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Fletcher v. Wausau Insurance Co.6/18/1998
ROANE CHANCERY
Hon. Frank V. Williams, Chancellor
MEMORANDUM
AFFIRMED.
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and Conclusions of law.
The trial court awarded plaintiff, William Fletcher, 20% permanent partial disability to the body as a whole and other statutory benefits against defendant, Wausau Insurance Company, and defendant-employer, Tanknology Corporation International. The claim was dismissed as to defendant, National Surety Corporation, and there has been no appeal from the order of dismissal.
Defendant Wausau has appealed insisting (1) it was not the employer's insurer in Tennessee and therefore not subject to being sued in Tennessee, (2) that T.C.A. § 50-6-115 has no application to the case as plaintiff's contract for hire was not made in Tennessee nor was the employment principally localized within Tennessee, and (3) the action in Tennessee should be barred under the doctrine of election of remedies.
Plaintiff began employment with Tanknology during January 1990 as a result of a contract for hire in Texas. He was employed as a tester and traveled with a mobilized unit conducting tests on underground storage tanks for major oil companies. He was assigned to the southeast region and this territory covered seven states including Tennessee. He testified he traveled in his work about seventy-five percent of the time and he spent about 30% of his time working in Tennessee.
On March 26, 1991, he sustained a back injury while working in Asheville, North Carolina. He saw Dr. Rick Longie on March 28, 1991 in Chattanooga, Tennessee. He later was treated by Dr. Alvin Spunt in Harriman, Tennessee, because Dr. Spunt was closer to his residence in Kingston, Tennessee, where he and his family were living.
Dr. Longie, a chiropractor, testified by deposition and stated his office received permission from plaintiff's employer in Houston, Texas to treat plaintiff and that Wausau Insurance Company, Houston, Texas, was identified as the employer's workers' compensation insurance carrier. He forwarded claims to the insurance company and was paid certain benefits by Wausau on plaintiff's account. His total bill was $1645.
Dr. Spunt, also a chiropractor, first saw plaintiff on April 12, 1991. His testimony was by deposition and he stated he had received permission to treat plaintiff from both the employer and Wausau Insurance Company. His total bill was $5300 and a balance of $1420 existed when the deposition was taken. He testified Wausau had made certain payments on the account. At one point, Wausau disputed certain charges and the doctor's office had to fill out some forms which were mailed to the Texas Workers' Compensation Board.
In awarding benefits to plaintiff, the trial court found plaintiff was a resident of Tennessee; his injury occurred out-of-state in North Carolina; that plaintiff's employment was "principally localized" within Tennessee; that the doctrine of election of remedies did not bar the action as plaintiff had made no choice or election of remedies but merely received benefits from Wausau by payment of certain medical expenses; and that the employer, Tanknology, identified Wausau as the workers' compensation insurance carrier, it had paid benefits on plaintiff's behalf and should not now be heard to deny responsibility for benefits in the present action.
The case is to be reviewed on appeal de novo accompanied by a presumption of the correct
Page 1 2 Tennessee Personal Injury Attorneys
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