1. 2014 Case Law Update Fred Baker, Attorney, Wimberly & Lawson Patrick Ruth, Moderator

2. 2014 Case Law Update Presented by: Fredrick R. Baker, Esq.

3. Conatser v. Fentress Farmers Cooperative Tennessee Workers’ Compensation Panel, July 26, 2013 Text 210726 and your Questions to 22333

4. Conatser v. Fentress Farmers Cooperative Facts: A truck driver sustained multiple injuries when approx. 1,500 pounds of stockade gates fell on him. The employee returned to work and settled case for 34.5% BAW. Five years later, the employee resigned due to effects of his injury and filed for reconsideration. Employer argued the Employee was permanently and totally disabled (equal to 190.43 weeks). Trial Court disagreed and awarded permanent partial disability benefits based on 97.75% BAW (equal to 391 weeks). Text 210726 and your Questions to 22333

5. Conatser v. Fentress Farmers Cooperative Issue: What is the extent of permanent vocational disability upon reconsideration? Holding: Employee was PTD as he was unemployable in the open labor market due to his injury. Employee was almost 65 years of age, his work history consisted entirely of manual labor, and he experienced constant pain. The Employee could perform a limited amount of farm work, but admitted that he would be unable to farm without the help of his wife and son. Text 210726 and your Questions to 22333

6. Lively v. Union Carbide Corp. Tennessee Workers’ Compensation Panel, August 13, 2013 Facts: The Employee was rendered unable to work in 1982 due to bronchitis and emphysema. Asbestosis was diagnosed in 2006 and a workers’ compensation claim resulted. In 2009 the claim was settled for permanent and total disability of $90,000.00, calculated as 400 weeks at a negotiated comp rate of $225.00. Employee died in 2010 and widow filed claim for death and funeral benefits. Text 210726 and your Questions to 22333

7. Lively v. Union Carbide Corp. Issue #1: Does the prior permanent disability settlement preclude the subsequent claim by the widow for death and funeral benefits? Holding: No, a dependent’s claim for death benefits is not barred because the employee previously settled a disability claim. However, any recovery by the dependent for death benefits (exclusive of medical, hospital or funeral benefits) must be reduced by any payments made to the employee during his lifetime. Text 210726 and your Questions to 22333

8. Lively v. Union Carbide Corp. Issue #2: Death benefits are equal to the maximum total benefit on date of injury, but what was the date of injury? Note: max comp rate for 1982 injury would be $126.00 per week, for a maximum total benefit of $50,400.00. On the other hand, the max comp rate for 2010 injury would be $765.00 per week, for a maximum total benefit of $306,000.00. Text 210726 and your Questions to 22333

9. Lively v. Union Carbide Corp. Holding: Date of injury was the date the employee was incapacitated – 1982. In that case, the death benefits should have been equal to 400 weeks times the max comp rate on that date, $126.00, or $50,400.00. Thus, the amount of death benefits is actually less than the $90,000.00 already paid to the employee under the disability settlement. So, no additional benefits were owed to the widow, other than funeral expenses. Text 210726 and your Questions to 22333

10. Mansell v. Bridgestone, et al. Tennessee Supreme Court, August 20, 2013 Facts: Trial Court initially denied MIR, but after Supreme Court appeal, allowed one prior to trial. Award granted to employee, but constitutionality of MIR process questioned. Text 210726 and your Questions to 22333

11. Mansell v. Bridgestone, et al. Issue #1: Can MIR occur after the administrative process is exhausted? Holding: Yes. Either party during or after the administrative process can timely request an MIR. The MIR program is tailored to certain specific circumstances in the overall statutory scheme of workers’ compensation & does not prevent Courts from traditional fact finding or weighing evidence. Text 210726 and your Questions to 22333

12. Mansell v. Bridgestone, et al. Issue #2: Does the MIR process violate Procedural Due Process? Holding: No. Presumption of correctness of MIR rating can be rebutted by clear & convincing evidence and is not a “permanent” presumption. Text 210726 and your Questions to 22333

13. Mansell v. Bridgestone, et al. Issue #3: Does the MIR process violate Substantive Due Process? Holding: No. Workers’ Compensation rights are not fundamental rights. General Assembly has prerogative to establish policies & procedures of workers’ compensation and determined MIR process is an alternative available in limited circumstances. The MIR program is compliant with constitutional standards. Text 210726 and your Questions to 22333

14. Grooms v. City of Trenton Tennessee Workers’ Compensation Panel, September 12, 2013 Facts: A sanitation worker was struck in the groin when he fell onto a bed frame, and subsequently developed swelling, infection, and gangrene. Treating physician testified the condition was not work related, but the IME physician opined that it was work related. Trial Court found the injury non-compensable. Text 210726 and your Questions to 22333

15. Grooms v. City of Trenton Issue #1: Should the Employer have been precluded from contesting the issue of causation at trial because it had voluntarily paid medical and temporary disability benefits, and/or because it agreed during the BRC that the injury was compensable? Holding: No, Employer could still contest the issue of causation. Holding otherwise would create the potential of delaying medical care, lead to increased litigation costs, and would increase the types of unnecessary expenses the BRC process was designed to eliminate. Text 210726 and your Questions to 22333

16. Grooms v. City of Trenton Issue #2: Does the evidence preponderate against the Trial Court’s finding that the injury was not work related? Holding: No, the Trial Court’s decision was affirmed. The opinion of the treating physician (urologist with a particular knowledge about the condition) outweighed the opinion of the IME doctor (physiatrist with limited experience with this type of condition). Text 210726 and your Questions to 22333

