TN Supreme Court Reviews a Workers' Compensation Award Based on a Rating Computed in a Settlement Agreement Rather than on a Physician's Assessment

ROBERT LAZAR v. J.W. ALUMINUM (Tenn. July 26, 2011)

An employee settled his claim for workers' compensation benefits. The settlement stated that the award of vocational disability benefits to which the parties agreed was not based on the medical impairment rating of either the treating physician or the employee's independent medical examiner.

After the employee was laid off, he sought reconsideration of his benefits pursuant to Tennessee Code Annotated section 50-6-241(d)(1)(B)(iv) (2008). The chancery court declined to use the impairment rating of the treating physician or the independent medical examiner. The court further declined to base its increased award on a rating from an independent medical evaluation of the employee conducted after the settlement by a physician listed in the Medical Impairment Rating registry of the Tennessee Department of Labor. The chancery court instead awarded additional permanent partial disability benefits based on an impairment rating computed from the percentage of permanent partial disability reflected in the settlement. The employer appealed. We affirm the chancery court.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/lazarr_072611.pdf

Court reviews a negligence case involving multiple continuances and a subsequent ruling against the Plaintiff based on comparative fault

FREDDIE DAVIS v. SHELBY COUNTY GOVERNMENT (Tenn. Ct. App. July 29, 2011)

This is a negligence action. Plaintiff/Appellant asserts that Defendant/Appellee is liable for personal injuries he allegedly sustained when he fell while walking down the steps at the Shelby County courthouse. Due to Appellant's incarceration, the trial court granted three continuances; however, Appellant's request for a fourth continuance was denied.

Following a hearing, the trial court found that Appellant had failed to meet his burden to show negligence on the part of the Appellee, and further concluded that, if there was negligence in the case, Appellant was at least fifty percent at fault so as to bar recovery. Appellant appeals both the denial of his fourth motion for a continuance and the trial court's ruling in favor of Appellee. Finding no error, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/davisf_072911.pdf

Court reviews a wrongful death case involving a claim for negligent infliction of emotional distress

JERRY GARRISON, et al., v. ANDY E. BICKFORD, et al. (Tenn. Ct. App. July 29, 2011)

Plaintiffs brought this action for the wrongful death of their son, and also for their damages arising from "negligent infliction of emotional distress." State Farm Mutual Insurance Company filed a Motion for Partial Summary Judgment on the grounds that its policy afforded no coverage for a negligent infliction of emotional distress. The Trial Court overruled the Motion but proposed a Rule 9 appeal, which this Court granted. We reverse the Trial Court on this issue and grant the summary judgment motion.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/garrisonj_072911.pdf

Court Reviews Whether a Drainage Grate Created a Dangerous Condition on a Highway

BETH L. WINELAND v. CITY OF CLEVELAND, TENNESSEE ET AL. (Tenn. Ct. App. July 28, 2011)

Beth L. Wineland, the sole plaintiff, sustained serious injuries when the front wheel of her bicycle fell into the open slots of a metal drainage grate ("the subject grate" or "the old style grate") situated near a curb of State Highway 60. The slots on the subject grate run parallel with the direction of traffic. The subject grate is inside the municipal boundaries of the City of Cleveland. The plaintiff made a claim against the State of Tennessee in the Claims Commission and filed this action against the City of Cleveland in the trial court. The claim against the State was consolidated with this action for trial. The plaintiff alleges that the old style grate constitutes a dangerous condition on the highway and that both the City of Cleveland and the State were negligent in maintaining the highway. The trial court determined that neither defendant had a duty to change the grate and dismissed the case. The plaintiff appeals only as to the State. We reverse the judgment and remand for a determination of damages.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/winelandb_072811.pdf

TWCA Reviews Whether Employee is Entitled to Partial or Total Temporary Benefits

JAMES E. STEM v. THOMPSON SERVICES, INC. ET AL. (TWCA July 26, 2011)

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 50-6-225(3)(3) (2008) for a hearing and report of findings of fact and conclusions of law.

The appeal involves a dispute regarding the type and amount of temporary benefits an employee working two jobs is entitled to following an injury at one of the employee's jobs. After sustaining a work-related injury that required the employee to discontinue one but not both of his jobs, the employee filed suit in the Circuit Court for Rutherford County.

