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