All firm news and articles of Brewer, Krause, Brooks, Chastain & Burrow.


Tennessee Supreme Court Clarifies Which Cases Are Subject to Tennessee Health Care Liability Act Requirements

The Tennessee Supreme Court recently handed down a very important medical malpractice decision in Adam Ellithorpe v. Janet Weismark, 2015 WL 5853873 (Tenn. 2015).  In this new decision, the Tennessee Supreme Court considered whether its prior opinion of Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011) was overruled by legislation found in the Tennessee Civil Justice Act in 2011.  In the Estate of French decision, the Tennessee Supreme Court previously ruled that claims could be characterized as ordinary negligence as opposed to medical malpractice when the conduct alleged is not substantially related to the rendition of medical treatment by a medical professional.  Following that decision, the Tennessee Legislature passed the Tennessee Civil Justice Act of 2011 which amended the definition of a “healthcare liability action” to the following:

(1) “Health care liability action” means any civil action, including claims against the state or a political subdivision thereof, alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based;

T.C.A. § 29-26-101(a)(1).




What Kinds of Social Media Posts Provide a Legitimate Basis for Termination?

The National Labor Relations Board (NLRB) gives employees the right to engage in protected, concerted activity and discuss the terms and conditions of their employment. This, however, is not a free pass for all types of communication. In Richmond District Neighborhood Center, Case No. 20-CA-091748 the NLRB determined there were some postings in social media that were so egregious as to lose the protection afforded above-referenced.

In Richmond District Neighborhood Center the employer runs afterschool programs at a high school. Two workers had discussions which were perceived to be insubordinate. In essence, these employees discussed on Facebook how they would ignore the employer’s rules. The NLRB determined these threats justified termination and were not protected types of communication in social media.

Conversely, the NLRB found that “likes” can be protected under the theory of a “concerted activity.” In 2014, the NLRB ruled that Triple Play Sports Bar and Grill fired individuals inappropriately. In this matter a former Triple Play employees posted negative comments about the employer on a Facebook page and a current employee “liked” the post. When that employee returned to work the employee was terminated immediately based upon the “like” of the comment. The NLRB found this was not appropriate. The NLRB found the company’s anti-blogging policy was aimed at stopping employees from saying anything negative about the company online and, therefore, was an effort to chill protected, “concerted activity.”

Further, in a NLRB advice memorandum pertaining to Skin Smart Dermatology a question arose as to whether or not the employer violated Section 8(a)(1) of the Act when the employer discharged the charging party for comments made in a private Facebook group message. In this matter the NLRB concluded the charging party was not engaged in a protected concerted activity when she posted comments to the Facebook group message. In this matter the communication was not considered a concerted activity but, instead, was not a concerted activity as it did not involve shared employee concerns over terms and conditions of employment. Rather, the post was associated with personal issues the particular employee had with the employer.


How Do You Contest an Individual’s “Lack of Testamentary Capacity” to Execute a Will in Tennessee?

One way to contest a will in Tennessee is to assert that the decedent had a “lack of testamentary capacity”.  Basically, this is an assertion that the individual who executed the will was not actually competent to execute the will.  Tennessee has many cases that discuss this claim in the context, most often, of a will contest situation.

The Tennessee Court of Appeals has said the following about what is required to establish “lack of testamentary capacity” contest to a will:

The law requires that the testator’s mind, at the time the will is executed, must be sufficiently sound to enable him or her to know and understand the force and consequence of the act of making the will.  American Trust & Banking Co. v. Williams, 225 S.W.2d 79, 83 (1948). The testator must have an intelligent consciousness of the nature and effect of the act, a knowledge of the property possessed and an understanding of the disposition to be made. Goodall v. Crawford, 611 S.W.2d 602, 604 (Tenn. App. 1981). While evidence regarding factors such as physical weakness or disease, old age, blunt perception or failing mind and memory is admissible on the issue of testamentary capacity, it is not conclusive and the testator is not thereby rendered incompetent if her mind is sufficiently sound to enable her to know and understand what she is doing. American Trust, supra; 79 Am.Jur.2d Wills § 77 (1975).




Tennessee Supreme Court Assesses when Tennessee can Apply Retaliatory Taxes on Insurance Companies from Other States

The Tennessee Supreme Court recently interpreted the laws of a foreign state in order to determine whether or not the State of Tennessee could impose a “retaliatory tax” on insurance companies based in the foreign state who operated in Tennessee as authorized workers’ compensation coverage providers. See Chartis Casualty Company et al. v. State of Tennessee, No. M2013-00885-SC-R11-CV, 2015 WL 5766279 (Tenn. October 2, 2015).