After the trial court awarded temporary total disability benefits, the employer appealed and asserted that the employee was not entitled to temporary total disability benefits because he continued to work at his second job. We conclude that the employee is entitled to temporary partial, rather than temporary total, disability benefits and remand the case to the trial court to determine the amount of these benefits.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/stemj_072611.pdf

Court Reviews an Employee's Impairment Rating Based on His County-Employer's Workers' Compensation Plan

WILLIE J. HIGH v. SUMNER COUNTY, TENNESSEE (Tenn. Ct. App. July 25, 2011)

An employee of Sumner County was injured on the job and sought disability benefits pursuant to the Sumner County compensation plan. The employee's physicians initially gave him an anatomical impairment rating of 20%, but later determined that the employee was totally disabled and could not work. The County treated the employee's disability as a permanent partial disability and offered the employee a lower settlement than if the employee's disability were treated as a total permanent disability. The employee appealed the initial offer to the administrative review board, which upheld the initial offer of settlement.

The employee petitioned the chancery court for a writ of certiorari and asked the court to review the administrative decision and rule that it was arbitrary and capricious. The chancery court found the review board should have considered whether the employee was totally disabled based on the evidence in the record and remanded the case back to the review board for this purpose. The County appealed, and we affirm the trial court's decision. The plain language of the county plan does not support the administrative decision not to consider the employee's total disability in determining the compensation he is entitled to receive.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/highw_072511.pdf

TWCA Reviews an Award of Permanent Total Disability Benefits to an Employee Whose Physician Used the Medical Impairment Registry Process

COURIER PRINTING COMPANY ET AL. v. WANDA SIMS, EX REL ROBERT STEVE BLY ET AL. (TWCA July 21, 2011)

In this Workers' Compensation case, the trial court held that the employee had sustained a gradual injury to his lower back, and that he was permanently and totally disabled as a result of that injury. The employer has appealed, contending that the trial court erred by permitting the employee to use a physician who provided an impairment rating through the Medical Impairment Registry process as a medical expert on the issue of causation and by finding that the employee sustained a compensable injury. In the alternative, the employer contends that the trial court erred by awarding permanent total disability, and also in its alternative finding that the employee had proven three of the four elements set out in Tennessee Code Annotated section 50-6-242, and was thereby able to recover a permanent partial disability award in excess of six times the medical impairment. We find no error and affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/courierprinting_072111.pdf

TWCA Reviews whether an employee failed to timely file a request for a benefit review conference

DARRYL J. MAYTON v. WACKENHUT SERVICES, INC. (TWCA July 19, 2011)

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 issue presented in this case is whether the employee's request for a benefit review conference was filed more than one year after the employee had knowledge that his occupational disease was caused by his employment.

The trial court ruled that the employee's request was not timely and dismissed the case. After careful review, we hold that the evidence does not preponderate against the trial court's finding that Employee had knowledge that his illness was related to his employment more than one year before the filing of his request for a benefit review conference. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/maytond_071911.pdf

TWCA Reviews whether a physician's rating failed to comply with the AMA Guidelines and whether, therefore, the employee's award was excessive

JACQUELINE MORRIS v. JACKSON CLINIC PROFESSIONAL ASSOCIATION (TWCA July 19, 2011)

In this workers' compensation action, the employee sustained a compensable injury to her shoulder. Her initial treating physician assigned a 9% impairment to the body as a whole. After additional surgery, her subsequent treating physician assigned a 6% impairment to the body as a whole. An evaluating physician assigned a 17% impairment. The trial court chose the evaluating physician's impairment, and awarded the employee 25.5% permanent partial disability ("PPD") to the body as a whole. The employer has appealed, arguing that the evaluating physician's rating did not comply with the AMA Guides and that the award therefore is excessive. We affirm the judgment of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/morrisj_071911.pdf

'Due care' law went into effect July 1

A new state law that will levy penalties for failure to "exercise due care" while driving a motor vehicle went into effect July 1. According to the bill's sponsor, the law also makes it easier for those injured, or the survivors of those killed, to prevail in civil lawsuits by "making it clear that the law requires people in a car to exercise proper driving restraint around people on a bicycle and pedestrians."

The Murfreesboro Post has the full story, which you can read here: 'Sorry I Didn’t See You' is no longer a legal excuse

DuPont Sued Over Imprelis

A Michigan golf course has sued DuPont over the herbicide Imprelis. The suit alleges that the herbicide kills mature trees in and around landscaping. If you have had a similar issue you believe is related to Imprelis, call The Adams Law Firm. The firm is following consumer complaints about Imprelis and the EPA's investigation of the herbicide.

