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.




In Tennessee Can you Force an Estate to Distribute Assets to the Heirs?

I am often asked to become involved in Tennessee probate estates as the attorney for the beneficiaries of the estate.  Often this is done to make sure the estate is running appropriately and sometimes this is done because my clients simply do not trust the executor or administrator of the estate (both are good reasons to hire an attorney to represent the beneficiaries).  When I am involved in this role for an estate, the most common question I get from my clients is about the timing of when the estate assets will be distributed to the heirs or beneficiaries of the estate.

Often I cannot answer this question to my client’s satisfaction because if I am not the attorney for the estate, it is hard for me to control how promptly and efficiently the estate is handled.