Bill Purcell v. The Lilly Company and Federated Insurance Company 02S01-9508-CV-00073
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. George H. Brown, Jr.,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employee or claimant, Purcell, contends that the evidence preponderates against the trial court's findings (1) that he did not have a reasonable excuse for failure to give the written notice required by Tenn. Code Ann. section 5-6-21 and (2) that there was insufficient proof of a causal connection between his injury and a work- related accident. The panel has concluded that the judgment should be affirmed. The claimant worked for the employer, The Lilly Company, as a field service battery technician, replacing or servicing heavy duty batteries. In November of 1992, during a week-long trip servicing customers in the Tupelo, Mississippi area, he awoke with pain in his right buttock and leg. The pain subsided after about half an hour. The claimant later was diagnosed with a ruptured disk. There is no evidence that the pain was precipitated by any particular fortuitous occurrence, but the claimant's own testimony was that "I thought maybe I just bumped myself on some equipment the day before at the customer's location...." He told his supervisorabout the pain but gave no written notice and said nothing about his thought concerning the source of it. In fact, he filed a claim with his health insurance carrier on January 27, 1993, claiming that the injury was work-related, although he had never made such a claim to the employer. It was also during that month that his doctors had told him his injury could be work-related. He had been terminated by the employer on January 15, 1993, and had consulted an attorney,because he suspected he had a workers'compensation claim. The employer did not know of any claim that the injury was work-related until April 8, 1993, when it received written notice, dated two days earlier, from the claimant's attorney. The trial judge dismissed the case for failure of notice, or a reasonable excuse for such failure, and because the proof failed to establish that the claimant's injury was one arising out of and in the course of the employment. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer 2
Shelby
Workers Compensation Panel
Bill Purcell v. The Lilly Company and Federated Insurance Company 02S01-9508-CV-00073
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. George H. Brown, Jr.,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employee or claimant, Purcell, contends that the evidence preponderates against the trial court's findings (1) that he did not have a reasonable excuse for failure to give the written notice required by Tenn. Code Ann. section 5-6-21 and (2) that there was insufficient proof of a causal connection between his injury and a work- related accident. The panel has concluded that the judgment should be affirmed. The claimant worked for the employer, The Lilly Company, as a field service battery technician, replacing or servicing heavy duty batteries. In November of 1992, during a week-long trip servicing customers in the Tupelo, Mississippi area, he awoke with pain in his right buttock and leg. The pain subsided after about half an hour. The claimant later was diagnosed with a ruptured disk. There is no evidence that the pain was precipitated by any particular fortuitous occurrence, but the claimant's own testimony was that "I thought maybe I just bumped myself on some equipment the day before at the customer's location...." He told his supervisorabout the pain but gave no written notice and said nothing about his thought concerning the source of it. In fact, he filed a claim with his health insurance carrier on January 27, 1993, claiming that the injury was work-related, although he had never made such a claim to the employer. It was also during that month that his doctors had told him his injury could be work-related. He had been terminated by the employer on January 15, 1993, and had consulted an attorney,because he suspected he had a workers'compensation claim. The employer did not know of any claim that the injury was work-related until April 8, 1993, when it received written notice, dated two days earlier, from the claimant's attorney. The trial judge dismissed the case for failure of notice, or a reasonable excuse for such failure, and because the proof failed to establish that the claimant's injury was one arising out of and in the course of the employment. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer 2
This is a declaratory judgment action. The complaint seeks a declaration that a loss caused by damage to the plaintiff's building is covered under a commercial property insurance policy issued by The Shelby Insurance Company (Shelby). Following a bench trial, the Chancellor held that there was coverage under the policy and awarded the plaintiff a judgment for $12,352.92. Shelby appeals, arguing that there is no coverage because the premises were vacant at the time of the loss. It also argues tha the loss is not covered because the policy excludes coverage for damages "[c]aused by or resulting from theft." The plaintiff, Ted C. Smith (Smith), raises, as an additional issue, the failure of the trial court to award the statutory bad faith penalty authorized by T.C. A. § 56- 7- 105( a ) .
03C01-9508-CC-00214 03C01-9508-CC-00214
Trial Court Judge: D. Kelly Thomas, Jr.
Blount
Court of Criminal Appeals
Cecelia Teague v. Tecumseh Products Company 02S01-9509-CV-00081
Authoring Judge: Joe H. Walker, III, Judge
Trial Court Judge: Hon. Julian P. Guinn,
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. Employer appeals from an award by the trial court of thirty percent (3%) permanent partial disability to both upper extremities of employee. Findings of Fact Appellate review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). There were no written findings of fact by the trial court. The statement of evidence contained no findings stated by the trial court at trial, and the transcript contains no written findings of fact, other than a finding of permanent partial disability of thirty percent to both upper extremities. This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Henry
Workers Compensation Panel
Cecelia Teague v. Tecumseh Products Company 02S01-9509-CV-00081
Authoring Judge: Joe H. Walker, III, Judge
Trial Court Judge: Hon. Julian P. Guinn,
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. Employer appeals from an award by the trial court of thirty percent (3%) permanent partial disability to both upper extremities of employee. Findings of Fact Appellate review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). There were no written findings of fact by the trial court. The statement of evidence contained no findings stated by the trial court at trial, and the transcript contains no written findings of fact, other than a finding of permanent partial disability of thirty percent to both upper extremities. This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
