Atwell v. Colonial

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiff, S. Scott Atwell, has appealed from the trial court's action in modifying a portion of a judgment which provided for a structured settlement of a workers' compensation claim. Originally the parties to this action entered a judgment on September 17, 1993, finding plaintiff to be totally (1%) disabled and providing the award would be payable as follows: a. Lump sum payment of $55,235. upon the entry of judgment. b. Payment of $588. every two weeks for a one year period. c. Lump sum payment of $14,34. on August 3, 1994. d. Lump sum payment of $14,34. on February 28, 1995. e. Lump sum payment of $15,37. on February 28, 1996. Upon learning plaintiff was engaged in certain work activities, the defendant, Colonial Freight Systems, Inc., filed a motion on March 8, 1995, to modify the last two annual payments upon the ground the evidence indicated the employee was not totally disabled. This motion was filed pursuant to the provisions of T. C. A. _ 5-6- 231 and Rule 6, T. R. Civ. P. After conducting a hearing, the trial court found there had been a "change of circumstances" and entered an order relieving the employer of the responsibility of paying the last two annual payments. The order did not state whether relief was granted pursuant to the statute or Rule 6 or both. This ruling was based upon evidence the employee had been working at a construction site in South Carolina over a certain period of time. Evidence of this nature was produced at the hearing by a private investigator who had observed the employee and a video made at the construction site. On appeal the employee argues the payments which the court abated were classified as lump sum payments and were not subject to modification under the statutory language and further that the evidence did not justify relief under Rule 6. 2