TWCA reviews whether an employee suffered a compensable injury that left him partially disabled

STEPHEN D. GOOD v. SUNKOTE PLASTIC COATINGS CORPORATION ET AL. (TWCA December 19, 2012)

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 sought workers' compensation benefits, alleging that he injured his back at work on September 30, 2008, and is now totally and permanently disabled. The employer denied that the employee sustained a compensable work-related injury, but alternatively argued that the employee is not totally and permanently disabled.

The trial court concluded that the employee sustained a compensable work-related injury and awarded 80% permanent partial disability benefits. The employer has appealed, arguing that the evidence preponderates against the trial court's finding that the injury was compensable and that, even if the employee proved a compensable injury, the evidence preponderates against the award of 80% permanent partial disability benefits. We affirm the trial court's judgment.

Opinion available at:
https://www.tba.org/sites/default/files/goods_121912.pdf

Court reviews a case involving an automobile accident

EDNA H. IRWIN, v. CHRISTOPHER MARTIN ANDERSON (Tenn. Ct. App. December 18, 2012)

Plaintiff received serious injuries in an automobile accident, when she turned left in front of the oncoming vehicle operated by defendant. The suit resulted in a jury trial wherein the jury returned a verdict for defendant, which was approved by the Trial Judge. On appeal, we affirm the Trial Judge's Judgment.

Opinion available at:
https://www.tba.org/sites/default/files/irwine_121812.pdf

Court reviews a case involving battery, intentional infliction of emotional distress, and business-related claims

SARAH HURST v. COLMAN S. HOCHMAN, ET AL. (Tenn. Ct. App. December 14, 2012)

Sarah Hurst ("Hurst") sued Colman S. Hochman ("Hochman") and Hochman Family Partners, L.P. ("the Partnership") alleging that Hochman had committed a battery upon her, and seeking damages for battery and intentional infliction of emotional distress among other things.

After a trial, the Trial Court entered its Final Decree that, inter alia, awarded Hurst damages of $2,500 against Hochman for battery; denied Hurst's claims for intentional infliction of emotional distress, discrimination under the Fair Housing Act, and punitive damages; and dismissed Hurst's claims against the Partnership. Hurst appeals raising issues regarding whether the Trial Court erred in denying her claim of discrimination under the Fair Housing Act and in dismissing her claims against the Partnership. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/hursts_121412.pdf

Court reviews whether the trial court had proper jurisdiction to review an administrative order from the Labor Department

C.H. GUENTHER & SON, INC. v. SUE ANN HEAD ET AL. (Tenn. Ct. App. December 10, 2012)

An employee appeals the trial court’s decision to void a final administrative order by the Department of Labor awarding the employee attorney fees with respect to the employee’s actions to enforce a workers’ compensation settlement. We have determined that the applicable request for assistance process does not constitute a contested case under the Uniform Administrative Procedures Act and that the trial court therefore lacked subject matter jurisdiction to hear this matter. We reverse the decision of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/chguenther.pdf

TWCA reviews whether an employee's injury was compensable.

SCOTT D. STRAIN v. MR. BULT’S, INC. ET AL. (TWCA November 29, 2012)

An employee alleged that he sustained an injury to his back. His employer denied the claim. The trial court found the injury to be compensable and awarded the employee 30% permanent partial disability benefits. The employer has appealed contending that the evidence preponderates against the trial court’s finding that the injury is compensable. On appeal, the employee asserts that the award of benefits was inadequate. After review of the record, we affirm the trial court’s judgment.

Opinion available at:
https://www.tba.org/sites/default/files/strains_112912.pdf

Court reviews a medical malpractice case re-filed by the original plaintiff's heir following her death

DARLA BULLOCK, as next of kin and sole surviving heir of Linda H. Lobertini v. UNIVERSITY HEALTH SYSTEMS, INC. (Tenn. Ct. App. November 27, 2012)

This is an appeal in a medical malpractice case. The original plaintiff, the decedent, filed the initial malpractice action against the defendant, but the case was dismissed after the decedent passed away during the pendency of the suit.

Her sole surviving heir re-filed the action without complying with Tennessee Code Annotated sections 29-26-121 and 122, which require a plaintiff who files a medical malpractice suit (1) to give a health care provider who is to be named in the suit notice of the claim sixty days before filing the suit, and (2) to file with the medical malpractice complaint a certificate of good faith confirming that the plaintiff has consulted with an expert who has provided a signed written statement that there is a good-faith basis to maintain the action. The defendant filed a motion to dismiss, and the trial court dismissed the case. The plaintiff appeals. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/bullockd_112712.pdf

Court reviews the appropriate classification of employees for worker's compensation insurance coverage

ADVANTAGE PERSONNEL CONSULTANTS, INC. v. TENNESSEE DEPARTMENT OF COMMERCE ET AL. (Tenn. Ct. App. November 27, 2012)

This matter involves a disagreement between an insurer and an insured over the proper classification of employees for the purpose of workers’ compensation insurance. The decision of the Department of Commerce and Insurance was in favor of the insurer. The insured appealed to the trial court, which affirmed the Department. We find that the decision of the Department of Commerce and Insurance is supported by substantial and material evidence and affirm the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/advantage_112712.pdf

TWCA reviews whether the right to reconsideration of a settlement is triggered by an across-the-board wage reduction

RON W. ROBINSON v. BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC (TWCA November 21, 2012)

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 pursuant to Tenn. Sup. Ct. R. 51.

The employee injured his neck in the course of his employment in 2005. He returned to work for his pre-injury employer and settled his claim subject to the one and one-half times impairment cap.

In 2009, the employer entered into a new collective bargaining agreement in which the hourly wages of all production workers were reduced. Thereafter, the employee sought reconsideration on his earlier settlement pursuant to Tenn. Code Ann. § 50-6-241(d)(1)(B) (2008). The trial court held that the across-the-board wage reduction did not trigger the right to reconsideration and denied the employee’s claim. We affirm the judgment.

Opinion available at:
https://www.tba.org/sites/default/files/robinsonr_112112.pdf

Court reviews competing claims to the proceeds of a life insurance policy.

STONEBRIDGE LIFE INSURANCE COMPANY, GWENDOLYN R. WILLIAMS v. ONZIE O. HORNE, III (Tenn. Ct. App. November 21, 2012)

This is an interpleader action resulting from competing claims to the proceeds of a life insurance policy. The trial court granted summary judgment to the Insured’s mother, finding that, because she was the only named beneficiary of the policy, she was entitled to the proceeds.

Insured’s husband appeals, arguing that, because Insured’s mother was only named as a contingent beneficiary, the default provisions of the policy remained in effect, resulting in him being the primary beneficiary of the policy. Husband also appeals the trial court’s dismissal of his bad faith claim against the insurer.

We affirm the dismissal of the bad faith claim, but conclude that the contract at issue is ambiguous and the issue in this case is not properly decided on summary judgment. Affirmed in part, reversed in part, and remanded.

Opinion available at:
https://www.tba.org/sites/default/files/williamsg_11212012.pdf

Court reviews the dismissal of a medical malpractice case based on the exclusion of expert testimony

SHIRLEEN NEVELS v. JOSEPH CONTARINO, M.D. ET AL. (Tenn. Ct. App. November 19, 2012)

The trial court dismissed this medical malpractice claim on the defendants’ motion for summary judgment and motion to dismiss, after excluding the testimony of the plaintiff’s expert witness. Because the trial court erred in its application of the locality rule and Rule 702 of the Rules of Evidence, we reverse.

Opinion available at:
https://www.tba.org/sites/default/files/nevelss_111912.pdf

Court reviews whether a child was a resident of a household for the purposes of insurance liability

COTTON STATES MUTUAL INSURANCE COMPANY v. JAMI McNAIR TUCK, ET AL. (Tenn. Ct. App. November 9, 2012)

An insurance company filed a declaratory judgment action seeking a declaration that mother and child were residents of the insured’s household, and therefore, that coverage for the death of the child was excluded by the relevant homeowner’s insurance policy. The chancery court found that mother and child were not residents of the insured’s household at the time of the child’s death, and we affirm.

Opinion available at:
https://www.tba.org/sites/default/files/cottonstates_110912.pdf

Court reviews whether a medical expert failed to identify the standard of care in a wrongful death case

BRENDA GRIFFITH, NEXT OF KIN OF DECEDENT, BOB GRIFFITH v. DR. STEPHEN GORYL AND UPPER CUMBERLAND UROLOGY ASSOCIATES, P.C. (Tenn. Ct. App. November 1, 2012)

In this medical malpractice, wrongful death action the plaintiff alleges the defendant physician, a urologist, failed to timely diagnose and treat the decedent’s bladder cancer which caused his death. At the close of the plaintiff’s case in chief, the defendant moved for a directed verdict.

The trial court held that the plaintiff’s only medical expert witness erroneously defined the standard of care and, upon that basis, excluded his testimony concerning the standard of care and breach thereof. With the exclusion of the plaintiff’s only expert testimony, the trial court held that the plaintiff failed to establish a prima facie case for medical malpractice and granted the motion for a directed verdict.

We have determined the plaintiff’s medical expert did not erroneously identify the standard of care, he is competent to testify and, thus, the trial court erred in excluding his testimony and directing a verdict in favor of the defendant. We, therefore, reverse and remand for a new trial.

Opinion available at:
https://www.tba.org/sites/default/files/griffithb_110112.pdf

Tennessee Supreme Court reviews an emotional distress case involving the mishandling of a corpse.

