workerscompensation
Seth Wilson

The Admissibility of Expert Testimony of a Vocational Consultant in Workers’ Compensation Cases on the Subject of an Employee’s Disability

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The Supreme Court of Tennessee Special Workers’ Compensation Appeals Panel recently decided a matter involving the relevancy and admissibility of the testimony of a vocational consultant regarding an injured employee’s total disability. Miller v. State, No. E2015-00034-SC-R3-WC, 2015 WL 7013864 (Tenn. Workers Comp. Panel November 5, 2015) involved an Employee for the University of Tennessee. While moving a sign during his shift as a parking lot attendant, the Employee injured his neck.

An MRI and CT scan revealed a herniated disc and spinal cord compression. Employee had surgery for his neck shortly after the accident. After surgery, Employee had pain in his right arm and hand. His treating physician stated that he had a residual nerve injury which could not be confirmed by diagnostic testing. A different physician performed an independent medical evaluation (“IME”) a year later. The IME physician was unable to state whether the Employee’s upper extremity issues were related to the work injury. However, he assigned a 15% permanent partial impairment rating to the body as a whole for the injury and found that the Employee had little hope to get back to meaningful employment.

Thereafter, the Employee underwent a functional capacity evaluation (“FCE”). The therapist who conducted the FCE found the Employee was able to perform “light physical demand” work. After seeing the results of the FCE, the IME physician stated he had no problem with Employee working light physical demand type of work.

A vocational consultant evaluated the Employee at the request of the Employee’s attorney. The consultant assessed that all of the Employee’s previous jobs were unskilled and required heavy physical labor. He further found the Employee to read at a 5th grade level.

The vocational consultant reviewed the results of the FCE. Based on these assessments, the vocational consultant disagreed with the FCE and found that Employee was not capable of light work or even sedentary-type work. The vocational consultant further found the Employee to be totally disabled and opined that Employee sustained a 49% vocational disability as a result of his work injury.

The University objected to the admission of testimony of the vocational consultant which interpreted the results of the FCE and which opined on the Employee’s permanent disability. The trial court overruled the objection. The trial court then ruled that the Employee was permanently and totally disabled as a result of his work injury.

The University appealed partly on its contention that its objection to the vocational consultant’s opinions should not have been overruled by the trial court. The University argued that it was outside a vocational consultant’s expertise to place medical restrictions on an injured worker.

While the appellate court agreed, it found the consultant to be qualified to offer an opinion on vocational disability. The vocational consultant was found to have accepted the conclusions of the FCE regarding Employee’s abilities to perform various tasks before engaging in his analysis of whether the Employee had a vocational disability. Thus, he did not venture outside his area of expertise in assessing the Employee’s medical condition. Once he accepted the FCE’s conclusions, his further assessment was based on data from government and private sources regarding the physical exertion requirements of various jobs. It was the use of these sources, along with using the data from the FCE, which provided the vocational consultant the basis of his opinions regarding the Employee’s vocational disability.

Therefore, the appellate court held the vocational consultant’s testimony to be relevant and admissible. Thus, the trial court was found to not have abused its discretion by overruling the University’s objection to the vocational consultant’s testimony.

insurancedefense
Jason A. Lee, Esq.

“Reasonable” Medical Expenses in Tennessee (Amount Billed or Amount Paid?) – The Law After West and Dedmon for Personal Injury Litigation

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A very important Tennessee Court of Appeals opinion was issued on June 2, 2016. In this case, Jean Dedmon v. Debbie Steelman, No. W2015-01462-COA-R9-CV (Tenn. Ct. App. June 2, 2016), the Court discussed whether the amount an insurance company actually pays for medical services in a personal injury action, is, as a matter of law, the “reasonable” amount of medical expenses. In order to recover medical expenses under Tennessee law, in a personal injury action, the plaintiff must prove the medical expenses were reasonable and necessary. The reason the Dedmon decision is so important is because of the West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014) decision. In the West case, the Tennessee Supreme Court, when interpreting the Tennessee Hospital Lien Act, essentially found that a hospital’s non-discounted charges reflected in their lien, were not reasonable because they do not reflect what is actually being paid in the marketplace. The Court found that, under the Tennessee Hospital Lien Act, the amount actually paid for the hospital charges were the reasonable charges for the services provided, not the amounts billed which were, as a matter of law, unreasonable.