The State of Tennessee had audited a number of insurance companies based in Pennsylvania and required them to pay “retaliatory taxes” under Tenn. Code Ann. § 56-4-218. This statute allows the State of Tennessee to impose additional taxes on insurance companies from other jurisdictions when insurance companies based in Tennessee are taxed to a greater degree in those jurisdictions than the insurance companies from other jurisdictions are taxed in Tennessee. The calculation takes into account “taxes, fees, fines, penalties, licenses, deposit requirements or other obligations…” § 56-4-218(a).

In the case of the Pennsylvania companies, the State of Tennessee determined that the State of Pennsylvania’s taxes and fees on Tennessee insurance companies were higher than the State of Tennessee’s taxes and fees on Pennsylvania insurance companies. Therefore, the State of Tennessee applied “retaliatory” taxes on these Pennsylvania companies. Five of these Pennsylvania insurance companies paid the taxes under dispute to the State before filing a complaint with the Tennessee Claims Commission. The Tennessee Claims Commission granted the summary judgment motions of the State of Tennessee as to all five cases involving the five Pennsylvania insurance companies, and the Court of Appeals affirmed the rulings. The Tennessee Supreme Court granted permission to appeal.

In its opinion, the Supreme Court did not question the constitutionality of Tennessee’s retaliatory laws. Rather, the Supreme Court analyzed Pennsylvania statutes to determine whether or not Pennsylvania actually did impose a financial burden on Tennessee insurance companies doing business in Pennsylvania greater than the financial burden applied by the State of Tennessee. If they did, the Court held that Tennessee’s retaliatory taxes should have applied.

The lower courts had based their opinions on three Pennsylvania statutes which applied higher financial burdens on Tennessee insurance companies than Tennessee applied on Pennsylvania insurance companies. However, a more recent statute had been passed by the Pennsylvania legislature which stated that taxes imposed under the previous statutes were no longer to be directly imposed on insurance companies but instead were to be “imposed, collected and remitted through insurers in accordance with regulations promulgated by the Department of Labor and Industry.” 71 Pa. Cons. Stat. Ann. § 578. This statute was interpreted by the Supreme Court as not requiring the workers’ compensation assessments to be paid by insurance companies but instead to be merely collected by insurance companies from their policyholders and then paid to the State of Pennsylvania. The Court found that the newer statute repealed the three older Pennsylvania statutes imposing fees directly on insurance companies, since, because “the statutory schemes are inconsistent,” the older statutes would be repealed by implication. Chartis Casualty Company, 2015 WL 5766279 at *8.

The next question the Court analyzed was whether or not the newer Pennsylvania statute continued to place a direct financial burden upon Tennessee insurance companies doing business in Pennsylvania which exceeded the reciprocal financial burden upon Pennsylvania insurance companies doing business in Tennessee. The Court found that the fact that the policyholders of the insurance, instead of the insurance companies themselves, paid directly for these fees and taxes meant that the financial burden from the three older statutes could not be factored into a determination by Tennessee of retaliatory taxes for insurance companies. The State argued that the insurance companies’ administrative role of collecting and sending payments made by its policyholders to the State of Pennsylvania was an indirect financial burden which would be considered a fee, fine, penalty, license, deposit requirement or other obligation under the TN retaliatory tax statute. The Court, however, declined to consider this argument.

While the Court noted that the newer statute was an attempt by Pennsylvania to actively avoid retaliatory taxes for insurance companies domiciled in the state which operated in other jurisdictions, this active avoidance was successful since the financial burden of the policyholders would not factor into a determination of the financial burden for insurance companies. The Court thus found that there was no financial burden on Tennessee insurance companies operating in Pennsylvania greater than the financial burden of Pennsylvania insurance companies operating in Tennessee. Therefore, the State of Tennessee had no authority to impose retaliatory taxes upon the Pennsylvania insurance companies.


Tennessee’s One Year Personal Injury Statute of Limitations Extended to Two Years when Criminal Charges are Brought

The 2015 Tennessee legislature passed Public Chapter No. 388 that extends the typical one year statute of limitation for personal injury causes of action (as well as other cause of actions) in certain situations.  This new law went into effect for all causes of action that accrue on or after July 1, 2015.   This statute basically extends the typical one year statute of limitations for cases involving personal injury, libel, false imprisonment, malicious prosecution and compensatory or punitive damage claims under Federal Civil Rights statutes.  In order to take advantage of the two year statute of limitations extension, a criminal charge must be brought pertaining to the incident in question within one year of the incident by (1) a law enforcement officer; (2) a District Attorney General; or (3) a grand jury.




Who Has Standing to Contest a Will in Tennessee?