RONDAL AKERS ET AL. v. PRIME SUCCESSION OF TENNESSEE, INC. ET AL. (Tenn. October 26, 2012)

Dr. Rondal D. Akers, Jr. and Lucinda Akers sued T. Ray Brent Marsh for the alleged mishandling of their deceased son’s body, which had been sent to Mr. Marsh’s crematorium for cremation. Following a jury verdict for the Akerses, the trial court entered judgment against Mr. Marsh based on the intentional infliction of emotional distress claim but granted his motion for a judgment notwithstanding the verdict on the Akerses’ Tennessee Consumer Protection Act (“TCPA”) and bailment claims. The Court of Appeals affirmed.

We hold the trial court did not err in (1) holding Mr. Marsh liable for intentional infliction of emotional distress in the amount of the jury verdict; (2) instructing the jury that they were permitted to draw a negative inference resulting from Mr. Marsh’s invocation of his Fifth Amendment privilege during questioning; and (3) dismissing the TCPA and bailment claims. The judgments of the trial court and the Court of Appeals are affirmed.

Opinion available at:
https://www.tba.org/sites/default/files/akersr_COR_102612.pdf

Court reviews whether a collision occurred between the Plaintiff and a tractor-trailer

SHERRY HUTSON v. SAFE STAR TRUCKING ET AL. (Tenn. Ct. App. October 31, 2012)

In this case, Sherry Hutson filed a complaint in which she alleged her vehicle was struck by a tractor-trailer (“the tractor”) that left the scene of the accident. She seeks to recover under the uninsured motorist (“UM”) provisions of a policy providing coverage to the vehicle she was driving. The jury found that no “actual physical contact ha[d] occurred between” the plaintiff’s vehicle and the vehicle that left the scene. She appeals. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/hutsons_103112.pdf

Court reviews whether a municipality's 911 operator negligently failed to summon emergency personnel from a neighboring county

LORI GREGORY, IN HER CAPACITY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES BALLENTINE v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY (Tenn. Ct. App. October 29, 2012)

This is a negligence claim under Tennessee’s Governmental Tort Liability Act. The decedent was involved in a serious vehicular accident. A witness called the defendant municipality’s 911 emergency communications center for help. The 911 responders went to the accident scene and transported the decedent to a local hospital, where he died.

The decedent’s mother filed this lawsuit against the municipality, alleging that the 911 operator was negligent in failing to summon emergency personnel from a neighboring county, because those responders were closer to the scene of the accident and could have provided aid to the decedent sooner. The municipality filed a motion for judgment on the pleadings, arguing inter alia that it owed no duty to summon aid outside of its jurisdiction. The trial court granted the motion, and the plaintiff now appeals. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/gregoryl_102912.pdf

TWCA reviews whether the reconsideration of a settlement was barred by the statute of limitations

JOHN FREEMAN v. GENERAL MOTORS COMPANY ET AL. (TWCA October 22, 2012)

The employee sought reconsideration of workers’ compensation settlements concerning a back injury in 2003 and a right knee injury in 2006. The trial court granted the petition and increased the previous permanent partial disability awards to 30% to the body as a whole for the back injury and 100% to the leg for the knee injury.

The employer has appealed, contending that reconsideration of the back injury was barred by the statute of limitations, that the awards for both injuries were excessive, that the trial court incorrectly awarded benefits in excess of six times the anatomical impairment for the knee injury, and that the trial court erred by awarding benefits in a lump sum.

The employee contends that the trial court erred by failing to award permanent total disability benefits. We conclude that the employee’s petition for reconsideration of the settlement of his back injury was not timely filed and reverse that part of the judgment. We affirm the judgment in all other respects.

Opinion available at:
https://www.tba.org/sites/default/files/freemanj_102212.pdf

Court reviews whether a nurse assistant abused an elderly person in his care at a nursing home.

DANIEL A. RILEY, C.N.A. v. JOHN DREYZEHNER, M.D., M.P.H., IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE TENNESSEE DEPARTMENT OF HEALTH (Tenn. Ct. App. October 22, 2012)

Appellant nurse assistant’s name was placed on the Abuse Registry after the Appellee Tennessee Department of Health concluded that he had committed an act of abuse on an elderly person in his care at a nursing home. Appellant appeals, arguing that substantial and material evidence does not exist to show that he committed an act of abuse on the nursing home resident. Having determined that substantial and material evidence in the record supports the decision of the Tennessee Department of Health, we affirm.

Opinion available at:
https://www.tba.org/sites/default/files/rileyd_102212.pdf

Court reviews whether an auto insurance policy covers damages resulting from a car owner's independent acts of negligence in a case involving a car accident

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY ET AL. v. SOUTHERN TRUST INSURANCE COMPANY (Tenn. Ct. App. October 24, 2012)

This is a dispute between insurance companies over coverage related to a car accident. We conclude that the trial court erred in finding that the driver’s auto policy covered damages resulting from the independent acts of negligence of the car owner.

Opinion available at:
https://www.tba.org/sites/default/files/statefarm_102412.pdf

Court reviews a worker's compensation case involving a fraud upon the court

CHEYENNE DUFFER v. KEYSTOPS, LLC. (Tenn. Ct. App. August 1, 2012)

This appeal arises out of a personal injury suit, wherein the plaintiff and Dewayne Duffer filed suit against a trucking company for injuries suffered in an accident and for loss of consortium as a result of the accident. Plaintiff’s employer intervened to recover worker’s compensation benefits paid to plaintiff.

Soon thereafter, the trucking company discovered that plaintiff was male, had filed the action using an assumed female identity, and had lied throughout the discovery process. The trucking company filed a motion for summary judgment.

The court granted the motion and dismissed plaintiff’s and employer’s complaints, finding that plaintiff had committed a fraud upon the court and that employer had failed to file suit within the applicable statute of limitations because plaintiff’s complaint was rendered void ab initio. Plaintiff and employer appeal. We affirm the dismissal of plaintiff’s complaint but reverse the dismissal of employer’s complaint.

Opinion available at:
https://www.tba.org/sites/default/files/dufferc_080112.pdf

TWCA reviews the voluntariness of an employee's retirement and the extend of his disability for the purposes of awarding benefits

DANA AUTOMOTIVE SYSTEMS GROUP, LLC ET AL. v. LARRY EVANS (TWCA August 2, 2012)

An employee developed carpal tunnel syndrome. Before receiving medical treatment for that condition, he accepted an offer from his employer to resign in exchange for a lump sum payment of his retirement benefits. The offer was unrelated to the work injury.

The trial court granted the employer’s motion for partial summary judgment, finding that Tennessee Code Annotated section 50-6-241(d)(1)(A) (2008) limited the employee’s award of benefits to one and one-half times the anatomical impairment in light of his voluntary retirement.

On the date scheduled for trial, the trial court declined to hear evidence or permit an offer of proof concerning the voluntariness of his retirement and the extent of his vocational disability. Judgment was entered awarding permanent partial disability of one and one-half times the medical impairment. The employee has appealed. We vacate the judgment and remand the case to the trial court for a determination on the merits of the case.

Opinion available at:
https://www.tba.org/sites/default/files/danaautomotive_080212.pdf

Court reviews whether a medical expert's testimony was properly entered into evidence

BETTY FRANKLIN v. DURO STANDARD PRODUCTS CO., INC. (Tenn. Ct. App. August 1, 2012)

In this claim for workers’ compensation benefits, the trial court awarded permanent partial disability benefits to the employee for hearing loss. Her employer has appealed, contending that the trial court erred by admitting the testimony of the employee’s medical expert into evidence and by finding that her hearing loss was caused by her employment. We affirm the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/franklinb_080112.pdf

Court reviews whether an insurance company's refusal to pay insurance proceeds was made in bad faith

TONY WILLIAMS ET AL. v. TENNESSEE FARMERS LIFE REASSURANCE COMPANY ET AL. (Tenn. Ct. App. August 1, 2012)

This action was filed after the defendant, a life insurance company, denied payment of benefits on the grounds that the decedent/insured made material misrepresentations in her application for life insurance. The specific basis for the denial was that the insured allegedly failed to disclose “methadone treatment for a narcotic addiction.”

The trial court found there was no proof that the insured was taking methadone at the time of the application or that she was ever treated for “drug related problems.” On this basis, the trial court concluded the insured did not make any misrepresentations in her application for life insurance and ordered the defendant to pay the death benefit plus pre-judgment interest. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/williamst_080112.pdf

Court reviews an insurance company's refusal to pay proceeds based on misrepresentations made in the initial application for coverage

EDWARD G. ROCHELLE v. GRANGE MUTUAL CASUALTY COMPANY, ET AL. (Tenn. Ct. App. August 1, 2012)

This appeal results from the grant of summary judgment in favor of Appellee insurance company. Appellee denied Appellant’s claim for fire loss on the ground that Appellant made material misrepresentations in the application for insurance. The trial court determined that Appellant took contradictory positions in his examination under oath and in his discovery deposition on the question of whether his application for insurance was completed when he signed it, or whether he signed it in blank before it was completed by the insurance agent.

The trial court determined that Appellant’s inconsistent statements were not effective to create a dispute of material fact for purposes of summary judgment. We conclude that the motion for summary judgment was improperly granted. Reversed and remanded.

