All posts by Injury & Disability Lawyers

No Lien for the County on Personal Injury Case

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Mr. Slaughter, an EMT for Hamilton County, Tennessee, was injured as the result of a car wreck on April 5, 2010. The injury took place while Mr. Slaughter was working for the County. Hamilton County opted out of the Tennessee workers’ compensation program. Instead, the County operated a self funded on-the-job injury program. As part of the on-the-job injury program, the County paid Mr. Slaughter $7,512.29 in benefits related to his injury. Mr. Slaughter also had a tort claim against the at-fault driver. The County filed a lien on the tort case, seeking to recover the amount of money paid to Mr. Slaughter per the on-the-job injury program.
Mr. Slaughter’s claim was settled for $24,600.00. For whatever reason, Mr. Slaughter’s case went to trial after settlement, and he was awarded $58,000.00 in damages by a jury. Thereafter, the trial court held a hearing on the issue of whether the County could recover from Mr. Slaughter’s settlement. The trial court denied the County’s claim, and the matter was appealed.
The reviewing court upheld the trial court’s decision, holding: (a) there was no statutory or contractual lien; and, (b) Mr. Slaughter was not made-whole by the settlement, and as a result, the County was not entitled to subrogation. (Slaughter v. Mills, (Tenn.Ct.App. 12/19/2019).
A few additional notes: As indicated above, the case was settled before trial, and then proceeded to a jury trial. Typically, settlement make a trial unnecessary. One can only guess that there was an additional defendant involved, who was found by the jury at trial to have not been at-fault. Second, the wreck at issue in this case took place in 2010, and yet the issue of a relatively small subrogation/lien claim was not resolved until 8 years later. For a case that was ultimately worth less than $25,000.00 to not be resolved (assuming no further appeals) for more than eight years is troubling.
Regardless, the Slaughter case is important for personal injury lawyers representing individuals who were injured on the job while working for an governmental entity that may not be subject to the workers’ compensation act, and thus, may not have a right of recovery.

Peterbilt is Recalling 2000 Trucks Due Tire Safety Defect That Can Cause a Crash

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Peterbilt is recalling more than 2,000 trucks because they reach speeds greater than their tires are built to handle. The move by Peterbilt in the U.S. and Canada raises questions about the safety of thousands of other big trucks on U.S. roads. Peterbilt is recalling certain tractors from 2009 to 2016 because they can exceed 75 miles per hour, even though the maximum speed their Michelin tires can handle is 65 mph. Such trucks mainly haul automobiles.  The tires on the front or steer axle can fail and cause a crash.

Media outlets are reporting that dealers will reprogram computers so the trucks can’t go over 65.

The National Highway Traffic Safety Administration is encouraging other truck makers with similar risks to fix the problem. But at this time, the agency is not seeking more recalls. NHTSA began investigating Michelin’s 22.5” diameter XZA tires in 2014, and one of the findings was travelling at speeds higher that the tire can handle can lead to tire failure.

In any crash involving a Peterbilt truck manufactured since 2009, such tire failure should be considered as a possible cause, keeping in mind that the recommended maximum speed for certain Michelin tires is only 65 mph.  If the driver was exceeding 65, he was violating that safety recommendation, even if 65 was within the posted speed limit.

Georgia Supreme Court Confirms that Fault Can Be Allocated to Employer Immune from Liability due to Exclusive Remedy

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Before the Georgia Supreme Court issued its apportionment decision in Zaldivar v. Prickett, 297 Ga. 589 (2015), the United States District Court for the Northern District of Georgia had certified the following question to the Supreme Court, and it has now answered:

Does OCGA § 51-12-33 (c) allow the jury to assess a percentage of fault to the non-party employer of a plaintiff who sues a product manufacturer and seller for negligence in failing to warn about a product danger, even though the non-party employer has immunity under OCGA § 34-9-11?

