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