Opinion available at:
https://www.tba.org/sites/default/files/rochellee_080112.pdf

Court reviews the judgment of a libel and false light invasion of privacy case

DANIEL B. EISENSTEIN v. WTVF-TV, NEWS CHANNEL 5 NETWORK, LLC ET AL. (Tenn. Ct. App. July 31, 2012)

The plaintiff, a public official, sued the defendants for libel and false light invasion of privacy. The defendants filed a motion for summary judgment based on the truth of the statements. The plaintiff sought to complete discovery before the motion was heard. The trial court granted the defendants’ motion and plaintiff appealed. We affirm the grant of summary judgment as to the libel claims, but reverse the grant of summary judgment as to some of the false light claims.

Opinion available at:
https://www.tba.org/sites/default/files/eisensteind_073112.pdf

Court reviews a dispute between an insurance company and a trucking company involving over-the-road drivers

AMERICAN ZURICH INSURANCE COMPANY v. MVT SERVICES, INC., D/B/A MESILLA VALLEY TRANSPORTATION (Tenn. Ct. App. July 30, 2012)

This appeal involves retrospective insurance premiums on a workers’ compensation insurance policy. The defendant trucking company operates in several states, including Texas and Tennessee. Tennessee requires employers to maintain worker’s compensation insurance for certain employees, but Texas does not.

The defendant trucking company purchased workers’ compensation insurance for its Tennessee employees from the plaintiff insurance company. The trucking company employed over-the-road truck drivers who were Tennessee residents. The trucking company decided to classify its Tennessee-resident over- the-road drivers as Texas employees whose on-the-job injuries would not be covered by the Tennessee workers’ compensation insurance policy. Consequently, the trucking company did not pay insurance premiums to cover those employees.

The plaintiff insurance company conducted a retrospective premium audit; in the audit, it determined that the Tennessee- resident over-the-road drivers presented a risk of loss to the insurance company. Consequently, the insurance company notified the trucking company that it owed retrospective premiums based on those drivers. The trucking company refused to pay, so the insurance company canceled the insurance policy and filed this lawsuit for the retrospective premiums. The trial court granted summary judgment in favor of the insurance company, and the trucking company now appeals.

We affirm, finding under the undisputed facts that the Tennessee-resident over-the-road employees presented a risk of loss to the insurer under the workers’ compensation insurance policy during the relevant policy periods.

Opinion available at:
https://www.tba.org/sites/default/files/americanzurich_073012.pdf

Court reviews an allocation of fault in a case involving a motor vehicle accident

REBECCA W. FORD v. STATE OF TENNESSEE (Tenn. Ct. App. July 31, 2012)

Rebecca W. Ford (“Plaintiff”) sued the State of Tennessee (“State”) regarding a motor vehicle accident that resulted in the death of Plaintiff’s daughter, Lynsey M. Ford.

After a bench trial, the Trial Court entered its judgment finding and holding, inter alia, that the State had not violated Tenn. Code Ann. § 9-8-307(a)(1)(I) or § 9-8-307(a)(1)(J), and that the actions of Zachary L. Robinson were the sole proximate cause of the accident. Plaintiff appeals to this Court. We reversed the Trial Court’s judgment as to Zachary L. Robinson being solely at fault, and held that the State was 50% at fault for the Accident in our Opinion in Robinson v. State, docket No. E2011-01540-COA-R3-CV (“Robinson v. State”), released contemporaneously with this Opinion. We, therefore, remand this case to the Trial Court for the calculation of damages awarded to Plaintiff from the State for the death of Lynsey M. Ford.

Opinion available at:
https://www.tba.org/sites/default/files/fordr_073112.pdf

Court allocates the fault in a case involving a motor vehicle accident

WADE ROBINSON, ET AL. v. STATE OF TENNESSEE (Tenn. Ct. App. July 31, 2012)

Wade Robinson and Melanie Robinson (“Plaintiffs”) sued the State of Tennessee (“State”) regarding a motor vehicle accident that resulted in the death of Plaintiffs’ son, Zachary L. Robinson. After a bench trial, the Trial Court entered its judgment finding and holding, inter alia, that the State had not violated Tenn. Code Ann. § 9-8-307(a)(1)(I) or § 9-8-307(a)(1)(J), and that the actions of Zachary L. Robinson were the sole proximate cause of the accident.

We find and hold that the evidence preponderates against the Trial Court’s findings that the State did not violate Tenn. Code Ann. § 9-8-307(a)(1)(I), that the State did not violate Tenn. Code Ann. § 9-8-307(a)(1)(J), and that Zachary L. Robinson was the sole proximate cause of the accident. We find and hold that Zachary L. Robinson was 50% at fault for the accident and that the State was 50% at fault for the accident.

Opinion available at:
https://www.tba.org/sites/default/files/robinsonw_073112.pdf

TWCA reviews the award of workers' compensation benefits based on whether an employee had a meaningful return to work

JEFF KING v. GERDAU AMERISTEEL US, INC. (TWCA July 30, 2012)

An injured employee returned to work for his pre-injury employer. The employee was moved to a different area and worked fewer overtime hours because of his medical restrictions. The trial court held that the employee did not have a meaningful return to work pursuant to Tennessee Code Annotated section 50-6-241(d)(1)(A) (2008) and awarded permanent partial disability benefits in excess of one and one-half times the anatomical impairment. The employer appealed.

We hold that the employee had a meaningful return to work and that Tennessee Code Annotated section 50-6-241(d)(1)(A) limits the employee’s recovery to one and one-half times the anatomical impairment. We therefore modify the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/kingj_073012.pdf

TN Supreme Court reviews whether an employee's claim for workers' compensation benefits was barred by the statute of limitations

GERDAU AMERISTEEL, INC. v. STEVEN RATLIFF (Tenn. June 7, 2012)

An employee viewed the bodies of co-workers who had died as a result of work accidents on two separate occasions in February and April 2008. On June 23, 2008, the employee was diagnosed with post-traumatic stress disorder caused by the two incidents. On June 23, 2009, the employee requested a benefit review conference. The employer filed a complaint to determine the amount of workers’ compensation benefits due.

The employer subsequently filed a motion for summary judgment contending that the statute of limitations commenced on the date of the second accident and that the claim was therefore barred. The employee contended that the statute did not begin to run until the date of his diagnosis and that his claim was timely.

The trial court granted the employer’s motion. The employee appealed. We reverse the judgment of the trial court and remand the case for entry of a judgment consistent with the trial court’s alternative findings.

Opinion available at:
https://www.tba.org/sites/default/files/gerdau_060712.pdf

TN Supreme Court reviews whether an employee's injuries were compensable based on whether he refused to follow a safety rule

TROY MITCHELL v. FAYETTEVILLE PUBLIC UTILITIES (Tenn. May 8, 2012)

The trial court awarded workers’ compensation benefits to an injured lineman who had violated a rule requiring the use of protective gloves while in a bucket lift. The employer appealed, contending that the statutory defenses of willful misconduct and, more particularly, the willful failure or refusal to use a safety appliance or device precluded recovery.

The appeal was 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) (2008). After oral argument before the Panel, but before the Panel filed its opinion, the case was transferred to the full Court.

Because the evidence establishes that the employee admitted his knowledge of a regularly enforced safety rule, understood the rationale for the rule, and willfully (rather than negligently or recklessly) failed to comply, the injuries he suffered because of the rule violation are not compensable. The judgment of the trial court is, therefore, reversed and the case is dismissed.

Majority opinion available at:
https://www.tba.org/sites/default/files/mitchellt_050812.pdf

Justice Holder's dissenting opinion is available at:
https://www.tba.org/sites/default/files/mitchellt_DIS_050812.pdf

TWCA reviews whether an employee exhausted his administrative remedies after his employer denied approval for a surgical procedure

SAMMY T. ROBERTSON v. ROADWAY EXPRESS, INC. (TWCA June 8, 2012)

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 injured his lower back on August 22, 2005. The trial court approved a settlement of his workers’ compensation claim in 2008. The order approving the workers’ compensation settlement provided for future authorized medical treatment in accordance with Tennessee Code Annotated section 50-6- 204.

In January 2011, the employee’s treating physician recommended a surgical procedure. The employer’s medical utilization review provider determined that the medical necessity of the procedure was not documented, and the employer denied approval for the procedure. The employee appealed the decision to the Department of Labor and Workforce Development (“the Department”), and the Department’s medical director did not overturn the utilization review decision.

The employee then filed a petition in the trial court, seeking an order requiring the employer to authorize the surgery. The trial court granted the petition but denied the employee’s application for attorney’s fees. The employer has appealed, contending that the trial court erred by granting the petition, that the employee failed to exhaust his administrative remedy, and that the petition is barred by res judicata and collateral estoppel. The employee has appealed from the denial of an award of attorney’s fees. We vacate the judgment of the trial court and dismiss the case without reaching the merits of the appeal.

TWCA reviews whether an employee was eligible for reconsideration of a workers' compensation settlement

MARVIN WINDOWS OF TENNESSEE, INC. v. JAMES GARDNER (TWCA June 8, 2012)

The employee was injured in 2007 and returned to work for his pre-injury employer. The employee’s claim was settled in November 2007 and was subject to the one and one-half times impairment cap set out in Tennessee Code Annotated section 50-6-241(d)(1)(A). In July 2009, the employee was diagnosed with cancer, and he took a medical leave of absence.

The employee remained on leave for over one year. The employer’s policy permitted one year of medical leave. When the employee was unable to return to work in July 2010, he was terminated pursuant to that policy. The employee then sought reconsideration of the November 2007 settlement.

