TWCA Determines which Employer has Liability for Employee’s Injuries

GAIL TUTEN v. JOHNSON CONTROLS, INC., ET AL. (TWCA August 25, 2010)

Employee developed carpal tunnel syndrome while employed as a factory worker by Johnson Controls, Inc. ("JCI"). After employee gave notice of her injury and received some treatment, Manufacturers Industrial Group ("MIG") bought the factory and became her employer. She had surgery on both arms and returned to work, but was then permanently laid off.

Employee brought an action against both JCI and MIG for workers' compensation benefits due to injuries sustained to her right and left hands and wrists. JCI and MIG each argued that the other should be liable for her workers' compensation benefits.

The trial court found that MIG was liable and awarded 48% permanent partial disability to both arms. MIG appealed. It contends that the trial court erred by assigning liability to it and by adopting the impairment rating of a physician chosen through the Medical Impairment Registry. MIG further argues that the award was excessive. We affirm the judgment of the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/tuteng_082510.pdf

TWCA Reviews Whether Trial Court Properly Apportioned Liability in a Case Involving Permanently-Disabling Injuries

ROY T. McGAHA v. COCKE COUNTY HIGHWAY DEPARTMENT ET AL. (TWCA August 25, 2010)

In this workers' compensation action, the employee, Roy McGaha, sustained a work-related back injury in June 2004, while employed by the Cocke County Highway Department. He was able to return to work, and his claim for benefits was settled within the one and one-half times impairment cap contained in Tennessee Code Annotated section 50-6-241(a). He alleged that he sustained a new compensable injury to his back in November 2007. The county denied the claim, asserting that Mr. McGaha did not sustain a new injury, but that his condition was the result of his earlier injury, and his remedy was, therefore, limited to reconsideration of his previous settlement.

The trial court held that a new injury occurred in 2007 and that Mr. McGaha was permanently and totally disabled as a result of it. The court assigned 76% of the liability for the award to the county and 24% to the Second Injury Fund. The county has appealed, asserting that the trial court erred by finding that Mr. McGaha sustained a new injury and by finding that he was permanently and totally disabled. The Fund asserts, on appeal, that the trial court used an incorrect method to apportion liability.

We affirm the award of benefits. We conclude, however, that the trial court did not use the correct method of apportioning liability between the Fund and the county. That portion of the order is vacated, and the case is remanded for further proceedings with regard to that issue.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mcgahar_082510.pdf

TWCA Reviews Whether Employee Timely Filed His Request for Assistance

JOE LYNN HUGHES v. ROBERT BRENT d/b/a APARTMENT MAINTENANCE SPECIALISTS, ET AL. (TWCA August 25, 2010)

In this workers' compensation action, the trial court granted the employer's motion for summary judgment on the grounds that the employee's claim was barred by the statute of limitations, Tennessee Code Annotated section 50-6-203, because the employee had not filed a request for benefit review conference within one year of the date of injury. The employee, Joe Lynn Hughes, has appealed, contending that the statute was tolled by his timely filing of a request for assistance. We agree, reverse the grant of summary judgment, and remand the case to the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hughesj_082510.pdf

TWCA Reviews Whether the Trial Court Properly Found Partial Permanent Disability and Awarded Benefits

BUILDERS MUTUAL INSURANCE COMPANY v. ROBERT W. DAUGHTREY (TWCA August 25, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.

The employee alleged that he sustained a compensable injury to his left arm. His employer denied the claim, contending that the injury was not caused by the employment, and also that the employee had failed to provide notice of his injury as required by the workers' compensation statute.

The trial court found that the injury was work-related, and awarded 60% permanent partial disability ("PPD") to the left arm. On appeal, the employer argues that the evidence preponderates against the trial court's findings on these issues, and that the trial court erred by failing to apply the missing witness rule as to the potential testimony of the treating physicians. We find no error, and affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/daughtrey_082510.pdf

Court Reviews a Motion to Set Aside a Judgment Approving a Settlement in a Workers’ Compensation Case

PATRICIA HENDERSON v. SAIA, INC. ET AL. (Tenn. Ct. App. August 24, 2010)

This workers' compensation appeal was initially referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Code Annotated section 50-6-225(e)(3). After oral argument was conducted before the Panel, but before the Panel filed its opinion, the case was transferred to the full Court in order to consider a request under Tennessee Rule of Civil Procedure 60.02 to set aside a judgment approving a settlement. The trial court found no basis for setting aside the settlement under Rule 60.02. Neither do we. The judgment of the trial court upholding the parties' settlement is affirmed.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hendersonp_082410.pdf

TWCA Reviews Whether the Trial Court had Jurisdiction to Compel Employer to Authorize a Medical Procedure

RICKY L. MAYES v. PEEBLES, INC. (TWCA August 23, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.

