment and the injury" when "the employment exposes the employee to the hazards of the street," had no application under these circumstances. Hudson v. Thurston Motor Lines, Inc., 583 S.W.2d 597, 602 (Tenn. 1979).

Initially, I fear that the majority, by classifying this case as an assault resulting from a "neutral force" (or a random assault), has failed to give adequate consideration to the circumstantial evidence, largely unrefuted, presented in support of the claim for benefits, and in consequence, has neglected to give appropriate deference to the remedial nature of the Act. See Tenn. Code Ann. § 50-6-116. Language appearing in Martin v. Lear Corp., 90 S.W.3d 626 (Tenn. 2002), illustrates my concern:

Tennessee Code Annotated section 50-6-116 declares the Workers' Compensation statute to be remedial in nature, and directs that the statute "shall be given an equitable construction by the courts, to the end that the objects and purposes of this chapter may be realized and attained." "Accordingly, `these laws should be rationally but liberally construed to promote and adhere to the Act's purposes of securing benefits to those workers who fall within its coverage.'"

Id. at 629 (emphasis added) (citations omitted); see also Shubert v. Steelman, 214 Tenn. 102, 377 S.W.2d 940, 943 (1964) (same).

This Court has consistently ruled that "any reasonable doubt as to whether an injury arose out of the employment is to be resolved in favor of the employee." E.g., Beck v. State, 779 S.W.2d 367, 371 (Tenn. 1989). Even when the assault has been classified as "neutral," this Court has traditionally applied this principle and granted recovery to the employee. For example, in Braden v. Sears, Roebuck Co., 833 S.W.2d 496 (Tenn. 1992), the employee, a television technician who made house calls to Sears customers in a van furnished by the employer, parked the van in his driveway at the end of his workday. Id. at 497-98. While reviewing work documents in order to organize his schedule for the following day, the technician was assaulted and robbed of twenty dollars by an unknown assailant. Id. at 498. Despite the employee being "off the clock" and away from the business premises, this Court sustained his workers' compensation claim, observing that the "arising out of requirement is satisfied if an injury has a rational, causal connection to the work. Id. This Court confirmed the viability of the principle that "any reasonable doubt as to whether an injury arose out of the employment is to be resolved in favor of the employee." Id.; see also Beck, 779 S.W.2d at 371.

Further, Justice Frank Drowota, writing for the Court in Braden, concluded that "while we approve of the street risk doctrine as an aid to evaluate the causal relationship between certain injuries and employment, we caution that `each case must be decided with respect to its own attendant circumstances and not by resort to some formula.'" 833 S.W.2d at 499 (emphasis added) (quoting Bell v. Kelso Oil Co., 597 S.W.2d 731, 734 (Tenn. 1980)). Even though the Court applied the street risk doctrine in Braden, the quoted language, I believe, also stands for the proposition that the doctrine need not be invoked when the circumstances of the case establish, even if marginally so, a causal connection between the assault and the employment.

Finally, unlike the majority, I view the street risk doctrine as either an augmentation of the basic claim or an alternative basis for recovery under these facts. As an initial matter, the street risk doctrine may be applied to injuries which occur at the place of employment as well as those on the "streets." See Hurst v. Labor Ready, 197 S.W.3d 756 (Tenn. 2006); Jesse v. Savings Prods., 772 S.W.2d 425 (Tenn. 1989). Further, the fact that Xelica did not engage in retail sales is not a valid reason to refuse application of the street risk doctrine to these circumstances. While explaining the nature of the street risk doctrine, this Court in Hurst observed that "workers whose employment exposes them to the hazards of the street, or who are assaulted under circumstances that fairly suggest they were singled out for attack because of their association with their employer, are entitled to establish this causal connection with the aid of the street risk doctrine." 197 S.W.3d at 761 (quoting Braden, 833 S.W.2d at 499). In Hurst, while the employee waited outside his employer's building to be paid, a manager refused to allow a passerby into the building to use a restroom in accordance with company policy. 197 S.W.3d at 758-59. A dispute ensued, and the employee was shot and killed. This Court concluded that Hurst was "singled out for attack because of [his] association" with his employer due to the fact that he was readily identifiable as an employee and the shooting "stemmed from" Labor Ready's enforcement of its own policies. Id. at 761-62.

The case before us presents an even stronger claim than that in Hurst. When an employee, who is authorized to open business operations in a location particularly vulnerable to criminal activity, is shot and killed by an assailant who had gained entry into the premises by means unknown, surely his family is entitled to benefits. Under circumstances such as these, an employee should expect workers' compensation coverage.

In summary, I believe that the circumstantial evidence in this instance is sufficient for this Court to resolve "reasonable doubt" as to causation favorably to the employee. The remedial nature of the statute would justify that. Further, the street risk doctrine, in my view, provides either an "aid" justifying the claim or an alternate basis for recovery. In Larson's Workers' Compensation, the author addresses occasions when an assault occurs for which there is no explanation or cause, and "even with all the facts available, no one can figure out why the assault was committed. Nothing connects it with the victim privately; neither can it be shown to have had a specific employment origin." 1 Arthur Larson Lex K. Larson, Larson's Workers' Compensation, Desk Edition § 8.03[3], at 8-44 (2008). This treatise suggests the following remedy:

If the claimant is in fact exposed to that assault because he or she is discharging employment duties at that time and place, there is no better reason here than in the unexplained-fall or death cases to deny an award merely because claimant cannot positively show that the assault was motivated by something connected with the work. Although the cases are more evenly divided on unexplained assaults than on unexplained falls or deaths, there is now a demonstrably larger body of authority for awarding compensation on these facts than for denying it.

Id. (emphasis added). By the ruling today, this Court appears to have adopted the minority view among the states that have considered the issue. Finally, as to the street risk doctrine, the following language addresses the three kinds of risks identified in the majority opinion, but offers a more preferable result:

There are thus three categories of risk; but unfortunately, there are only two places where the loss may fall — on the industry or on the employee. And so the question becomes, which bears the burden of this in-between category of harms?

. . . [T]he usual answer in the past has been to leave this loss on the employee, on the theory that he or she must meet the burden of proof of establishing affirmatively a clear causal connection between the conditions under which the employee worked and the occurrence of the injury. More recently, however, some courts have reasoned in the following vein: Either the employer or the employee must bear the loss; to show connection with the employment, there is at least the fact that the injury occurred while the employee was working; to show connection with the employee personally there is nothing; therefore, although the work connection is slender, it is at least stronger than any connection with the claimant's personal life.

Id. § 4.03, at 4-3 (emphasis added). I agree with this assessment. While the connection between the death of Sanchez and his work perhaps qualifies as slender, surely the evidence creates "reasonable doubt" as to cause, because there was no connection whatsoever to his personal life.

For all of these reasons, I must respectfully dissent from the opinion of the majority.

Ana R. PADILLA v. TWIN CITY FIRE INSURANCE COMPANY.

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