The trial court found that the employee was not eligible for reconsideration. The employee has appealed, contending that the trial court’s ruling was erroneous. We affirm the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/marvinwindows_060812.pdf

Court reviews a case against the city of Memphis involving the Public Duty Doctrine

SANDRA BELLANTI and ALBERT BELLANTI v. CITY OF MEMPHIS (Tenn. Ct. App. June 4, 2012)

Plaintiff was severely injured when a padlock, which was allegedly thrown from a City of Memphis mower, broke through her vehicle window. Plaintiff and her husband successfully sued the City. On appeal, the City argues, among other things, that the trial court erred in denying its motion to amend its answer to assert the affirmative defense of the Public Duty Doctrine.

Because the trial court’s order denying the City’s motion to amend fails to explain the basis for its denial, we are constrained to remand the case to the trial court for entry of a reasoned explanation of its actions regarding the City’s motion to amend its answer.

Opinion available at:
https://www.tba.org/sites/default/files/bellantis_060412.pdf

TWCA reviews an employee's motion for post-judgment medical treatment

CYNTHIA SIMMONS v. KEN-KEL MANAGEMENT, INC. ET AL. (TWCA June 1, 2012)

An employee filed a motion requesting that a former employer be ordered to provide postjudgment medical treatment. After a hearing, the trial court granted the employee’s motion. The former employer has appealed, contending that the trial court erred in granting the employee’s motion. We affirm the trial court’s judgment.

Opinion available at:
https://www.tba.org/sites/default/files/simmonsc_060112.pdf

Court reviews an award for damages in a wrongful death claim brought before the Tennessee Claims Commission

IN RE ESTATE OF CHARLES B. LEHMAN (Tenn. Ct. App. May 29, 2012)

Claimant filed a claim with the Tennessee Claims Commission to recover for the wrongful death of his father, a resident of Middle Tennessee Mental Health Institute; the Commission awarded damages for loss of consortium, pain and suffering, and medical and funeral expenses. Claimant appeals the amount of damages awarded for loss of consortium and pain and suffering. We affirm the damages awarded for loss of consortium and modify the award of damages for pain and suffering.

Opinion available at:
https://www.tba.org/sites/default/files/lehmanc_052912.pdf

Court reviews whether an Employer was entitled to use Tennessee's worker's compensation law in order to recover subrogation benefits

JANICE LACROIX, et al., v. L.W. MATTESON, INC., et al. (Tenn. Ct. App. May 29, 2012)

Deceased, a resident of Iowa, an employee of plaintiff, delivered materials to the State of Tennessee, and while the materials were being unloaded sustained injuries which resulted in his death, which arose out of the course and scope of his employment.

His widow could claim benefits either under the Iowa worker's compensation laws or the State of Tennessee worker's compensation laws, which contain essentially similar provisions. The widow claimed benefits under the Iowa worker's compensation law, and the employer under both laws was entitled to seek subrogation recovery for benefits paid from the alleged third party tort feasors. The State of Iowa would not have jurisdiction over some of the alleged tort feasors, and the employer brought his subrogation action in the State of Tennessee under the Tennessee worker's compensation statutes.

Defendants moved for summary judgment and the Trial Court concluded that since the claimant elected to sue under the Iowa worker's compensation statutory scheme, that the employer could not rely on the Tennessee worker's compensation statutes to maintain its action in Tennessee, and dismissed plaintiffs' action. On appeal, we hold that the employer was entitled to employ the Tennessee worker's compensation statute in an effort to recover subrogation benefits against the third party tort feasors.

Opinion available at:
https://www.tba.org/sites/default/files/lacroixj_052912.pdf

The Tennessean: Workers' Comp Changes Likely on Horizon

Tennessee companies could see a reduction in workers' compensation premiums later this year according to The Tennessean, depending on the outcome of complex negotiations over the rates doctors receive for treating workers' comp patients. Several business groups support the measure, saying that an overall rate reduction would help make Tennessee more competitive with neighboring states, but many in the health care community say cuts would hurt medical providers and even force some of them to stop treating patients. Gov. Bill Haslam chose not to tackle workers' compensation reform this year, but is exploring major changes. Many observers expect this will be a major issue for the legislature in 2013.

Read the full story at the Tennessean's website.

Court reviews a motion for a directed verdict in a medical malpractice case involving a permanent neurological impairment

DIANE R. CANNON KELLON and WILLIAM T. KELLON v. MARSHA LEE, M.D. and SEMMES-MURPHEY CLINIC (Tenn. Ct. App. May 21, 2012)

This is a medical malpractice case wherein a patient suffered permanent neurological impairment after delay of surgery to correct a ruptured disc in her spine. The patient sued the doctor who treated her at a minor medical clinic, and a neurological clinic, alleging that both failed to ensure that the patient was treated promptly. The jury found that the doctor did not breach the standard of care, but awarded damages against the neurological clinic.

The neurological clinic moved for judgment in accordance with a motion for a directed verdict on the ground that the patient failed to prove causation. The trial court granted the motion, as well as a conditional motion for new trial as to the neurological clinic only. The trial court concurred in the jury verdict in favor of the doctor.

We reverse the grant of the motion for judgment in accordance with a motion for a directed verdict and affirm the grant of a new trial as to the neurological clinic only. The jury verdict in favor of the minor medical clinic doctor, as concurred in by the trial court, is affirmed. Affirmed in part, reversed in part, and remanded.

Opinion available at:
https://www.tba.org/sites/default/files/kellond_052112.pdf

TWCA reviews whether an employee had a meaningful return to work an an award of temporary total disability benefits

DELTA FAUCET COMPANY v. JEFFREY NOLES (TWCA May 11, 2012)

An employee alleged that he sustained a work-related injury to his elbow and that his work aggravated his pre-existing carpal tunnel syndrome. His employer denied the claims, asserting that the employee’s elbow problem was related to a prior injury and that his carpal tunnel syndrome was not caused or worsened by his work. The trial court awarded benefits for both injuries.

The employer appealed, contending that the trial court erred in finding that the employee sustained a compensable injury to his elbow. The employer also contends that the trial court erred in finding that the employee’s carpal tunnel syndrome was compensable and that the employee gave proper notice of the carpal tunnel injury. The employer also appeals the trial court’s finding that the employee did not have a meaningful return to work, the award of temporary total disability benefits, and the amount of the award to the employee. We affirm the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/deltafaucet_051112_0.pdf

Dissenting opinion:
https://www.tba.org/sites/default/files/deltafaucet_DIS_051112_0.pdf

TWCA determines the apportionment of liability between an employer and the Second Injury Fund

VICKI MARSH v. FARRAR HOLLIMAN AND MEDLEY ET AL. (TWCA May 12, 2012)

The only issue before the trial court was the apportionment of liability between the employer and the Second Injury Fund. The employee had two compensable injuries prior to the injury that rendered her permanently and totally disabled. The trial court found that those injuries had caused 85% permanent partial disability. Based on that finding, it held the employer liable for 15% of the award and the Second Injury Fund liable for 85% of the award. We find that the trial court incorrectly applied Tennessee Code Annotated section 50-6- 208(a)(1)(2008), and modify the award accordingly.

Opinion available at:
https://www.tba.org/sites/default/files/marshv_051212.pdf

TWCA reviews whether an employer was permitted to file a reconsideration action in a case in which an employee returned to his pre-injury position

LOJAC ENTERPRISES ET AL. v. LEONARD J. KANIPE (TWCA May 10, 2012)

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 was injured on the job and was able to return to his pre-injury position. His initial workers’ compensation claim was settled after a benefit review conference. As a part of his settlement he retained a right of reconsideration pursuant to Tennessee Code Annotated section 50-6-241(d)(1) (2008). Subsequently, he lost his employment.

After an impasse at the benefit review conference, his employer filed this action to reconsider the employee’s benefits in the county where the injury occurred. The employee then filed a similar suit in the county of his residence.

The employee filed a motion to dismiss the employer’s action, contending that Tennessee Code Annotated section 50-6-241(d)(1)(B)(iv) does not permit an employer to file a reconsideration action. The employer contended that the statute did permit filing of a reconsideration action by an employer or in the alternative, the statute was unconstitutional. The trial court in the employer’s case granted the motion to dismiss and found the statute constitutional. The employer has appealed. We affirm the judgment.

Opinion available at:
https://www.tba.org/sites/default/files/lojac_051012.pdf

TWCA reviews the credibility of an employee's testimony and whether the injury arose out of the course of employment

KIEWIT-ACT, A JOINT VENTURE v. CHRIS JONES and CHRISTOPHER BRYON JONES v. KIEWIT-ACT, A JOINT VENTURE and ZURICH AMERICAN INSURANCE COMPANY (TWCA May 20, 2012)

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 has appealed the trial court’s denial of benefits for injuries to his right shoulder purportedly caused by a fall at work. The trial court denied the claim based on a finding that the employee’s testimony was not credible and that he failed to establish that his injury arose out of and in the course of his employment. The employee has also challenged the trial court’s award of $3,245.25 in discretionary costs to the employer. We affirm the trial court’s judgment.

Opinion available at:
https://www.tba.org/sites/default/files/kiewitact_051012.pdf

TWCA reviews whether an employee gave notice of his injury to his employer in a timely manner

MELVIN HILL v. WHIRLPOOL CORPORATION ET AL. (TWCA May 10, 2012)

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 accordance with Tenn. Sup. Ct. R. 51.

The employee filed a complaint in the Chancery Court for Coffee County seeking workers’ compensation benefits for his loss of hearing. Following a bench trial, the trial court concluded that the employee’s hearing loss was caused by his exposure to noise at the workplace.