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE

will
Jason A. Lee, Esq.

What Happens When Joint Owners of a Bank Account Die Simultaneously in Tennessee?

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Sometimes, two individuals who own a bank account as joint tenants with right of survivorship or tenants by the entirety, die at the same time. In this situation, the question is, what happens to the money in those accounts? Normally, joint tenant accounts with Right of Survivorship immediately pass to the surviving individual on the account. However, if there is a simultaneous death, the ownership of these accounts is often an unresolved issue. Thankfully, Tennessee adopted the Uniform Simultaneous Death Act long ago. T.C.A. § 31-3-104 provides as follows:

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Law
Jason A. Lee, Esq.

Plaintiff in Tennessee Slip and Fall Case Must Identify Object that Caused Fall

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A recent Tennessee Court of Appeals decision, Hilda Willis v. McDonalds Restaurants of Tennessee, Inc., No. E2015-00615-COA-R3-CV, 2015 WL 9426271 (Tenn. Ct. App. 2015), involved a slip and fall at a McDonald’s in Tennessee and it provided an interesting issue.  In this case the plaintiff was maneuvering around the area where drinks were served at a McDonald’s.  As she left that area she saw a french fry on the bottom corner of the surface next to the service counter.  She stepped over the french fry and claimed that there was a sharp object that she felt through her shoe.  She believes this is what caused her to fall.  When she fell she dropped her drinks therefore there was ice everywhere.  Because of this, there was no ability to actually identify the piece of ice or other object that allegedly caused her to fall.

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE

will
Jason A. Lee, Esq.

How Do You Establish “Undue Influence” in Tennessee When Contesting a Tennessee Will?

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One of the most common ways that Tennessee Wills are contested is based on the theory of “undue influence”.  This is a broad category where a will can be contested based on the theory that the person benefitting from the Will exhibited influence over the decedent in an inappropriate manner.  One example would be where a person manipulated someone who had dementia or Alzheimer’s into changing their will for that person’s direct benefit (often to the exclusion of other family members).

In order to establish that a Will was subject to “undue influence” in Tennessee, certain circumstances must be present.  This includes the following as notes by the Tennessee Court of Appeals:

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READ THE REST OF THIS POST AT TENNESSEE WILLS AND ESTATES HERE

insurancedefense
Jason A. Lee, Esq.

Tennessee Homeowners Must Have Notice of a Dog’s Dangerous Propensities to be Liable in a Dog Bite Case

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A recent Tennessee Court of Appeals decision dealt with an interesting dog bite case question.  In Moore v. Gaut, 2015 WL 9584389 (Tenn. Ct. App. 2015) the plaintiff was bitten by the defendant’s Great Dane dog while the dog was in the Defendant’s own fenced in back yard.  The plaintiff was actually on the other side of the fence when he approached the dog. When he came close the dog bit the plaintiff on the face.  The trial court dismissed the case on summary judgment because there was no evidence that the dog had any prior propensity for attacks and there was no evidence of any actual prior attacks.

The plaintiff appealed this decision and argued that the large size of the Great Dane as well as the breed of the dog should cause the dog to be characterized as part of a “suspect class” of dogs.  Further, that this, standing along, is enough to establish a genuine material fact as to whether the plaintiff should have known the dog had dangerous propensities.  The Tennessee Court of Appeals was asked by the plaintiff to extend T.C.A. § 44-8-413 (a 2007 dog bite statute discussed below) and basically find that certain dogs are simply part of a “suspect class” of dogs because of their size, weight, strength, and general propensities.