17. Houston v. MTD Consumer Group Tennessee Workers’ Compensation Panel, October 25, 2013 Facts: The Employee sustained injuries to both arms as a result of working for a manufacturer of lawn and garden equipment. Parties stipulated to compensability and 40% PPD to each arm, but they could not agree on AWW and comp rate. Employer was seasonal operation and averaged three layoffs per year. During the year prior to the injury, the Employee had been laid off for 33 weeks. Text 210726 and your Questions to 22333

18. Houston v. MTD Consumer Group Issue: Should the 33 layoff weeks be included in the calculation of the AWW and compensation rate? Holding: Yes. The only time deducted from the calculation of the AWW and compensation rate are those days missed for “sickness, disability, or other fortuitous circumstances.” Layoff weeks were clearly not sickness or disability, and the Court found that they were not “fortuitous” either. Layoffs in this case were not chance happenings or unforeseen circumstances. Rather, these layoffs were recognized incidents of regular employment for this employer. Text 210726 and your Questions to 22333

19. Carten v. MBI Tennessee Workers’ Compensation Panel, November 14, 2013 Facts: Employee died from “traumatic asphyxiation” after a front-end loader accidentally pushed him into a trailer loaded with garbage. The widow filed a claim for death benefits, but the Employer denied the claim based on the Mitchell v. Fayetteville Public Utilities affirmative defense of willful misconduct/willful failure to use a safety device. The Employer asserted that the injury was the result of violations of several safety rules (wearing hard hat, wearing yellow safety vest, no scavenging items from tipping floor). The Trial Court entered judgment in favor of the Employer. Text 210726 and your Questions to 22333

20. Carten v. MBI Issue: Does the Mitchell v. Fayetteville Public Utilities defense bar recovery of death benefits? More specifically, did the Employer successfully prove the third element of the defense, which requires bona fide enforcement of the rule? Holding: Yes, the affirmative defense was upheld. Trial Court was presented with competing testimony on the Employer’s bona fide enforcement of its policies. The Employee’s witnesses testified that these rules were regularly ignored without discipline. On the other hand, the Employer’s witnesses testified that the policies were consistently enforced. The Panel gave considerable deference to the Trial Court’s decision to accredit the Employer’s witnesses, and therefore affirmed the judgment for the Employer. Text 210726 and your Questions to 22333

21. English v. Compass Group USA, Inc. Tennessee Workers’ Compensation Panel, December 9, 2013 Facts: Employee was injured when she fell from a stack of soft drinks while attempting to climb a wall to rescue and remove a feral cat from the Employer’s premises. Text 210726 and your Questions to 22333

22. English v. Compass Group USA, Inc. Issue #1: Did the injury arise out of and in the course of employment? Holding: Yes, injury was compensable. The “mutual benefit test” aids the determination of when an Employee’s personal mission sufficiently deviates from the course of employment so as to render the injury non-compensable. If the deviation is for the benefit of the Employer, it does not matter that it also serves the Employee’s purposes. In this case, the Employer benefitted from the removal of the cat and therefore the injury was considered work related. Text 210726 and your Questions to 22333

23. English v. Compass Group USA, Inc. Issue #2: Should Employee be barred from recovery because of her violation of a safety rule requiring employees to use ladders for climbing? Holding: No, Employer failed to prove all four elements of Mitchell v. Fayetteville Public Utilities affirmative defense. Record lacked sufficient evidence to prove bona fide enforcement of ladder. In addition, the Employee had a valid excuse for violation - i.e. ladder was inaccessible and cat was likely to cause damage if not removed. Text 210726 and your Questions to 22333

24. DeGalliford v. United Cabinet Company, LLC Tennessee Workers’ Compensation Panel, March 17, 2014 Facts: Employee alleged that he suffered gradual injury to his cervical spine as a result of strenuous repetitive tasks and heavy lifting required by his employment. Text 210726 and your Questions to 22333

25. DeGalliford v. United Cabinet Company, LLC Issue: Did the injury arise “primarily” from the employment, as required by the new causation standard? Holding: Yes, the injury arose “primarily” from the employment. Medical experts disagreed, but the evidence did not preponderate against Trial Court’s adoption of medical testimony that the repetitive lifting of heavy wood objects at work was the primary cause of the aggravation of the preexisting degenerative disc disease. Text 210726 and your Questions to 22333

26. Watson v. The Parent Company Tennessee Workers’ Compensation Panel, May 14, 2014 Facts: The Employee suffered work-related back injury in 2007. After conservative treatment failed to provide relief, the Employee underwent an unauthorized back surgery. The claim settled in 2009. The settlement agreement provided for “future medical benefits relating to the back injury” of 2007, while precluding future benefits for unauthorized medical care. In 2011, the Employee sought authorization for surgery with authorized physician to correct results of the prior unauthorized back surgery. Text 210726 and your Questions to 22333

27. Watson v. The Parent Company Issue: Should Employer be required to authorize proposed surgery? Holding: Yes. Even though the proposed surgery was needed to repair the results of the prior unauthorized surgery, the treatment still came within the settlement agreement which covered “All future medical benefits relating to the back injury.” The Court reasoned that the relationship between the Employee’s back injury and the proposed surgery was not severed by the Employee’s failure to seek authorization for the pre-settlement surgery. Text 210726 and your Questions to 22333

28. Fredrick R. Baker, Esq. Wimberly Lawson Wright Daves & Jones, PLLC 1420 Neal Street, Suite 201 P.O. Box 655 Cookeville, TN 38503-0655 Phone: 931-372-9123 Fax: 931-372-9181 Email: fbaker@wimberlylawson.com