Accordingly, the trial court awarded the employee $68,759.73 in permanent partial disability benefits after concluding that the employee had a vocational disability of 78% to his hearing. The court also awarded the employee his reasonable and necessary medical expenses and discretionary costs.

The employer raises two issues on this appeal: (1) whether the employee gave timely notice of his alleged injury; and (2) whether the employee failed to prove that his hearing loss was work-related. We hold that the trial court did not err in finding that the employee gave timely notice and that the employee proved his hearing loss was work-related. Accordingly, we affirm the trial court’s judgment.

Opinion available at:
https://www.tba.org/sites/default/files/hillm_051012.pdf

TWCA reviews whether a widow met the burden of proof in her request for death benefits

MARINE ACCESSORIES CORPORATION v. EDWINA WOODS (TWCA May 3, 2012)

In this workers’ compensation case, the employee sustained a compensable back injury for which he was prescribed medication. Approximately five weeks after his injury, the employee died from gastrointestinal bleeding. His widow sought workers’ compensation benefits, claiming that his death was compensable because it was caused by the medication he was prescribed for his work injury. The employer denied her claim, contending that the employee’s death was not caused by the medication, but was instead the result of esophageal varices caused by alcoholism and cirrhosis of the liver. The trial court held that the widow did not sustain her burden of proof, and she appeals. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/marineaccessories_050312.pdf

TWCA reviews an award of permanent partial disability benefits in a workers' compensation case

RANDALL NORWOOD v. MAYTAG CORPORATION d/b/a MAYTAG JACKSON DISHWASHING PRODUCTS (TWCA April 30, 2012)

In this workers’ compensation action, the employee contended that he struck his head against the casing of a conveyor belt, causing permanent and total disability due to a resulting cervical strain and mental injury. His employer denied that he sustained any permanent disability as a result of the incident. The trial court awarded 95% permanent partial disability benefits. The employer has appealed, contending that the evidence preponderates against the trial court’s finding. We affirm the judgment.

Opinion available at:
https://www.tba.org/sites/default/files/norwoodr_043012.pdf

Court reviews a motion for summary judgment in a medical malpractice case

WILLIAM MISE, ET. AL. V. METHODIST MEDICAL CENTER OF OAK RIDGE, ET. AL. (Tenn. Ct. App. April 23, 2012)

This is an appeal from the grant of summary judgment in a medical malpractice case. Virginia Mise was admitted to Methodist Medical Center of Oak Ridge following complaints of abdominal pain, nausea, and vomiting. She was diagnosed with chronic renal failure. Several days later, she died following a medical procedure.

Her sons filed suit, alleging that Virginia Mise’s treating physicians and nurses failed to comply with the requisite standard of care, causing her death. Methodist Medical Center of Oak Ridge and the treating physicians filed motions for summary judgment. The trial court granted the motions for summary judgment. We affirm the grant of the motions for summary judgment.

Opinion available at:
https://www.tba.org/sites/default/files/misew_042312.pdf

Court reviews a remittitur in a case involving an automobile accident

KAREN JOHNSON v. BEVERLY NUNIS AND FARMER’S INSURANCE EXCHANGE (Tenn. Ct. App. April 27, 2012)

This appeal involves remittitur of a jury verdict. The defendant driver caused a vehicular accident that resulted in substantial personal injuries to the plaintiff. At trial, several witnesses testified to the amount of the plaintiff’s economic damages as well as the noneconomic impact of her injuries. After a trial, the jury returned a special verdict with awards for various categories of economic and non-economic damages.

The trial court denied the defendant insurance company’s motion for a new trial but suggested an overall remittitur as to the total verdict. The plaintiff accepted the remittitur under protest and filed this appeal. We affirm the denial of a new trial, reverse the suggestion of remittitur, and reinstate the original jury verdict.

Opinion available at:
https://www.tba.org/sites/default/files/johnsonk_042712.pdf

Court reviews the limitation of liability in an insurance policy in a case involving a city volunteer

PAUL VINCENT GIANNINI v. AMANDA PROFFITT (Tenn. Ct. App. April 27, 2012)

This appeal involves a limitation of liability in an insurance policy. The plaintiff was working in a volunteer capacity for the city. While doing so, the plaintiff sustained injuries in an accident caused by the negligence of the defendant. The plaintiff’s medical expenses were paid through the city’s on-the-job-injury program. The plaintiff had uninsured motorist coverage under his insurance policy with the appellee insurance company.

The appellee insurance company denied the plaintiff’s claim based on language in the policy reducing the insurance company’s liability by sums paid under laws similar to workers’ compensation laws. The insurance company asserted that the city’s on-the-job-injury program was similar to workers’ compensation.

The plaintiff filed this lawsuit, and the plaintiff and the insurance company filed cross-motions for summary judgment on the issue of coverage. The trial court granted summary judgment in favor of the insurance company, finding that the plaintiff’s benefits under the city’s on-the-job-injury program were similar to workers’ compensation. The plaintiff now appeals. We affirm the grant of summary judgment, for the reason stated by the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/gianninip_042712.pdf

House GOP Pushing Med Mal as Budget Fix

Republican leaders in the U.S. House of Representatives have revived a medical malpractice bill that caps non-economic damages at $250,000 and limits contingency fees as a way to reduce the federal budget and avoid cuts in defense spending. The House passed the bill in March, even though President Barack Obama said he would veto it and House Democrats say it will be dead on arrival in the Senate. But the bill was revisited during budget discussions this week after the Congressional Budget Office estimated it would reduce federal healthcare costs.

Read the full story at The Blog of Legal Times

TN Supreme Court reviews whether plaintiff's proof of serious mental injury was sufficient to support a claim of intentional infliction of emotional distress

BETTY SAINT ROGERS v. LOUISVILLE LAND COMPANY ET AL. (Tenn. April 19, 2012)

In this appeal, the defendants seek a review of the trial court’s decision to award the plaintiff compensatory and punitive damages based on the tort of intentional infliction of emotional distress arising out of inadequate maintenance of the cemetery where the plaintiff’s son was buried.

To recover damages for intentional infliction of emotional distress, a plaintiff must prove that the defendant’s conduct was either intentional or reckless, was so outrageous that it is not tolerated by civilized society, and caused a serious mental injury to the plaintiff.

The primary question presented is whether the plaintiff in this action proved the requisite serious mental injury to support the trial court’s award of compensatory and punitive damages. We hold that the plaintiff’s proof was deficient. The judgment of the Court of Appeals is affirmed.

Opinion available at:
https://www.tba.org/sites/default/files/rogersb_041912.pdf

Court reviews whether the requirement of a Certificate of Good Faith in medical malpractice cases violates due process and equal protection

SANDI D. JACKSON v. HCA HEALTH SERVICES OF TENNESSEE, INC., D/B/A CENTENNIAL MEDICAL CENTER ET AL. (Tenn. Ct. App. April 19, 2012)

This appeal arises from the dismissal of a medical malpractice action due to the plaintiff’s failure to provide a certificate of good faith.

All defendants filed Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss the medical malpractice action based upon Tennessee Code Annotated § 29-26-122(a), which provides: “If the certificate is not filed with the complaint, the complaint shall be dismissed, as provided in subsection (c), absent a showing that the failure was due to the failure of the provider to timely provide copies of the claimant’s records requested as provided in § 29-26-121 or demonstrated extraordinary cause.”

Because the plaintiff failed to make a showing that the omission was due to the failure of any healthcare provider to provide records or demonstrate extraordinary cause, the trial court granted the motions and dismissed the case.

The plaintiff asserts on appeal that the statutory requirement violates the separation of powers clause and that it violates the due process and equal protection guarantees of the constitution of Tennessee by treating plaintiffs in suits for medical negligence differently from plaintiffs in other civil litigation and by allegedly restricting access to the courts. Finding no constitutional infirmities, we affirm.

Opinion available at:
https://www.tba.org/sites/default/files/jacksons_041912.pdf

Court reviews a medical malpractice involving permanent injuries sustained by an infant during surgery

MICHAEL H. GAW, ET AL. v. THE VANDERBILT UNIVERSITY, ET AL. (Tenn. Ct. App. April 20, 2012)

This is an appeal from a jury verdict in a medical malpractice case. A surgeon performed a procedure on an infant to repair a birth defect at the defendant hospital. The infant sustained permanent injuries after the surgery. The parents filed suit on the infant’s behalf against the hospital for failing to adhere to the expected standard of care.

At the conclusion of trial, the hospital moved for a directed verdict on all claims, with only the claims for informed consent and post-operative negligence being denied. The jury entered a judgment in favor of the infant. The hospital has appealed. We affirm the trial court’s judgment.

Opinion available at:
https://www.tba.org/sites/default/files/gawm_042012.pdf

Court reviews a GTLA claim against Berry Hill in a case involving a construction accident

JOHN DURLING KEMPER v. JOE C. BAKER, INDIVIDUALLY AND IN HIS CAPACITY AS CITY MANAGER OF BERRY HILL, TENNESSEE ET AL.(Tenn. Ct. App. April 20, 2012)

This is a GTLA action against a city and city official following a construction accident in which an exterior wall of a building collapsed, causing serious injuries to one of the plaintiffs and causing the death of the other plaintiff. The building was being demolished and the plaintiffs were employed by a private company that was to disconnect gas utilities on the privately owned building.

