Gloria Ann Johnson v. World Color Press, Inc.

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 defendant World Color Press, Inc. appeals the judgment of the Circuit Court of Dyer County which denied defendant's claim for set-off for short-term disability benefits paid by defendant under its disability plan. We find that the trial court erred in its application of Tenn. Code Ann. _ 5-6- 114 and reverse the trial court's judgment on that issue. We further find that plaintiff waived consideration on appeal of her claim that defendant failed to establish that the disability plan was "employer funded" as required by the statute. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded HENRY D. BELL, SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Jeffrey L. Lay and Gary H. Nichols, Dyersburg, Tennessee, for the appellant, WorldColor Press, Inc. Jay E. DeGroot, Jackson, Tennessee, and Tanda Rae Grisham, Memphis, Tennessee, for the appellee, Gloria Ann Johnson. MEMORANDUM OPINION The plaintiff was injured at work after the effective date of the 1996 amendment to the T.C.A. _ 5-6-114 under which defendant claims a right of set-off. 1 T.C.A. _ 5-6-114 provides as follows: (a) No contract or agreement, written or implied, or rule, regulation or other device, shall in any manner operate to relieve any employer in whole or in part of any obligation created by this chapter except as herein provided. (b) However, any employer may set off from temporary total, temporary partial, and permanent partial and permanent total disability benefits any payment made to an employee under an employer funded disability plan for the same injury, provided that the disability plan permits such an offset. Such an offset from a disability plan may not result in an employee receiving less than the employee would otherwise receive under the workers' compensation law. In the event that a collective bargaining agreement is in effect, this provision shall be subject to the agreement of both parties. The record on appeal consists of the technical record and a verbatim transcript of trial excerpts which includes only the testimony of Mrs. Christie Shannon, defendant's human resources manager. She testified as to the existence of defendant's short term disability program, the provisions of the plan and that payments totaling $5,826.82 were made to plaintiff following her injury. The witness was unable to produce at trial a copy of the short term disability plan. The other excerpts are the findings and conclusions of the trial judge stated from the bench. The court found that the injury was compensable and awarded temporary total disability in the amount of $6,82.54 and a lump sum based upon a finding of thirty percent (3%) permanent partial disability to the body as a whole. Before determining medical expense and discretionary costs issues the trial judge addressed counsel as follows: The issue then becomes one of the applicability of T.C.A. 5-6- 114(b). That statute deals with set off for payments by disability plans. . . . . The question is today, does the defendant receive benefits or receive offsets for any short-term disability that it may have paid to the plaintiff. The attorneys for both sides have done a good job here today of explaining this case and explaining the applicability of this Statute. It is the defendant's position that this Statute applies and that they should receive the credit for the $5,826.82 that has been paid by the defendant to the plaintiff as the result of the short-term disability. 2