2016 Workers’ Compensation Case Update

It has been a busy year with the Tennessee Workers Compensation Appeals Board. This article highlights a few selected cases.

In the matter of Kathy Hamilton v. Kenco Logistic Services, LLC (Docket No. 2015-03-0156), the employee, Kathy Hamilton, was employed by Glaxo Smith Kline at a facility in Knoxville, Tennessee which had a contract with Kenco to operate a certain facility. Ms. Hamilton was an employee of Kenco. Another entity, Genco was taking over the contract for operating the facility for Kenco, and any Kenco employee who wished to remain employed at the facility by the new company had to complete a pre-employment physical examination. During the pre-employment physical, the employee lifted a 50 pound box and suffered a lumbar injury as a result.

After suffering an injury, the employee filed a claim against Kenco for this alleged on the job injury. The trial court conducted a bifurcated hearing and concluded in the first phase of the hearing that an injury did not occur in the course and scope of employment for Kenco or Genco.

The Plaintiff on appeal indicated that she had an implied contract of employment with Genco as a result of her undergoing a pre-employment physical. As a result of this implied employment relationship, she claims that her injury arose primarily out of the course and scope of her employment with Genco.

The Appeals Board affirmed the trial judge’s ruling that dismissal of the claim was proper. In reaching this, the Appeals Board held that a prospective employer’s invitation for an applicant to attend a pre-employment physical does not, on its own, create an employment relationship with the new employer for purposes of the workers’ compensation law. Furthermore, the Board found that the physical did not further the business of her actual employer Kenco and was not on Kenco time. Therefore, the Appeals Board affirmed the dismissal and found that the injury was not compensable.

Another case of note is Jana McQuiddy v. St. Thomas Midtown Hospital (Docket No. 2015-06-0593). This case affirms the importance of a record on appeal. In this particular case, the employee slipped on a liquid at the hospital and filed a claim for workers compensation benefits. At trial, the Plaintiff, representing herself, attempted to introduce medical records but had no viable avenue by which to submit them into evidence. Defense counsel appropriately objected to the introduction of the medical records and the Court would not consider them. Therefore, the Court granted a Motion to Dismiss the case with prejudice and an appeal was taken.

The Appeals Board noted that no record had been filed and therefore the Board was only left to review the pleadings and the Notice of Appeal from the employee. There was no transcript of testimony filed by the employee either. The Board basically affirmed the dismissal of the case by the trial court on the basis that the employee had not submitted a proper record for the Board’s consideration. Even though the employee did attempt to submit medical records to the Appeals Board for consideration, the Appeals Board correctly noted that they had not been submitted at the trial court level. Therefore, those records could not be considered on appeal.

Finally, in the matter of Carrie Lightfoot v. Xerox Business Services, et al. (Docket No. 2015-010233), the trial court dismissed the claim on a motion for dismissal.

This claim stemmed from an employee that fell out of her chair and the chair fell on top of her. The employee initially was representing herself and filed the initial claim documents. At an initial hearing an attorney entered an appearance for the employee and requested an expedited hearing. At the hearing for the expedited hearing, the employee became erratic and the attorney asked for a continuance of the matter until a mental health professional could evaluate the employee. The parties were ordered to come back to the court February 18, 2016.

Counsel for the employee reappeared on February 18, 2016 and indicated that he had a medical condition to preclude him from having his client evaluated mentally. Therefore, a status conference was set for March 14, 2016. At that time, the employee was told that the results of the mental health evaluation would need to be provided to the court. At the March 14, 2016 hearing neither the employee, nor her counsel appeared. All efforts to reach them were futile. A notice issued on that date that the employee and her counsel had until March 28, 2016 to file a request for expedited hearing or request for an initial hearing or the matter would be dismissed with prejudice.

On April 26, 2016 counsel for the employee filed a motion for a hearing on the merits and informed the court that his client was dissatisfied with his services. On May 3, 2016 the trial court entered an order dismissing the claim with prejudice. Thereafter, the employee filed a notice of appeal.

As an apparent basis for the appeal, the employee claimed that she had ineffective assistance of counsel. However, the Appeals Board correctly noted that many of the actions prior to the entry in this case of her attorney had been taken by the Plaintiff and therefore she was clearly competent to act as her own counsel. The Appeals Board indicated that the employee had the opportunity to be heard and that she did not avail herself of these opportunities. The Appeals Board did not find credible the assertions by her attorney that he had not received orders or emails regarding setting of these matters.

Though the Appeals Board noted that there were other options besides dismissal of the case with prejudice, the Appeals Board refused to substitute its judgment for that at trial courts. The Appeals Board’s rationale was that the employee picked her attorney and would never let him withdraw from the case. Therefore, she could not now argue that her attorney was ineffective. The Board further noted that the Plaintiff was not denied access to the courts, but simply failed to avail herself of the court system. The Board also reiterated the long established principle that a litigant may represent herself, or be represented by counsel, but not both.

These three cases are simply highlights of 2016 as it relates to Appeals Board claims. Pro se litigants are required to abide by the same rules and standards as attorneys. The workers compensation claims system is currently in its infancy and these issues will be further hashed out in 2017 and beyond. These insights, of course, are subject to change and may be modified by future decisions. As is often said, the only thing certain in law is change. Stay tuned…

JExum-2015 FClark-2016

By James F. Exum III, Esq. and Frank P. Clark, Esq.

Leitner, Williams, Dooley & Napolitan, PLLC