The plaintiffs claim the collapse was caused, in part, by the failure of the city and the city manager to enforce certain OSHA regulations and provisions of the municipal building code. The trial court dismissed the plaintiffs’ claims against the city and the city official on the defendants’ motion for summary judgment based on governmental immunity. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/kemperj_042012.pdf

TWCA reviews whether an employee's degenerative disk disease was caused by her employment

SANDRA M. BUTTREY v. ALTRIA GROUP, INC. (TWCA April 24, 2012)

The employee had degenerative disk disease for a number of years prior to April 2009, when she reported to her employer that she was experiencing significantly increased neck pain and symptoms, and she sought treatment. The employer denied the employee’s claim for workers’ compensation benefits. The trial court credited the testimony of the employee and of one of the treating physicians and awarded the employee 28.5% permanent partial disability to the body as a whole. The employer appeals, asserting that the employee’s injury was not caused by her employment. We affirm the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/buttreys_042412.pdf

Court reviews an order to exclude an expert witness based on the locality rule in light of the Shipley opinion

VIVIAN KENNARD v. METHODIST HOSPITALS OF MEMPHIS a/k/a METHODIST HEALTHCARE MEMPHIS HOSPITALS, ET AL. (Tenn. Ct. App. April 18, 2012)

Plaintiff filed a medical malpractice action against the Anesthesia Defendants, among others. Prior to trial, one of Plaintiff’s experts, Dr. McLaughlin, was excluded for failure to meet the requirements of the locality rule. Plaintiff proceeded to trial, and a jury verdict was rendered in favor of the Anesthesia Defendants. Plaintiff now appeals the expert’s exclusion and the subsequent jury verdict.

In light of our previous vacation of the order excluding Dr. McLaughlin in Kennard 2, we remand this case to the trial court for reconsideration of Dr. McLaughlin’s qualifications in light of Shipley.

If the trial court determines that Dr. McLaughlin meets the requirements of the locality rule, as set forth in Shipley, it shall then consider whether he, as an OB-GYN, may testify against the Anesthesia Defendants.

Finally, if the trial court determines that Dr. McLaughlin is competent to testify, it shall then determine whether his erroneous exclusion warrants a setting aside of the jury verdict rendered in favor of the Anesthesia Defendants.

Opinion available at:
https://www.tba.org/sites/default/files/kennardv_041812.pdf

TWCA reviews whether an employee was permanently and totally disabled as a result of her injury

KATHY JOHNSON v. YOON INVESTMENTS, L.L.C. ET AL. (TWCA April 12, 2012)

The trial court found that the employee had sustained a compensable injury in October 2005 and that she was permanently and totally disabled as a result of the injury. It also found that the employee’s hospitalization in November and December 2009 was related to her work injury and ordered her employer to pay associated medical expenses.

On appeal, her employer contends that the trial court erred by finding that the employee was permanently and totally disabled and that the 2009 medical expenses were related to her work injury. We affirm the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/johnsonk_041212.pdf

Court reviews a jury award in a products liability case

AUNDREY MEALS, as Natural Parent, Guardian, and Next Friend of WILLIAM MEALS v. FORD MOTOR COMPANY (Tenn. Ct. App. April 13, 2012)

Following a seven week trial, the jury returned a verdict in favor of Plaintiff in this products liability action. The jury awarded compensatory damages in excess of $43 million, and assessed 15 percent fault against Defendant car manufacturer. Defendant appeals. We affirm the jury verdict with respect to liability but remand with a suggestion of remittitur.

Opinion is available at:
https://www.tba.org/sites/default/files/mealsa_041312.pdf

Kirby's dissenting opinion is available at:
https://www.tba.org/sites/default/files/meals_DIS_041312.pdf

Court Rules for Insured After Agent's Mistake

The Tennessee Supreme Court ruled today that an insurance company must provide vehicle liability insurance coverage to the insured as he requested from his insurance company’s agent but did not receive because of a mistake by the agent. Learn more from the Administrative Office of the Court about Allstate Insurance Company v. Diana Lynn Tarrant and read the dissenting opinion from Justice William Koch and Chief Justice Cornelia Clark.

TN Supreme Court reviews whether an insurer properly changed a policy from a commercial policy to a personal policy

ALLSTATE INSURANCE COMPANY v. DIANA LYNN TARRANT ET AL. (Tenn. March 26, 2012)

After an automobile accident between the insured’s van and a motorcycle, the insurer filed a declaratory judgment action to determine whether the van was covered under a commercial policy with a liability limit of $500,000 or a personal policy with liability limits of $100,000 per person and $300,000 per accident. The insurer alleged that before the accident the insured had instructed his insurance agent to transfer the van from the commercial policy to the personal policy. The insured denied this and alleged that he had instructed the agent to retain the van on the commercial policy.

The trial court ruled that because the insurer had sent the insured a letter and premium bills showing the change in coverage and the insured had paid the bills without objection, he had ratified the transfer and the van was covered under the personal policy. The Court of Appeals reversed.

We hold that the action of the insurance agent in transferring the van to the personal policy was not subject to ratification by the insured because the insurance agent was not acting in the insured’s stead or for his benefit when it made the transfer. We further hold that the insurer is estopped from denying coverage under the commercial policy. We affirm the judgment of the Court of Appeals, although on different grounds.

Opinion available at:
https://www.tba.org/sites/default/files/allstate_032612.pdf

Koch, dissenting opinion:
https://www.tba.org/sites/default/files/allstate_DIS_032612.pdf

Court reviews a legal malpractice claim arising from a breach of contract dispute

CARDIAC ANESTHESIA SERVICES, PLLC v. JON JONES (Tenn. Ct. App. April 2, 2012)

This case involves the application of the statute of limitations to a legal malpractice action.

Appellee attorney drafted a contract for Appellant medical provider; the contract contained a fee-split clause in contravention of Tennessee Code Annotated Section 63-6-225. When the other party to the contract, a hospital, allegedly breached the contract and sued the medical provider, the medical provider counterclaimed for breach of contract. The hospital answered the complaint and filed a motion for summary judgment, asserting that the contract was illegal and unenforceable.

The trial court ruled that Tennessee Code Annotated Section 63-6- 225 did not apply to the contract at issue. A jury returned a verdict in favor of the medical provider for more than one million dollars.

The Court of Appeals reversed, holding that Tennessee Code Annotated Section 63-6-225 invalidated the contract, and remanded the case for dismissal. Within one year of the Court of Appeals opinion, the medical provider filed this legal malpractice case against the drafting attorney. The trial court dismissed the case as beyond the one-year legal malpractice statute of limitations. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/cardiacanesthesia_040212.pdf

Court reviews whether a decedent's insurer could be sued in a case involving an automobile accident

OSCAR H. VAUGHN v. JAMES D. MORTON (Tenn. Ct. App. March 28, 2012)

This is a personal injury action filed by Oscar H. Vaughn (“the Plaintiff”) against James D. Morton (“the Deceased”) that arose out of an automobile accident. The Deceased died within a year of the accident. The Deceased’s insurer, acting pursuant to its rights under the policy to “defend” an action against its insured, filed a motion to dismiss asserting that the only proper defendant was the personal representative of the Deceased and that the statute of limitations had expired prior to any attempt to make the representative a party to this litigation.

The trial court denied the Plaintiff’s motion to amend to add the personal representative as a defendant, which motion was filed after the expiration of the statute of limitations. The trial court granted the insurer’s motion to dismiss. The Plaintiff appeals. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/vaughno_032812.pdf

TWCA reviews a decision to base an award on an MIR physician's rating

MARY D. COLE v. MARVIN WINDOWS OF TENNESSEE (TWCA March 22, 2012)

An employee sustained a compensable injury to her hand and elbow. Employee’s authorized treating physician assigned an impairment rating of 1% to both her right and left arms. The employee’s evaluating physician assigned 16% impairment to her right arm and 15% to her left arm. Due to the disparity between the physician’s ratings, the parties selected a physician from the Medical Impairment Registry (“MIR”) who assigned 5% impairment to each of the employee’s arms. The trial court based its award of disability benefits on the MIR physician’s rating. The employee has appealed, contending that she successfully rebutted the statutory presumption of correctness given to the MIR physician’s rating. We affirm the trial court’s ruling.


Opinion available at:
https://www.tba.org/sites/default/files/colem_032212.pdf

Bill to Limit Doctor Liability Criticized

A bill that would give hospitals and emergency room doctors an additional layer of protection from law suits is being criticized for setting such a high standard for negligent behavior that there would be no accountability or protection for patients. Tennessee Association for Justice President Keith Williams said that if the bill passes, “In effect, a doctor would have no responsibility for careless errors that could ultimately cost you your life.”

Read more at the Knoxnews’ Humphrey on the Hill blog.

TWCA reviews whether an employee is entitled to permanent disability benefits and future medical benefits

TONY WAYNE WILSON v. BILL JENNINGS, INDIVIDUALLY AND D/B/A B &L CONSTRUCTION COMPANY AND WAYNE NEELEY (TWCA March 7, 2012)

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 this case, the employee alleged that he was working as a carpenter for the defendant, Wayne Neeley, when he fell from the roof of a house and seriously injured his right ankle. Neeley denied that he was the employer and also denied that he was a subcontractor for the defendant, B & L Construction, the general contractor.

The trial court held that the employee was employed by Neeley and that Neeley was a subcontractor of B & L Construction. Because Neeley did not have workers’ compensation insurance, the trial court found B & L Construction liable for workers’ compensations benefits pursuant to Tennessee Code Annotated section 50-6-113 and awarded both temporary total disability benefits and accrued medical expenses, but nothing else.