In Tennessee, a party who is going to contest a will must have proper “standing” to actually contest the will.  This basically means that the individual must have the authority under Tennessee Law to contest the will before they can do so.  If they do not have proper standing, then the Court will simply dismiss the case.  Tennessee Courts have provided guidance on who has standing to contest a will.

The Tennessee Court of Appeals in Keasler v. Estate of Keasler, 973 S.W.2d 213 (Tenn. Ct. App. 1997) found that “in order to have standing to contest a will, the contestant must show that he would take a share of the decedent’s estate if the probated will were set aside.”




Overcoming Medical Impairment Registry Physician’s Opinion on Anatomical Impairment Rating Requires Clear and Convincing Evidence in Tennessee

Recently, the Workers’ Compensation Appeals Panel had the opportunity to address how a Medical Impairment Registry physician’s opinion on an anatomical impairment rating may be overcome in the case of Victory v. Bob Duck Wiler d/b/a Custom Concrete Design, (September 8, 2015). In this matter numerous physicians were of the opinion the claimant had nonspecific back pain, no true radiculopathy and did not require back surgery. Ultimately, Dr. Hazlewood subsequently saw the claimant and reached an opinion the claimant had normal findings and no objective findings of radiculopathy. Dr. Hazlewood provided the claimant a 2% permanent anatomical impairment rating to the body as a whole for the lumbar spine injury.

The claimant underwent an independent medical evaluation by Dr. Richard Fishbein. He provided the claimant a 13% permanent anatomical impairment rating to the body as a whole based upon his findings of radiculopathy.

With this differentiation in the impairment ratings apparent the Medical Impairment Registry physician became involved. The Medical Impairment Registry physician, Dr. Robert Landsberg, provided an opinion the claimant retained a 3% permanent anatomical impairment rating to the body as a whole and did not find true radiculopathy either.

The Trial Court determined the employee and his attorney had overcome the presumption of correctness of the Medical Impairment Registry’s physician and held the employee’s anatomical impairment rating was 13% to the body as a whole as defined by Dr. Fishbein. The Court awarded the employee vocational disability of 54% to the body.

On appeal the Appeals Panel held that to overcome the presumption the Medical Impairment Registry physician’s was correct required clear and convincing evidence. The term “clear and convincing evidence” was not defined by the statute which set in place the Medical Impairment Registry process (T.C.A. § 50-6-204(d)(5)) and therefore, they relied upon a Supreme Court decision which held, “clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.”

The Appellate Court, in considering Dr. Fishbein’s testimony, agreed with the characterization of Dr. Fishbein’s testimony as being “unusual.” The Panel determined Dr. Fishbein’s testimony was rambling at times and evasive at others. The Trial Court determined Dr. Fishbein had overcome the Medical Impairment Registry opinion by clear and convincing evidence. The Trial Court found it had seen the employee within the courtroom and was of the opinion the employee had true pain.

With respect to this the Panel held, “whether such a medical condition exists is not a matter that can be determined by observation of a part in the courtroom. It must be decided based on the medical evidence.” With this in mind the Court held the opinion of the Medical Impairment Registry physician had not been overcome by clear and convincing evidence.

Results of this opinion lead to a conclusion that the opinion of the Medical Impairment Registry physician, whether good or bad, will generally be upheld unless there is a presentation of affirmative evidence that an Medical Impairment Registry physician had used an incorrect method to provide a rating or an inappropriate interpretation of the AMA Guidelines. A disagreement between medical experts as to the proper diagnosis of an employee’s condition may not, in and of itself, constitute the clear and convincing evidence needed to overcome the statutory presumption of accuracy afforded a Medical Impairment Registry physician’s impairment rating.


The Tennessee Supreme Court Determines There is No Cause of Action for Purported Retaliatory Failure to Hire Due to Prior Workers Compensation Claim.

In Kighwaunda V. Yardley v. Hospital Housekeeping Systems, LCC, the Tennessee Supreme Court determined there was not a viable cause of action in Tennessee for retaliatory failure to hire due to a prior workers compensation claim.  There has, however, long been a cause of action for retaliatory discharge for asserting a work injury.  To be successful with a cause of action of this type the employee must establish numerous elements including:

1. The plaintiff was an employee of the defendant at the time of the injury;
2. The plaintiff made a claim against the defendant for workers’ compensation benefits;
3. The defendant terminated plaintiff’s employment; and
4. The claim for workers’ compensation benefits was a substantial factor in defendant’s motivation to terminate the plaintiff.