“Unless there is a compelling reason to treat nonparty employers with immunity under the Workers’ Compensation Act differently than nonparties with other defenses or immunities against liability, Zaldivar requires an affirmative answer to the certified question. We see no such compelling reason, and so, we adhere to Zaldivar and respond to the District Court in the affirmative.”

Walker v. Tensor Machinery, LTD, S15Q1222 (11/16/15).

It is not uncommon for an employee to be severely injured by a dangerous or defective machine, giving rise to a products liability action against the manufacturer of the machine.  Unfortunately, in Georgia, that manufacturer may be able to reduce its liability by offering evidence that the employer was at fault, even though the employee cannot sue his or her employer for damages, as the employee’s remedy against the employer is limited to workers compensation benefits.

As with the Supreme Court’s opinion in Zaldivar, this most recent decision was not unexpected, but it is certainly disappointing.

Only Misconduct of a Quasi Criminal Nature will Bar Georgia Employees from Recovering Workers Compensation Benefits

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Burdette was a cell tower technician.  It was his first day back at work, and he was assigned to work on the top of a cell tower with the lead tower hand. Prior to the shift, the supervisor had instructed the crew to climb down the towers and not to use controlled descent, which is similar to rappelling, and sometimes used in the industry. The employer required its employees to be trained such descents.  Burdette and the lead man worked together on the same cell tower all day, and when they were done, the lead man instructed Burdette to climb down the tower, but Burdette responded that he wanted to use controlled descent instead:

“I told him no, man, just climb down. Might as well just climb down … . [W]e don’t have a safety rope up here for you to grab. He told me he had done this so many times. I was like, dude, they’re going to be mad if you do it. [Our supervisor] will be mad if you do it and, … you might not have a job or you might, you know, have to deal with the consequences if you don’t listen.”

However, Burdette prepared his equipment and began a controlled descent, but fell, causing severe injuries to his ankle, leg, and hip.  Should he be barred from receiving workers compensation benefits?

The Georgia Court of Appeals determined he would not be barred, even though he had violated instructions from his lead man and the supervisor.  In Burdette v. Chandler Telecom, LLC, 2015 Ga. App. LEXIS 619 (10/30/15), the Court found that the administrative law judge and the State Board of Workers’ Compensation had erred in finding that the claim was barred because the injury resulted from his own willful misconduct, and they reversed the Board’s decision.

“Our Supreme Court has . . . explained that willful misconduct “involves conduct of a quasi criminal nature, the intentional doing of something, either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.” Indeed, the general rule is that “mere violations of instructions, orders, rules, ordinances, and statutes, and the doing of hazardous acts where the danger is obvious, do not, without more, as a matter of law, constitute [willful] misconduct.””

This is an important decision, given the trend in some states, including Tennessee, to find that mere violation of work safety instructions constitutes willful misconduct sufficient to relieve the employer of responsibility for the resulting medical bills and disability benefits. In Burdette the Court of Appeals followed Georgia precedent and reached the correct decision.  Burdette was not drunk or high on drugs, and he did not deliberately try to injure himself.  Allowing an employer to escape responsibility for workers compensation benefits in such a circumstance has repercussions far beyond the immediate parties involved. For instance, if the workers compensation insurer was not required to pay in such circumstances, the hospital would not get paid for the treatment it provided and the burden would ultimately fall on the public.

Tennessee Supreme Court Modifies Summary Judgment Standard

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Yesterday, in Michelle Rye v. Women’s Care Center of Memphis, the Tennessee Supreme Court overruled Hannan v. Alltel Publishing Co., issued in 2008, and returned Tennessee to a summary judgment standard consistent with the Federal Rules of Civil Procedure.  The Court reasoned that the Hannan decision “has functioned in practice to frustrate the purposes for which summary judgment was intended.”  As a practical matter, it remains to be seen what the impact will be of yesterday’s ruling.  The Legislature had already promulgated legislation in 2011 “with the stated purpose ‘to overrule . . . Hannan.'”   The Rye decision could very well be a simple judicial affirmation of the legislation passed in 2011, and if so, the decision does not necessarily change the law.  That being said, the Rye decision is a clear signal to the trial courts that Hannan is no longer the law.