On appeal, the employee contends that the trial court erred by failing to award permanent disability benefits and future medical benefits. In response, the defendant contends that the trial court erred by awarding temporary disability benefits. We hold that the trial court properly awarded temporary total benefits, but erred by failing to award permanent disability benefits and future medical benefits to the employee. The judgment is reversed in part and the case is remanded for further proceedings.

Opinion available at:
https://www.tba.org/sites/default/files/wilsont_030712.pdf

TWCA reviews whether employee satisfied his burden of proof as to causation

TIMOTHY BYROM v. RANDSTAD NORTH AMERICA, L.P. (TWCA March 8, 2012)

The employee fell at work. He was then diagnosed to have a brain hemorrhage. The evidence showed that the fall occurred in an open area, that it was unlikely that the employee either slipped or tripped, and that he struck his head on the floor but not upon any objects. Employee had no recollection of the fall. The employer denied the employee’s workers’ compensation claim, asserting that the fall did not arise from his employment. The trial court found that the employee did not sustain his burden of proof as to causation. Employee has appealed, arguing that the evidence preponderates against the trial court’s finding. We affirm the judgment of the trial court. Opinion available at: https://www.tba.org/sites/default/files/byromt_030812.pdf

TWCA reviews whether an employee's injury was sustained within the scope of his employment

RONALD EADY v. COMMODORE EXPRESS, INC. ET AL. (TWCA March 8, 2012)

In this workers’ compensation suit, the employee, a truck driver, alleged that he sustained a compensable injury to his back. His employer denied that an injury occurred and further contended that, if an injury did occur, it did not arise from or in the course of his employment. The trial court held that the injury was the result of the employee’s attempted assault on a co-employee and, therefore, did not arise from his employment. The complaint was dismissed, and the employee has appealed, arguing that the trial court’s finding was in error. We affirm the judgment. Opinion available at: https://www.tba.org/sites/default/files/eadyr_030812.pdf

TN Supreme Court determines whether an employee had a meaningful return to work in a workers' compensation case

ROGER DALE WILLIAMSON v. BAPTIST HOSPITAL OF COCKE COUNTY, INC. (Tenn. February 28, 2012)

The employee, a certified nursing assistant, sustained an injury to his shoulder while moving a patient. Six months later, the employee returned to work with significant restrictions on the use of his right arm. After two weeks of on-the-job training as a phlebotomist, which offered a higher pay grade, the employee notified the employer of his resignation, believing that he would be unable to handle the duties associated with his new position.

When he made a claim for workers’ compensation benefits, the trial court, accrediting the testimony of the employee, held that he did not have a meaningful return to work and applied a multiplier of six to the assigned impairment rating.

A special workers’ compensation panel reversed, concluding that the evidence preponderated against the trial court’s ruling that the employee had not made a meaningful return to work and reducing the award to one-and-one-half times the impairment rating. Because the evidence demonstrates that the employee did have a meaningful return to work, the judgment of the panel is affirmed.

Opinion available at:
https://www.tba.org/sites/default/files/williamsonrd_022812.pdf

TWCA reviews when an employee's heart attack began and whether it was causally related to his employment

TIMOTHY D. CUNNINGHAM v. CITY OF SAVANNAH, TENNESSEE ET AL. (TWCA February 28, 2012)

The employee, an undercover drug investigator for the City of Savannah, alleged that he sustained a heart attack as a result of a physical confrontation with a suspect on March 2, 2005, during which he experienced tightness in his chest and shortness of breath. He experienced pressure in his chest and low energy but continued to work the following two days. On March 5, while engaged in activities unrelated to his job, he experienced nausea, profuse sweating, and severe pain in his chest, jaw, and left arm. His wife took him to a hospital emergency room where he was treated for an acute myocardial infarction.

At trial, one of his treating physicians testified that the heart attack began on March 2 and continued until March 5. A second treating physician and an evaluating physician testified that the March 2 incident did not cause the March 5 heart attack. The trial court found that the heart attack began on March 2, and the employer appealed.

On appeal, the employer 1 contends that the trial court erred in finding that the statutory presumption had not been overcome, erred in concluding that employee’s heart attack began on March 2, 2005, and erred by finding that employee’s heart attack was causally related to his employment. Although we agree that the trial court erred in its application of the statutory presumption, we affirm the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/cunninghamt_022812.pdf

TWCA reviews whether a nurse was totally and permanently disabled by neck and lower back injuries

VONETTA MOUSSEAU v. DAVITA, INC. (TWCA February 22, 2012)

The employee, a registered nurse, injured her neck and lower back when she slipped and fell in a pool of water. She had surgical fusions of the cervical and lumbar spine. She continued to have serious symptoms for which she received numerous medications. Her treating physician testified that she was incapable of performing any nursing functions, including those that required only sedentary work. The trial court found her to be permanently and totally disabled. Her employer has appealed, contending that the evidence preponderates against the trial court’s finding on disability and that the employee should be held to have been offered a meaningful return to work. We affirm the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/mousseauv_022212.pdf

Court reviews a workers' compensation claim brought against the TN Department of Labor and Workforce Development

ALSTOM POWER, INC., v. SUE ANN HEAD, ADMINISTRATOR, TENNESSEE DEPARTMENT OF LABOR & WORKFORCE DEVELOPMENT, WORKERS' COMPENSATION DIVISION, et al. (Tenn. Ct. App. February 21, 2012)


Plaintiff employer confronted with a worker's compensation claim by its employee filed an action for declaratory judgment, injunction relief, and a petition for certiorari against the Tennessee Department of Labor and Workforce Development and the employee. Plaintiff's principal contention was that the Department of Labor prepared an order for medical benefits directing the employer to provide the employee with additional panels of physicians from which he could choose for treatment, and concluded by averring that it was threatened with a $10,000 penalty if it did not comply.

The Trial Court initially issued a restraining order, but the Trial Court ultimately concluded that it did not have jurisdiction over the issues because suit had been filed before the administrative review process was exhausted. Plaintiff appealed and we affirm the Judgment of the Trial Court, and remand.

Opinion available at:
https://www.tba.org/sites/default/files/alstompower_022112.pdf

Court reviews whether the trial court properly allowed a medical expert from a non-contiguous state in a medical malpractice case

MARSHA McDONALD v. PAUL F. SHEA M.D. AND SHEA EAR CLINIC (Tenn. Ct. App. February 16, 2012)



This is a medical malpractice appeal. The plaintiff patient was treated by the defendant physician for ear problems. After the treatment, she had a complete loss of hearing in one ear. The plaintiff patient filed this lawsuit against the physician, alleging medical malpractice and lack of informed consent. After potential experts in Tennessee and contiguous states declined to testify against the defendant physician, the trial court permitted the plaintiff to use an expert physician witness from a non-contiguous state.

At the jury trial, after the jury was sworn and counsel gave opening statements, a juror notified the trial judge of the her concern about an upcoming social event she planned to attend, at which a relative of the defendant physician would be present. After voir dire, the trial judge noted that the plaintiff patient had unused remaining peremptory challenges and excused the juror. The trial court denied the defendant physician's motion for directed verdict on informed consent. The jury awarded the plaintiff substantial compensatory damages.

The defendant physician now appeals, arguing that the trial court erred in permitting the plaintiff to obtain an expert from a non-contiguous state, in allowing the plaintiff to exercise a peremptory challenge after trial was underway, in permitting the informed consent claim to go to the jury, and in denying the defendants' motion to exclude the expert retained by the plaintiff. We affirm on all issues except the dismissal of the juror. We hold it would be error to permit the exercise of a peremptory challenge after the trial is underway, but find that any error was harmless under the facts of this case. Therefore, we affirm.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2012/mcdonaldm_021612.pdf



HIGHERS, concurring in part and dissenting in part:

http://www.tba2.org/tba_files/TCA/2012/mcdonaldm_CON_021612.pdf

TWCA reviews whether an employee willfully violated his employer's safety rules

DANNEIL EDWARD KEITH v. WESTERN EXPRESS, INC. ET A (TWCA February 17, 2012)



The employee, a truck driver, was injured in the course and scope of his employment when his vehicle left the road and turned over. His employer denied his claim for workers' compensation benefits, contending that the accident and resulting injuries were the direct result of the employee's willful violation of the employer's safety rules. The trial court found that the employee had willfully and intentionally disregarded the safety rules and entered judgment for the employer. On appeal, the employee contends that the trial court erred because the evidence did not establish the perverseness of his conduct, a necessary element of the misconduct affirmative defense. We affirm the judgment.


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2012/keithd_021712.pdf

TWCA reviews whether the trial court adopted the proper impairment rating and found that

LARRY KENNETH HALE v. INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA ET AL. (TWCA February 17, 2012)



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 fell and struck both knees on a concrete landing in the course of his employment with the employer. His left knee required surgery and his right knee received limited medical treatment. The treating physician assigned 8% permanent impairment to the left leg. Employee's evaluating physician assigned 13% impairment to the left leg and 20% impairment to the right leg. The trial court adopted the evaluating physician's opinions and awarded 50% permanent partial disability to both legs.

Employer argues on appeal that the trial court erred by finding that Employee sustained a permanent injury to his right knee, by adopting the impairment rating of Dr. Landsberg over that of Dr. Gavigan for the left knee injury, by failing to find that Employee had a meaningful return to work, and by granting an excessive award of benefits. We affirm the judgment.