TWCA reviews whether an employer's motion for a medical examination is reasonable

PEFFERY IRONS v. K & K TRUCKING, INC. ET AL. (TWCA July 14, 2011)


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 sustained an injury which resulted in a court-approved workers' compensation settlement. His authorized physician later recommended medical treatment. The employer's utilization review provider denied approval of the proposed treatment. The employer filed a motion for a medical examination pursuant to Tennessee Code Annotated section 50-6-204(d)(1) which is required if reasonable. The trial court found the employer's request to be unreasonable and denied the motion. The employer has appealed. We reverse the trial court's order and remand for entry of an order granting the motion. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/ironsj_071411.pdf

TWCA reviews whether an employer could receive reimbursement of payments made prior to the execution of a compromise & release agreement

LIBERTY MUTUAL INSURANCE CO. ET AL. v. RICHARD WARNOCK ET AL. (TWCA July 14, 2011)



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 suffered an injury which the employer denied was in the course of employment. The employee filed a request for assistance with the Tennessee Department of Labor and Workforce Development. The Department ordered the employer to pay temporary disability benefits and medical expenses for the employee's injury pursuant to Tennessee Code Annotated section 50-6-238(a)(2)(3).

Subsequently the employer, its workers' compensation carrier and the employee entered into a compromise and release agreement in Pennsylvania pursuant to which the employee was paid $130,000. The employer filed this action against the employee and the Department of Labor requesting reimbursement of payments made pursuant to the Department's order, as permitted by section 50-6-238(b). The trial court granted the Department's motion for summary judgment and dismissed the action. We affirm the judgment.


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/libertymutual_071411.pdf

Bryan L. Capps Voted Top Attorney for Motorcycle Personal Injury Cases Cityview Magazine 2011

Bryan L. Capps of Knoxville has been named by Cityview Magazine one of Knoxville's top attorneys representing injured motorcycle riders.  Mr. Capps was recently named  President-Elect of the Tennessee Association for Justice (formerly the Tennessee Trial Lawyers Association).  He has spent his entire career representing seriously injured motorcycle riders from Tennessee and around the country.

Adams Law Firm Attorney Named President-Elect of Tennessee Association for Justice

Bryan L. Capps of the Knoxville-based Adams Law Firm has been named President-Elect of the Tennessee Association for Justice (formerly the Tennessee Trial Lawyers Association).  He will serve his one year term along with the new TAJ President Keith Williams of Lebanon, Tennessee.  TAJ
advocates for accountability and the constitutional rights of all citizens and works to protect civil justice in the state.

Court reviews whether employee's motion for medical treatment was reasonable under the circumstances

BARBARA ANN HARVILLE v. EMERSON ELECTRIC COMPANY (TWCA July 6, 2011)


The employee sustained a compensable injury to her arm in 2001. In 2003, she entered into a settlement with her employer that preserved her right to receive reasonable and necessary medical treatment for the injury. In April 2008, the employee's authorized treating physician recommended a diagnostic test. The employer submitted the recommendation to its utilization review provider, which declined to approve the recommended test. The employee and her physician were notified of the denial in May 2008.

In June 2009, the employee filed a petition for contempt seeking to have the trial court order the recommended test. The trial court treated the petition as a motion for medical treatment pursuant to Tennessee Code Annotated section 50-6-204(b)(2) (2008). The trial court found the recommended test to be reasonably necessary for the treatment of the injury, ordered the employer to authorize it, and awarded the employee attorney's fees. The employer appealed. We affirm the judgment of the trial court. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/harvilleb_070611.pdf

Court reviews whether a school resource officer exercised reasonable care when displaying graphic pictures in a case involving emotional distress

MARLA H., individually and as next best friend to her daughter MORIAH F. H. v. KNOX COUNTY, ET AL. (Tenn. Ct. App. July 1, 2011)



This is an action for negligent infliction of emotional distress. The mother of a middle school student filed suit against Knox County, the Knox County Board of Education, and the City of Knoxville after her daughter viewed graphic photographs of her dead father during a presentation on the dangers of drunk driving.

The trial court found the City of Knoxville liable for the student's emotional injuries because the school resource officer who distributed the photographs intended to evoke an emotional response. We conclude it was generally foreseeable that providing graphic accident scene photographs to seventh grade students could cause serious or severe emotional harm in a student related to a victim depicted therein. Thus, the school resource officer owed a duty to exercise reasonable care when displaying the photographs to a class that potentially included students related to the victims. The evidence, however, preponderates against the trial court's finding that the school resource officer failed to exercise reasonable care. We reverse the decision of the trial court.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/marlah_070111.pdf

40 Wrong Site Surgeries Per Week in the US

According to doctors, hospitals and health agencies, wrong site surgeries should never occur.  Yet an estimated 40 times per week a surgery occurs on the wrong limb, organ or other site in patients across the U.S.  Read how surgeons, nurses and hospitals are working to eliminate these errors which are the most blatant and easily avoided form of medical malpractice.