To read a complete copy of the decision, please click here.

What is an Arm Worth?

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In a shocking comparison of the differences in workers compensation benefits from state to state, NPR and Propublica just released a nationwide study, in conjunction stories on NPR’s Morning Edition radio program this week.  To illustrate, they compared the benefits available in Alabama to the benefits available in Georgia for the loss of an arm on the job, and interviewed Josh Potter of Ringgold, Georgia.  Josh lost his left hand and most of his forearm in an accident at Unique Fabrications in LaFayette, GA.  While he will never be made whole, he has been fitted with a remarkable prosthetic arm, and is doing well, considering the circumstances.  The financial adjustments have been very difficult, however, for him and his family as workers compensation benefits do not replace a paycheck.  He fortunate that the accident did not happen in Alabama, however, where an amputated arm was only worth $49,000.

Click here for the full story on Josh.

For the full report, “The Demolition of Workers’ Comp”, prepared by Michael Grabell of Propublica and Howard Berkes of NPR, click here.

Labeling Fed Ex Drivers as Independent Contractors Does Not Necessarily Make Them So

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Although we generally confine our blog posts to developments in the law from Tennessee, Georgia and Alabama (as well as law firm announcements), this California case is worthy of comment.

In Alexander v. FedEx Ground Package System, Inc., a major decision by the 9th Circuit Court of Appeals (August 27, 2014) the Court determined that Federal Express could not necessarily avoid claims by the drivers for employment expenses and unpaid wages under California law, or duck federal liability under FMLA, by calling the drivers “independent contractors”:

“Labeling the drivers “independent contractors” in FedEx’s Operating Agreement does not conclusively make them so when viewed in the light of (1) the entire agreement, (2) the rest of the relevant “common policies and procedures” evidence, and (3) California law.”

This decision could have broad application nationally to other types of claims against Fed Ex. As the Court stated, “As a central part of its business, FedEx Ground Package System, Inc. (“FedEx”), contracts with drivers to deliver packages to its customers. The drivers must wear FedEx uniforms, drive FedEx-approved vehicles, and groom themselves according to FedEx’s appearance standards.  FedEx tells its drivers what packages to deliver, on what days, and at what times. Although drivers may operate multiple delivery routes and hire third parties to help perform their work, they may do so only with FedEx’s consent. FedEx contends its drivers are independent contractors under California law. Plaintiffs, a class of FedEx drivers in California, contend they are employees. We agree with plaintiffs.”

The concurring opinion includes this delightful and appropriate comment:

“Abraham Lincoln reportedly asked, “If you call a dog’s tail a leg, how many legs does a dog have?” His answer was, “Four. Calling a dog’s tail a leg does not make it a leg.” Justice Cardozo made the same point in W.B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 62 (1935), counseling us, when called upon to characterize a written enactment, to look to the “underlying reality rather than the form or label.” The California Supreme Court echoed this wisdom in Borello, saying that the “label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced.’ ”

Tennessee trial judges must explain why they are granting or denying a motion for summary judgment.

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In a unanimous opinion today (7/15/14), Mary C. Smith v. UHS of Lakeside, Inc. the Tennessee Supreme Court has determined that the Tennessee Rules of Civil Procedure require trial judges to explain why they are granting or denying a motion for summary judgment before they ask the lawyer for the winning party to prepare a proposed order.

Motions for summary judgment are requests by one or more parties to a lawsuit for the court to rule on the merits of an issue before a case goes to trial. The court can determine prior to the start of a trial that there is no genuine issue of material fact and all or a portion of the case will come to an end.