The Supreme Court, however, held there is a fundamental difference between discharging an employee as a result of a work-related injury and refusing to hire a job applicant because they previously filed for workers’ compensation benefits.  In this case, the claimant had a work-related injury but was ultimately released to perform full duty work and applied for a job with Hospital Housekeeping Systems but was not hired, at least in part, due to the fact she previously filed a workers’ compensation claim.  The claimant sued Hospital Housekeeping Systems in Federal District Court raising a number of claims one of which was the company failed to hire her because she had a previous workers’ compensation claim which gave rise to a cause of action for a “retaliatory failure to hire.”  The claimant recognized this cause of action had not previously been recognized in Tennessee.  The Federal District Court requested the Tennessee Supreme Court to consider whether or not there should be a cause of action for this.  Federal Courts certify questions of this type to State Supreme Courts when a Federal Court is ruling on a cause which involves an issue that has not been previously addressed by the State or its Legislature.

Our Supreme Court determined Tennessee is an employment-at-will state and there has been no such cause of action created by the Legislature.  As a result, the Supreme Court was unwilling to recognize this as a cause of action.  As a side note, this does not mean she had no claim for disability discrimination under the American’s with Disabilities Act (ADA) and the Tennessee Human Rights Act (THRA).


Breaking the Chain of Causation on Underlying Injury in Tennessee Workers’ Compensation Cases

Recently, the Tennessee Workers’ Compensation Panel addressed when an intervening incident may break the chain of causation for an underlying injury and eliminate further exposure.  United Parcel Service, Inc. v. Sabrina Brown, Tenn. Special WC App. Panel, No. M2014-01332-SC-R3-WC (Tenn. WC App. Panel, 2015).  In this case, the claimant injured her right knee on July 8, 2010.  She received initial medical care and temporary benefits.  Initial diagnostic testing suggested the claimant had a torn anterior cruciate ligament.  Surgery took place on September 9, 2010.  Immediately following surgery the treating physician found the claimant had normal post-surgical findings and instructed the employee to use crutches, place no weight on her right leg and wear a brace.

In or around October of 2010 (approximately one month following surgery) the claimant was in her backyard.  She noticed a sharp object laying on the ground and placed both crutches to her left side and attempted to reach down to pick up the object.  In doing this she lost her balance and felt an immediate twinge in the knee.

Subsequent to this event the treating physician had concerns the claimant had a possible failure of the ACL repair.  By December of that year the treating physician concluded the graft or surgery had failed and recommended an additional surgery.  The employer argued there had been a break in causation and the employer should not be held responsible for additional care.

The Appeals Panel determined there was not a break in the chain of causation and relied heavily upon Anderson v. Westfield Grp., 259 S.W.3d 690 (Tenn. 2008).  Generally, the Court held the aggravation of an original injury is compensable if it is direct and natural result of the compensable injury.  In addition, the Panel relied upon the treatise created by Larson who determined every natural consequence that flows from the injury likewise arises out of the employment injury.  The Appeals Panel referenced this as the “natural consequences rule.”  The Panel, however, recognized this rule has a limit.  The limit hinges on whether the subsequent injury is the result of independent intervening causes such as the employee’s own conduct.  In essence, every natural consequence that flows from the initial injury is compensable or related, “unless it is result of an independent intervening cause attributable to the claimant’s own intentional conduct.”  In addition, the chain of causation can be broken if it is found that, “the injured employee, knowing of his weakness, rationally undertakes to do things likely to result in harm to himself, the chain of causation is broken by his own negligence.”

In this matter the authorized treating physician testified he did not believe the claimant had done anything wrong in attempting to lift the item out of her backyard.  With respect to this he testified, “it was my opinion that Ms. Brown’s activities during her initial post-operative period were not inappropriate.  So I didn’t think that she was at fault for doing anything wrong that was out of the ordinary for post-operative ACL reconstruction.”

The Court found there was no negligence nor any intentional act.  As a result, the Court found the chain of causation was not broken.

In essence, unless the subsequent injury or event is work-related for a separate employer and one can invoke the “last injurious rule” the intervening incident or activity must be fairly significant.  It must rise to the level of intentional conduct or negligence.  This is a much tougher threshold.


Tennessee Legislature Clarifies that Franchisee Employees Are Not To Be Deemed Employees of the Franchisor

The Tennessee legislature in Public Chapter No. 114 clarified Tennessee law on who is considered the employer of franchisee employees. This was signed into law by Governor Bill Haslam on April 10, 2015 and took effect immediately. Specifically, employees of franchisees as well as franchisees themselves will not be “deemed to be an employee of the franchisor for any purpose.” This obviously is important in several different areas of the law. It can certainly be important for numerous employment law issues including Tennessee employee discrimination or fair labor standard cases. Additionally, if employees are deemed to be employed by a franchisor, this could lead to an increased level of litigation against franchisors for claims based in premises liability or automobile liability (when a franchisee is involved in an incident or claim).

The Tennessee legislature felt it was important to clarify this issue mainly because of concerns for litigation as well as recent changes in the law on this issue at the national level.