Ricky Mayes ("Employee") sustained a compensable injury to his spine. His claim against Peebles, Inc. ("Employer") was settled in accordance with the workers' compensation statute. His authorized treating physician subsequently recommended a surgical procedure. Employer's medical utilization review provider declined to approve the procedure.

After an initial administrative appeal was denied, Employee filed a motion in the trial court, seeking to compel Employer to authorize the procedure. The trial court granted the motion, and awarded attorney's fees to Employee. On appeal, Employer argues that the trial court did not have jurisdiction, because Employee did not exhaust his administrative appeals, and that the trial court erred by awarding attorney's fees. We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mayesr_082310.pdf

Court Reviews an Insurance Policy to Determine Whether it is Liable for Unpaid Medical Expenses Related to Patient’s Pre-Existing Condition

WELLMONT HEALTH SYSTEM v. JOHN QUINTON QUALLS, ET AL. (Tenn. Ct. App. August 20, 2010)

Plaintiff hospital filed a lawsuit against defendant patient for unpaid medical expenses. Defendant patient filed a third party complaint against defendant insurance company alleging that the insurance company was responsible for the unpaid medical expenses pursuant to a health insurance policy. After a bench trial, the trial court concluded that the insurance contract was ambiguous and construed it against the defendant insurance company. Defendant insurance company appeals.

After reviewing the record and the health insurance policy, we conclude that the policy was not ambiguous and the insurance contract specifically excluded coverage of patient's pre-existing condition. Accordingly, we reverse.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/wellmont_082010.pdf

TWCA Reviews Whether Employee Gave Sufficient Notice of his Injuries in His Initial Claim

RICK BOVEE v. HOME DEPOT, USA, INC. (TWCA August 18, 2010)

In this workers' compensation action, employee sought benefits for injuries to his hips, shoulders, and feet. The trial court awarded benefits for injuries to his shoulders and feet but found that he failed to give timely notice of his bilateral hip injuries to his employer and dismissed those claims.

Employee has appealed, contending that the trial court erred in finding that he did not provide timely notice of his hip injuries and that the complaint is barred by the statute of limitations. He requests that temporary disability, medical, and permanent disability benefits be awarded for those claims. Employer argues that the trial court erred in its calculation of the amount to be set off for social security retirement benefits.

We conclude that the employee gave sufficient notice of his hip injuries to satisfy the requirements of the workers' compensation statute. However, we find that those claims are barred by the applicable statute of Limitations. The judgment is affirmed in all other respects.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/boveer_081810.pdf

TWCA Reviews Whether Treatment Ordered Post-Judgment was Related to Employee’s Work Injury

JOHN FREEMAN v. GENERAL MOTORS CORPORATION (TWCA August 18, 2010)

The trial court granted the employee's post-judgment motion to compel his employer to provide certain medical treatment. The employer has appealed, contending that the trial court erred by finding that the proposed treatment was related to the work injury. We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/freemanj_081810.pdf

TWCA Reviews Whether Employee Met The Burden of Proof to Satisfy her Claim

BRENDA M. McGHEE v. HOLLAND GROUP OF TENNESSEE, INC. (TWCA August 18, 2010)

The Employee filed a workers' compensation claim against her Employer for back pain resulting from the aggravation and advancement of her degenerative disc disease, which she claimed had occurred from her injury while working on a brake line assembly. The trial court found that the Employee had not carried her burden of proof, and the Employee appealed.