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READ THE REST OF THIS POST AT TENNESSEE DEFENSE LITIGATION HERE

insurancedefense
Jason A. Lee, Esq.

Tennessee Supreme Court Modifies Spoliation of Evidence Doctrine By Removing Intentional Misconduct Requirement

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Tennessee has long had a doctrine of spoliation of evidence which allows the trial court to draw negative inferences or even provide dismissal against a party who destroys evidence.  Historically, Tennessee courts have required the presence of actual intentional misconduct to invoke the doctrine of spoliation of evidence particularly when providing the remedy of a negative inference or dismissal.  The Tennessee Supreme Court in Lea Ann Tatham v. Bridgestone Americas Holding, Inc., No. W2013-02604-SC-R11-CV, 2015 WL 6688035 (Tenn. 2015) dealt with an apparent conflict between the case law and Rule 34A.02 of the Tennessee Rules of Civil Procedure that was adopted on July 1, 2006.  The full text of Rule 34A.02 provides as follows:

Rule 37 sanctions may be imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or conceals evidence.

The question before the Tennessee Supreme Court in Lea Ann Tatham was whether Tennessee Courts should continue to require an intentional misconduct prerequisite for a trial court to impose sanctions for spoliation of evidence.  The Tennessee Supreme Court decided this issue and expressed the desire to provide a uniform standard on this issue.

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workerscompensation
Seth Wilson

Reconsideration of Tennessee Workers’ Compensation Benefits After Termination for Cause

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In Stacey v. Nissan North America, Inc., No. M2014-00796-SC-R3-WC, 2015 WL 6119501 (Tenn. Workers Comp. Panel October 15, 2015) the Supreme Court of Tennessee Special Workers’ Compensation Appeals Panel assessed an Employee’s right to reconsideration of prior workers’ compensation awards following the Employee’s termination.

A claimant’s request for reconsideration of a prior award or settlement is governed by Section 50–6–241(d)(1)(B), Tennessee Code Annotated, which provides (in pertinent part):

(i) If an injured employee receives benefits for body as a whole injuries pursuant to subdivision (d)(1)(A) and the employee is subsequently no longer employed by the pre-injury employer at the wage specified in subdivision (d)(1)(A) within four hundred (400) weeks of the day the employee returned to work for the pre-injury employer, the employee may seek reconsideration of the permanent partial disability benefits….

(iii) Notwithstanding this subdivision (d)(1)(B), under no circumstances shall an employee be entitled to reconsideration when the loss of employment is due to…

(b) The employee’s misconduct connected with the employee’s employment.

Tenn.Code Ann. § 50–6–241(d)(1)(B).

Courts in Tennessee have consistently held that “even though an employee might have a statutory right to reconsideration, there is no entitlement to an enlargement of the previous award.” Pigg v. Liberty Mutual Insurance Co., No. M2007–01940–WC–R3–WC, 2009 WL 585962 at *4 (Tenn. Workers Comp. Panel March 9, 2009). Stacey, along with other recent decisions by the Panel, point to the boundaries of the exception to the right to reconsideration.

In Marvin Windows of Tennessee, Inc. v. Gardner, No. W2011–01479–WC–R3–WC, 2012 WL 2674519 (Tenn. Workers Comp. Panel June 8, 2012) an employee settled a workers’ compensation claim and returned to work for his pre-injury employer. Employee was later diagnosed with cancer and took a medical leave of absence for over one year. The employer’s written policy permitted one year of medical leave. When the employee was unable to return to work after one year of medical leave, the employer terminated his employment. The employee then sought reconsideration of his earlier award, but the trial court ruled that he was not eligible for reconsideration.

On appeal, the Panel considered whether the employee’s failure to comply with the employer’s medical-leave policy constituted “misconduct” for purposes of the reconsideration statute. The Panel noted that “[t]he employee behavior need not rise to the level of gross or willful misconduct to satisfy this misconduct standard. Misconduct refers to an employee’s inability to perform his or her job due to reasons unrelated to a workplace injury. The standards for behavior and productivity are governed by reasonable policies established by the employer.” Marvin Windows, 2012 WL 2674519, at *3–4 (Tenn. Workers Comp. Panel June 8, 2012) (internal citations omitted).

