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Harbison v. Brakebill Nursing Home11/9/2000
FILED: NOVEMBER 9, 2000
JUDGMENT ORDER
This case is before the Court upon motion for review filed by the plaintiff-appellant, Jerry Harbison, pursuant to Tenn. Code Ann. § 50-6- 225(e)(5)(B), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference;
Whereupon, it appears to the Court that the motion for review is not well-taken and should be denied; and
It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court.
Costs will be paid by the plaintiff-appellant and his surety, for which execution may issue if necessary.
It is so ORDERED.
Barker, J., not participating
MEMORANDUM OPINION
AFFIRMED
BYERS, Senior Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
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 finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995).
The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988).
The trial court granted the defendant's motion for summary judgment and dismissed the plaintiff's cause of action by reason of the statute of limitations: Tennessee Code Annotated § 50-6-203.
We affirm the judgment of the trial court.
FACTS
In January 1993, the decedent, the late wife of the plaintiff, was allegedly injured during the course and scope of her employment with the defendant. Later that year a workers' compensation action was filed and was then continued several times. In March 1996, the plaintiff's wife was killed in an auto accident; the suit against the defendant, her employer, was pending at that time.
Shortly after the decedent's death, her daughter (the plaintiff's step-daughter) qualified as administrator of the decedent's estate.
On May 2, 1997, the plaintiff filed a suggestion of death and motion for substitution in the workers' compensation suit. The record contains no order making the substitution.
In December 1996, a wrongful death claim was filed by the decedent's heirs and settled, after which time the administrator daughter left town and failed to pursue the workers' compensation claim. Several times before the administrator daughter left, the attorney representing her and the plaintiff's attorney discussed the workers' compensation action, but no action was taken.
On October 10, 1997, the defendant filed a motion to dismiss the workers' compensation action, and the motion was granted without prejudice on December 4, 1997.
On February 9, 1998, the plaintiff filed a motion to remove the daughter as administrator and appoint him in her place. The plaintiff was so appointed on April 9, 1998. After being appointed administrator, the plaintiff filed the complaint at
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