Because the evidence does not preponderate against the findings of fact made by the trial court, the Special Workers' Compensation Appeals Panel, sitting in accordance with Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51, affirms the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mcgheeb_081810.pdf

TWCA Reviews Whether an Independent Contractor is Entitled to Workers’ Compensation Benefits

JOSEPH SCOTT RICHARDSON v. JAMES BROWN CONTRACTING, INC. d/b/a JAMES BROWN TRUCKING COMPANY ET AL (TWCA August 18, 2010)

The owner and operator of a tractor-trailer filed a workers' compensation claim against a common carrier for injuries that he incurred while attempting to verify a load to transport to another location. The trial court ruled that the owner/operator, while an independent contractor, was entitled to workers' compensation benefits by virtue of a written contract between the parties extending coverage, as permitted by statute. The trial court reserved judgment on the award and permitted an interlocutory appeal.

The Supreme Court granted the appeal and referred it to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the findings of fact made by the trial court, the judgment is affirmed. The cause is remanded to the trial court for the disposition of the remaining issues.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/richardsonj_081810.pdf

Court Reviews Whether Expert Proof is Required to Support a Medical Malpractice Claim Partially Based on Res Ipsa Loquitur

LORRAINE DEUEL, Individually and as Administratrix of the ESTATE OF CLYDE DEUEL, deceased v. THE SURGICAL CLINIC, PLLC and RICHARD J. GEER, M.D. (Tenn. Ct. App. August 17, 2010)

This is a medical malpractice case involving res ipsa loquitur. The defendant physician performed surgery on the plaintiff's husband. Sponges were used in the patient's abdomen during the procedure. Nurses in the operating room counted the sponges used in the surgery. The nurses erred in counting the sponges, and the defendant physician closed the surgical incision with a sponge remaining inside. The retained sponge was later discovered and removed in a second surgery. The plaintiff's husband subsequently died of causes unrelated to the retained sponge.

The widow sued the physician and his employer for medical malpractice, asserting that the doctrine of res ipsa loquitur applied, as well as the common knowledge exception to the requirement of expert medical proof. The physician filed a motion for summary judgment, and the plaintiff filed a cross-motion for summary judgment as to liability.

The defendant physician filed two medical expert affidavits, both of which stated that the defendant physician had complied with the applicable standard of care by relying on the nurses' sponge count. Initially, the plaintiff filed an expert affidavit stating that the defendant physician did not comply with the applicable standard of care, but later filed a notice stating that she intended to proceed to trial with no expert proof to support her medical malpractice claim.

The trial court determined that neither res ipsa loquitur nor the common knowledge exception applied, and granted summary judgment in favor of the defendant physician. The plaintiff now appeals. We reverse the grant of summary judgment in favor of the defendant physician, and affirm the denial of the plaintiff's motion for partial summary judgment. We find that, under both the common knowledge exception and the doctrine of res ipsa loquitur, the plaintiff was not required to submit expert proof to rebut the physician's expert testimony that he was not negligent by relying on the nurses' sponge count. However, application of neither res ipsa loquitur nor the common knowledge exception results in a conclusive presumption of negligence by the defendant physician. Therefore, a fact issue as to the physician's negligence remains for trial.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/deuell_081710.pdf

TWCA Reviews Whether Employee Met the Burden of Proof in Proving that He had Compensable Injuries

OTIS PATRICK v. SAFELITE GLASS CORPORATION, ET AL. (TWCA August 17, 2010)

The employee alleged that he had sustained a compensable injury to his back. His employer denied the claim due to discrepancies between his account of the event that caused the injury and certain medical records. The trial court found that the employee had failed to sustain his burden of proof, and dismissed the complaint. The employee appealed, contending that the evidence preponderates against that finding. We affirm the judgment of the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/patricko_081710.pdf

TWCA Reviews Whether an Employee was a Traveling Employee for the Purposes of Death Benefits

CAROLYNE PARK-PEGRAM ET AL., v. FINDLEY & PEGRAM COMPANY, INC. (TWCA August 17, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Emory Pegram ("Decedent") was the President of Findley & Pegram Company, Inc. ("Employer"). He died as a result of a motorcycle accident. Approximately ten minutes before the accident, he had made a bank deposit for the business. He thereafter drove past his office and home. Employer had no active projects in the direction Decedent was traveling at the time of the accident. There was, however, a potential future project in that direction. Decedent had not informed any co-workers or employees where he was going or for what purpose. He was carrying business documents, a business cell phone, and a tool.