Further, “The court must also consider the employer’s need to enforce workplace rules and the reasonableness of the contested rules. Employers should be permitted to enforce workplace rules without being penalized in a workers’ compensation case. Therefore, an employer will not be penalized for enforcement of a policy if the court determines (1) that the actions allegedly precipitating the employee’s dismissal qualified as misconduct under established or ordinary workplace rules and/or expectations; and (2) that those actions were, as a factual matter, the true motivation for the dismissal.” Id., (citations omitted). The Panel in Marvin Windows found that the employer’s medical-leave policy was reasonable and the employee’s inability to comply with that policy constituted “misconduct” that barred reconsideration of the employee’s earlier settlement award. Id.

In Dia v. Imports Collision Center, Inc., No. M2013-01496-WC-R3-WC, 2014 WL 4104591, (Tenn.Workers Comp.Panel Feb. 24, 2014), an employee sought reconsideration of his previous settlement after his employment was terminated. Employee and employer disputed many of the events regarding the circumstances of termination, but it was undisputed that employee had sought to have employee sign a disciplinary form to return to work and that employee failed to do so. The employer claimed that the employee, among other things, was terminated for misconduct, and thus was not entitled to reconsideration of his previous settlement. The Appeals Panel found that the employee’s actions in failing to sign the disciplinary notice constituted misconduct for purposes of the reconsideration statute.

In Stacey, the Employee attempted to receive reconsideration of three previous workers’ compensation claims following his termination. The Employee was terminated after a verbal altercation with an employee of a workout facility provided by the Employer for its employees. Prior to this argument, Employee had completed his workday, left the premises, and returned on his own time to the workout facility. The workout facility was staffed by a contractor, and therefore the employee on the receiving end of the altercation was not an employee of the Employer. Employer had never before disciplined employees for actions occurring at the workout facility.

Based on this fact pattern, the appellate court held that Employee’s termination was not sufficiently connected to his employment in order to meet the “connected with” language under 50–6–241(d)(1)(B) since it occurred offsite, outside of the context of the Employee’s employment and to not involve a clear violation of a policy of the Employer. The Employee was thus entitled to reconsideration of his previous awards and settlements.

As shown in Stacey, Dia, and Marvin Windows, the determination by Tennessee courts as to whether or not a termination meets the standard of misconduct “connected with an employee’s employment” under § 50–6–241(d)(1)(B) is fact-intensive. The closer the employee’s “misconduct” can be found to have violated a clear policy of the employer, the more likely they are to be found to meet the standard for an exception to the employee’s right to reconsideration.

medicalmalpractice
Jason A. Lee, Esq.

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

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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).

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Law
Jason A. Lee, Esq.

Tennessee Court of Appeals Confirms Forum Selection Clauses are Enforceable in Tennessee Contracts

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The Tennessee Court of Appeals recently discussed forum selection clauses found in contracts.  These are clauses that select the jurisdiction and court that will handle any disputes involving the contract.  The case of The Cohn Law Firm v. YP Southeast Advertising & Publishing, LLC, 2015 WL 3883242 (Tenn. Ct. App. 2015) involved a dispute between a plaintiff attorney law firm and an advertising company.  The plaintiff’s attorney sued the advertising company in Shelby County Chancery Court over the dispute.  The defendant advertising company filed a Motion to Dismiss alleging that this jurisdiction was inappropriate due to a forum selection clause in the contract.  The contract between the plaintiff’s attorney law firm and the defendant provided that any lawsuit pertaining to the agreement should only be filed in the United States District Court for the Northern District of Georgia or the Superior Court of Dekalb County, Georgia. (The Cohn Law Firm at 2).  This contract was signed by the plaintiff attorney.

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