Tucker v. Ercl

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, Dorothy Tucker, has appealed from the action of the trial court in dismissing her complaint and refusing to reconsider the issue of whether disputed material issues of fact exist. Defendant employer, ERCL, Inc., and defendant insurance carrier, Lumbermen's Mutual Casualty Company, have filed a motion to dismiss the appeal on the ground a notice of appeal was not timely filed within thirty days after the entry of an order sustaining a motion for summary judgment in favor of the defendants. The motion for summary judgment was filed on January 13, 1995, and was supported by a deposition from plaintiff's treating doctor stating that there was no permanent impairment as a result of plaintiff's injury. Temporary total disability benefits as well as existing authorized medical expenses had been paid. Plaintiff did not file an opposing affidavit or deposition and an order was eventually entered on March 22, 1995, sustaining the motion and dismissing the case. On April 2, 1995, plaintiff filed a motion pursuant to Rule 59, T.R.Civ.P., requesting the court to reconsider, vacate the order of dismissal and set the case for trial. The motion was styled "Motion for Reconsideration" and was supported by an affidavit from Dr. Scott L. Parson, a chiropractor, stating his examination of plaintiff indicated she had a l% impairment due to the injury of her elbow. The trial court denied the motion stating the affidavit came too late. This order was entered on January 5, 1996, and a notice of appeal was filed on January 1, 1996, reciting the appeal was being taken from the entry of the two orders of the trial court. Defendants contend it is well established a motion to reconsider will not toll the thirty day period after entry of a final judgment and cite the cases of Anthony v. Kelly Foods Inc., 74 S.W.2d 35 (Tenn. 1986) and Daugherty v. Lumbermen's Underwriting Alliance, 798 S.W.2d 754 (Tenn. 199). In the Anthony case, a 2