In the specific case the Court decided today, Mary C. Smith sued UHS of Lakeside, Inc. in the Shelby County Circuit Court following the death of her husband who had been treated at the Lakeside Triage Center in September 2004. UHS filed motions for summary judgment asking the trial court to dismiss Ms. Smith’s lawsuit. During hearings in March 2010 and September 2011, the trial judge orally granted UHS’s motions but did not explain the basis for her decisions. Instead, the trial judge asked UHS’s lawyer to draft orders that provided the legal basis for her decisions. The trial judge signed the orders prepared by UHS’s lawyer despite Ms. Smith’s objections.

Ms. Smith appealed, and the Court of Appeals set aside the summary judgment orders. The Court of Appeals decided the trial court failed to comply with Rule 56 of the Tennessee Rules of Civil Procedure, which requires trial courts to “state the legal grounds” when deciding a motion for summary judgment.

The Supreme Court agreed that the trial court failed to comply with Rule 56. The Court emphasized that deciding a motion for summary judgment is a high judicial function. The requirement that a trial court state its grounds promotes respect for the judicial system by ensuring that a summary judgment decision is the product of the trial court’s own independent analysis.

The Court held that the trial court erred by granting UHS’s motions for summary judgment without providing legal grounds and by asking UHS’s lawyers to supply the orders that articulated the reasons for the court’s decision. The Court concluded the trial court must, “upon granting or denying a motion for summary judgment … state the grounds for its decision before it invites or requests the prevailing party to draft a proposed order.”

In this case, the Court determined the contested orders were not the product of the trial court’s independent judgment, therefore the case was returned to the trial court for further proceedings.

Drastic Cuts in Tennessee Workers’ Compensation Benefits Coming For Accidents After July 1st:

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Governor Haslam’s Workers’ Compensation Reform Bill goes into full effect in Tennessee on July 1st and applies to any worker injured after June 30th.

  • Insurance companies will have even more opportunity to deny coverage based on pre-existing conditions.  The law now provides that all injuries must arise “primarily out of and in the course and scope of employment,” so the injured worker must prove that the employment “contributed more than 50% in causing the injury, considering all causes.”
  • Permanent partial disability (PPD) benefits, which are supposed to provide compensation for future earnings loss due to an injury, will be dramatically scaled back.  PPD awards will be based solely on the impairment rating, multiplied by 450 weeks:
    • An injured worker with a 5% impairment rating will receive only 22.5 weeks of benefits for PPD.
    • If he or she does not return to work, or returns to work earning less, only marginal increases of 1.35 to 1.45 times the impairment rating are available.  For example, a worker with a 5% rating who can’t return to work might be entitled to 30 to 32.6 weeks of benefits.

Thankfully, there is an “escape” clause in the new law that will allow for much larger PPD awards up to 450 weeks for a few workers, if at least three of four factors are proven:

  • Limited education
  • 55 or older
  • No transferable job skills
  • No reasonable employment opportunities locally.

For most workers, however, benefits for permanent disability will be very limited, no matter how devastating the effect of a serious injury is on his or her ability to earn a living in the future.

Better workers compensation benefits may be available through Georgia:

Georgia law may provide better benefits to an injured worker than Tennessee, and in some situations a claim can be filed in either state.  If the accident occurred in Georgia there may be jurisdiction in Georgia.  Even if the accident occurred outside Georgia, if the worker was hired in Georgia and the employer has a place of business there or if the worker lives in Georgia, the claim can be brought in Georgia.

If there is any possibility of dual jurisdiction in Georgia, call us.

Workers injured on the job should not blindly accept an insurance company’s decision to handle a workers compensation case as a Tennessee case.  If there might be jurisdiction in Georgia, call us immediately!

Here are just two examples of dual jurisdiction in Tennessee and Georgia:

  • A Tennessee company that routinely sends service technicians into Georgia to serve or repair equipment, such as heat and air units, industrial machinery or plumbing may be subject to Georgia workers compensation law if the accident occurs in Georgia.
  • A Tennessee trucking company that hires workers through its terminal in Georgia will be subject to Georgia workers compensation laws regardless of where the accident occurs.
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