Lenda T. Mcclain v. Holiday Retirement Corporation

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 plaintiff appeals the judgment dismissing her suit for benefits she attributes to an injury sustained during the course and scope of her employment. Following the presentation of her evidence, the court granted the defendant's Rule 41.2 Motion for Involuntary Dismissal upon a finding that she failed to carry her burden of proving an accidental injury arising out of employment sufficient to establish a prima facie case of entitlement to benefits. The dispositive issue on appeal is whether the involuntary dismissal was appropriately granted. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J. and JOE C. LOSER, SP. J., joined. William L. Underhill and Michael L. Underhill, Madison, Tennessee, for the appellant, Lenda T. McClain. Richard C. Mangelsdorf, Jr., and Mark W. Honeycutt, II, Nashville, Tennessee, for the appellee, Holiday Retirement Corporation. MEMORANDUM OPINION I. The plaintiff was employed as co-manager, with her husband, of a retirement facility. In addition to a salary, she and her husband were provided an apartment in the facility together with meals and utilities. The circumstances of the termination of her employment are not entirely clear, but we deduce that she was fired after requesting a transfer to another facility. She returned to her apartment to pack her belongings preparatory to vacating the premises and injured her back while packing personal books. The trial judge found that the plaintiff did not sustain an on-job injury because it occurred while she was moving her personal belongings, a task not contemplated as part of the job duties of a co-manager for the retirement facility. II. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of factual findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The panel is not bound by the trial court's findings but conducts an independent examination of the evidence to determine where the preponderance of the evidence lies.