Charlotte Hull v. Emro Marketing Company

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 found that the plaintiff suffered an injury by accident on February 23, 1995 and was entitled to an award of 22 percent permanent partial impairment to the body as a whole ( $14,8. for permanent partial disability and $96. for temporary total disability payable in a lump sum), medical expenses incurred after March 9, 1995, and future medical treatment caused by the injury. The trial court ruled that Emro Marketing Company ("Emro") was liable for the award because it was the employer at the time of the most recent injury that bore a causal relation to the plaintiff's incapacity. Emro raises the following issues: 1. Whether the Chancellor erred in finding the subsequent employer liable under the last injurious injury rule when the subsequent injury was not suffered in the scope of the employee's employment with the subsequent employer. 2. Whether the Chancellor erred in applying the last injurious injury rule when the employee's initial injury was the strongest causal link to the disability of the employee, who had not fully recovered from her initial injury? The plaintiff contends the trial court properly found Emro liable, but says if it is not then Kwik Sak, Inc. ("Kwik Sak") and Reliance Insurance Company ("Reliance") are liable. Kwik Sak and Reliance say that Emro is liable as found, but if it is not then the plaintiff has not appealed from the action of the trial judge dismissing them as defendants. We find the trial judge erred in applying the repetitive injury rule and/or the last injurious injury rule in this case and find Kwik Sak and Reliance were the insurers at the time of the plaintiff's injury. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the 2