Wm. Fletcher v. WaUSAu Ins. Co.

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. The trial court awarded plaintiff, William Fletcher, 2% permanent partial disability to the body as a whole and other statutory benefits against defendant, Wausau Insurance Company, and defendant-employer, Tanknology Corporation International. The claim was dismissed as to defendant, National Surety Corporation, and there has been no appeal from the order of dismissal. Defendant Wausau has appealed insisting (1) it was not the employer's insurer in Tennessee and therefore not subject to being sued in Tennessee, (2) that T.C.A. _ 5-6-115 has no application to the case as plaintiff's contract for hire was not made in Tennessee nor was the employment principally localized within Tennessee, and (3) the action in Tennessee should be barred under the doctrine of election of remedies. Plaintiff began employment with Tanknology during January 199 as a result of a contract for hire in Texas. He was employed as a tester and traveled with a mobilized unit conducting tests on underground storage tanks for major oil companies. He was assigned to the southeast region and this territory covered seven states including Tennessee. He testified he traveled in his work about seventy-five percent of the time and he spent about 3% of his time working in Tennessee. On March 26, 1991, he sustained a back injury while working in Asheville, North Carolina. He saw Dr. Rick Longie on March 28, 1991 in Chattanooga, Tennessee. He later was treated by Dr. Alvin Spunt in Harriman, Tennessee, because Dr. Spunt was closer to his residence in Kingston, Tennessee, where he and his family were living. Dr. Longie, a chiropractor, testified by deposition and stated his office received permission from plaintiff's employer in Houston, Texas to treat plaintiff and that Wausau Insurance Company, Houston, Texas, was identified as the employer's workers' compensation insurance carrier. He forwarded claims to the insurance 2