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2012/halel_021712.pdf

TWCA reviews whether employee's lung disease was aggravated by his exposure to smoke at work

GEORGE McGOWAN v. STATE OF TENNESSEE (TWCA February 16, 2012)



An employee was exposed to smoke as a result of a fire at his workplace. Testing revealed the presence of bullous emphysema, a dangerous condition caused by cigarette smoking. Surgery was required to treat that condition. The Claims Commission ruled that the smoke exposure at work had aggravated and advanced his preexisting lung disease and awarded permanent total disability benefits. The employer has appealed, contending that the evidence preponderates against the Commissioner's finding of causation. We agree and reverse the judgment.



Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2012/mcgowang_021612.pdf

TWCA Reviews whether a Sheriff's Deputy's injury occurred during an incident that was unusual or extraordinary for his profession

DOYLE ALLEN CASTLE v. SULLIVAN COUNTY SHERIFF'S DEPARTMENT (TWCA February 16, 2012)



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, a sheriff's deputy, alleged that he sustained a mental injury as a result of a confrontation that occurred while he was serving an eviction warrant. His employer denied the claim and filed a motion for summary judgment, contending that the injury was not compensable because the alleged precipitating event was not unusual or abnormal for a deputy.

The trial court granted summary judgment for the employer. On appeal, the employee contends that the trial court erred by concluding that there was not a genuine issue of material fact as to whether the incident in question was sufficiently extraordinary or unusual to support a mental injury claim. Because there is a genuine issue of material fact as to whether the injury qualified as extraordinary and unusual or was merely the result of stress ordinarily experienced in the line of duty, the judgment is reversed, and the cause is remanded for trial.


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2012/castled_021612.pdf

TWCA reviews whether employee adequately proved that his injury was work-related

KENNETH STEWART v. WESTFIELD INSURANCE COMPANY (TWCA February16, 2012)



The appellant insurance company asserts on appeal that the employee failed to prove that his spinal infection was causally related to any work-place injury and that he also failed to provide the employer with timely notice of his injury. Based upon our review of the record, we conclude that the expert medical proof establishes causation and that the evidence supports the trial court's finding that the employee gave timely notice of his injury. We affirm the judgment of the trial court.


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2012/stewartk_021612.pdf

TWCA reviews whether a taxi driver was an employee or an independent contractor

MOHAMUD HIRSI MOHAMED v. TAXI USA OF TENNESSEE, LLC d/b/a ALLIED CAR COMPANY ET AL. (TWCA February 10, 2012)



In this case, the plaintiff, a taxi driver injured in a motor vehicle accident, sought workers' compensation benefits from the taxi company that he alleged employed him. The trial court held that he was an independent contractor and dismissed the complaint. The plaintiff appealed. We affirm the judgment.

Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2012/mohamedm_021012.pdf

TWCA reviews whether an employee was eligible for the reconsideration of her workers’ compensation settlement.

ROCHELLE M. EVANS v. FORD MOTOR COMPANY (TWCA February 10, 2012)



The employee sought reconsideration of her workers' compensation settlement. The trial court found that she had voluntarily resigned and was therefore not eligible to receive reconsideration. The employee has appealed. We affirm the trial court's judgment.



Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2012/evansr_021012.pdf

Court reviews a medical negligence case involving injuries sustained during laser eye surgery

LEON DICKSON, SR. v. SIDNEY H. KRIGER, M.D. (Tenn. Ct. App. February 10, 2012)



This appeal arises from injuries Plaintiff sustained after undergoing laser corrective eye surgery. Plaintiff filed a complaint against Defendant alleging medical negligence. Subsequently, Defendant filed an amended answer alleging, inter alia, the affirmative defense of comparative fault.

Plaintiff filed a motion to strike portions of Defendant's amended answer, and following a hearing on the motion, Defendant agreed to the entry of a consent order waiving the defense of comparative fault.

Thereafter, Plaintiff filed motions in limine to preclude the testimony of two of Defendant's experts. Plaintiff argued that, because Defendant waived comparative fault, he could not use the causation testimony of the two experts to shift blame away from himself unless he first plead comparative fault under Rule 8.03 of the Tennessee Rules of Civil Procedure.

The trial court denied both motions. We granted permission for interlocutory appeal. We affirm in part, reverse in part, and remand for further proceedings.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2012/dicksonl_021012.pdf

TWCA reviews whether an employee was eligible for benefits in spite of his being a poor witness

TETON TRANSPORTATION, INC. v. TODD WHITE (TWCA February 7, 2012)

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 injured his back at work. His employer denied the claim.

While the trial court found that the employee was not a credible witness, it found that he had sustained a compensable injury based upon the testimony of an independent lay witness and the treating physician. The trial court awarded 78% permanent partial disability benefits. The employer has appealed, asserting that the evidence preponderates against the trial court's finding of compensability. We affirm the judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2012/teton_020712.pdf

Court reviews whether employee's injury was a work-related aggravation of a pre-existing injury and, thus, whether employer is liable

TAMMY L. LEE v. DURA OPERATING CORP., ET AL. (TWCA February 2, 2012)

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.

Tammy L. Lee ("Employee") alleges that she suffered an injury to her cervical spine while she was employed as a factory worker by Dura Operating Corporation ("Employer") . Employer denies that Employee's cervical spine injury was caused by her employment with Employer.

The trial court determined that Employee's cervical spine condition was a work-related aggravation of her pre-existing degenerative disc disease. The trial court awarded Employee temporary total benefits from November 8, 2007, to February 8, 2008. Finding that Employee had not been able to return to work, the trial court refused to apply the statutory cap and awarded Employee permanent partial disability benefits of 69% to the body as a whole, three times her anatomical impairment rating of 23% to the body as a whole. Finding that the evidence preponderates against the trial court's determination of causation, we reverse the trial court's judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2012/leet_020112.pdf

TWCA reviews whether an employee's injury was caused by her employment at a factory

MARIE AKINS v. WHIRLPOOL CORPORATION (TWCA February 1, 2012)

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. Marie Akins ("Employee") alleges that she developed carpal tunnel syndrome in her left wrist while employed as a factory worker by Whirlpool Corporation ("Employer"), prior to the closure of Employer's plant in August 2008. Employer denies that Employee's carpal tunnel syndrome in her left wrist was caused by her employment with it.

The trial court found that Employee's left-wrist carpal tunnel syndrome was not caused by her employment with Employer and that Employer therefore is not liable for this injury. Employee has appealed, contending both that the evidence preponderates against the trial court's finding and that Employer is estopped from denying liability based on delay in the diagnosis of Employee's carpal tunnel syndrome in her left wrist. We affirm the trial court's judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2012/akinsm_020112.pdf

Court reviews whether the trial court properly dismissed an uninsured motorist claim

SHAVON HURT v. JOHN DOE, ET AL. (Tenn. Ct. App. January 17, 2012)

Plaintiff filed a personal injury action arising out of a pedestrian-vehicle collision, naming as defendant the owner of the car that allegedly struck the plaintiff. After discovery, plaintiff amended the complaint to add "John Doe/Jane Doe" as a defendant and served process on her uninsured motorist carrier. Plaintiff subsequently settled with the named defendant and dismissed the action against that defendant; the uninsured motorist insurance carrier then filed a motion to dismiss the uninsured motorist claim. The trial court granted the motion, holding that, in light of the settlement, the uninsured motorist claim no longer existed and dismissed the case. We find that the court erred in dismissing the case.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/hurts_011712.pdf

Court reviews the allocation of fault in a case involving a mechanical bull accident

CHADWICK DAVID DORMAN MOYER v. NASHVILLE MIDNIGHT OIL, LLC, D/B/A CADILLAC RANCH (Tenn. Ct. App. January 12, 2012)

Plaintiff sued to recover for injuries sustained while riding a mechanical bull in a bar owned by Defendant. Defendant appeals the trial court's determination that it was 100% at fault and resulting judgment for plaintiff. Because the evidence does not preponderate against the trial court's findings, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/moyerc_011212.pdf

Court reviews whether a contractor can be held liable for injuries incurred in a car accident

JOSHUA N. LEE, v. LYONS CONSTRUCTION COMPANY, INC. (Tenn. Ct. App. January 10, 2012)

Plaintiff and others sustained injuries in a single car accident and sued defendant construction company and the Tennessee Department of Transportation, alleging that defendant construction company had recently completed work on that section of the highway where the accident occurred, and that a low point in the pavement caused plaintiff to lose control of his vehicle and wreck. Defendant answered, stating that they had completed the required construction on that section of the highway, and the State had accepted its work pursuant to Tenn. Code Ann. section 12-4-501 et seq. which provides upon proper completion of the work the contractor "is discharged from all liability to any party". Defendant filed a Motion for Summary Judgment which the Trial Court granted and plaintiff appealed. We hold that summary judgment for the defendant in this case was proper, and affirm the Judgment of the Trial Court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/leej_011012.pdf

Court reviews the liability of an assisted living facility's management company

RHEAETTA F. WILSON ET AL. v. AMERICARE SYSTEMS, INC., ET AL. (Tenn. Ct. January 6, 2012)

Decedent's next of kin filed this wrongful death action against an assisted living facility, two nurses, and the facility's management company for failure to provide proper care and treatment. This appeal concerns only the jury verdict and judgment finding the management company directly liable for failure to provide adequate staff at the assisted living facility. We find no material evidence to support a conclusion that any staffing deficiency proximately caused the decedent's death. We therefore reverse the judgment finding direct liability on the part of the management company.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/wilsonr_010612.pdf