The trial court concluded that he was a traveling employee at the time of the accident, and awarded workers' compensation death benefits to his widow. The trial court also awarded post-judgment interest for the five-month period between the announcement of the court's decision and entry of the judgment. Employer has appealed. We conclude that Decedent was not a traveling employee, but was acting in the course of his employment at the time of the accident. We further conclude that the workers' compensation statute does not authorize an award of interest prior to entry of the judgment. The judgment is modified to remove the award of post-judgment interest. It is otherwise affirmed.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/park-pegramc_081710.pdf

TWCA Reviews a Motion to Dismiss a Workers’ Compensation Claim

WAYNE MORAN v. FULTON BELLOWS & COMPONENTS, INC. (TWCA August 17, 2010)

Employee alleged that he sustained hearing loss as a result of his work for employer. He filed a civil action 94 days after an impasse was reached at a benefit review conference. The trial court granted employer's motion to dismiss on the basis of the 90-day statute of limitations, Tenn. Code Ann. section 50-6-203(g)(1) (2008). On appeal, employee contends that the report of the benefit review conference was never "filed with the commissioner" of Labor and Workforce Development as required by the statute and that the 90-day limitation period therefore never began to run. We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/moranw_0801710.pdf

TWCA Reviews an Award of Permanent Partial Disability

DONNA ISBELL v. JIMMY DEAN FOODS (TWCA August 16, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee alleged that she sustained a repetitive motion injury to her chest and back. Her employer denied liability. Three doctors testified concerning the issues of causation and permanency. The trial court found that the employee had sustained a compensable injury, and awarded 16% permanent partial disability ("PPD") benefits to the body as a whole.

On appeal, the employer contends that the trial court erred by awarding any benefits. The employee contends that the award is inadequate. We agree with the employee and increase the award to 30% PPD to the body as a whole and otherwise affirm the judgment of the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/isbelld_081610.pdf

Court Reviews Whether Appellant Proved that her Expert was Familiar with the Standard of Care in a Community Similar to that of the Defendant

TINA JOHNSON, ET AL. v. DAVID J. RICHARDSON, M.D. (Tenn. Ct. App. August 13, 2010)

This is a medical malpractice case. Plaintiff/Appellant appeals from the trial court's disqualification of her expert witness and grant of the Defendant/Appellee's motion for directed verdict. Finding that the Appellant failed to show that her expert was familiar with the standard of care in a community similar to the defendant's community, we affirm the decision of the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/johnsont_081310.pdf

KIRBY concurring
http://www.tba2.org/tba_files/TCA/2010/johnsont_CON_081310.pdf

TWCA Reviews Whether Employer was Properly Ordered to Provide Employee’s Medications

JOHN CRUMBY, JR. v. RURAL/METRO CORPORATION OF TENNESSEE (TWCA August 11, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. In 2001, the trial court found that Employee's coronary artery disease had been advanced by his employment. Medical benefits were awarded in accordance with the workers' compensation law. In 2007, a dispute arose between Employee and Employer as to whether certain medications and tests were related to the work injury. Employee filed a motion to compel Employer to provide the medications under the 2001 judgment. The trial court granted the motion, and ordered Employer to provide all of the medications at issue. On appeal, we conclude that the trial court erred by requiring Employer to provide medications for Employee's diabetes. We otherwise affirm the order.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/crumbyj_081110

Court Reviews Whether A Cause of Action Against an Employer Constitutes Negligence or a Workers’ Compensation Claim

MARY COLEMAN, ET AL. v. ST. THOMAS HOSPITAL (Tenn. Ct. App. August 5, 2010)

Plaintiffs filed suit against their employer, alleging common law negligence and negligent infliction of emotional distress due to their exposure to carbon monoxide in the workplace. The employer filed a motion for summary judgment, contending that Plaintiffs' tort claims were barred by Tennessee's workers' compensation law. The trial court denied the employer's motion for summary judgment, concluding that Plaintiffs' injuries did not "arise out of" their employment. The employer's application for an extraordinary appeal was granted. We reverse and remand for entry of an order granting summary judgment to the employer.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/colemanm_080510.pdf