By Jane Salem, Staff Attorney, Court of Workers’ Compensation Claims

The Tennessee Workers Compensation Appeals Board must decide whether to breathe new life into two cases dismissed with prejudice.

The Board held its first set of oral arguments on Aug. 31 at Belmont University College of Law in Nashville, before a courtroom packed with lawyers, Bureau of Workers’ Compensation staff and law students.

First up was Karen Cotton v. HUMACare, Inc.

Ms. Cotton sought death benefits after her husband fell from a cell tower. At the compensation hearing, the Hon. Brian Addington, Kingsport, examined the co-employment arrangement between HUMACare, a professional employment organization or “PEO,” and Central USA Wireless. Judge Addington determined HUMACare was a co-employer, but also found its proportion of wage liability under the statute was zero and dismissed the case.

The problem with that, according to Ms. Cotton’s lawyer, Isaac Conner of Nashville, was that Judge Addington announced an intention to bifurcate the case in three written orders prior to the compensation hearing. Judge Addington additionally announced at the outset of the compensation hearing that the case was bifurcated and he would only hear proof on whether Mr. Cotton was a HUMACare employee.

Ms. Cotton’s trial lawyer “was not informed of any other issues to be decided,” Conner said. “We were told what to provide to the court in order to make a decision. The decision was made on that specific issue. And then the Court went a little beyond that issue and decided, summarily, that the entire case was to be dismissed with prejudice.”

The bifurcation issue is “a strawman’s red herring,” countered Nashville lawyer Byron Lindberg, representing HUMACare. “The trial judge made findings that were wholly within the scope of this hearing.”

Attorney Lindberg noted the written agreement applied only to “clerical workers in Ohio.” He emphasized HUMACare’s principal role was handling payroll, explaining, “There was no money from HUMACare’s coffers that paid Mr. Cotton. Central USA provided money to HUMACare, and HUMACare then passed the money through to Mr. Cotton through payroll administration.”

Ms. Cotton filed a separate case against Central USA Wireless, which settled prior to the compensation hearing involving HUMACare.

Sanction too harsh?

The second case argued before the Appeals Board was Carrie Lightfoot v. Xerox Business Services.

The Hon. Audrey Headrick, Chattanooga, dismissed Ms. Lightfoot’s case for failure to prosecute.

Ms. Lightfoot’s attorney, Art Grisham of Chattanooga, characterized the dismissal, four and a half months following an incomplete expedited hearing, as “way too short a time,” emphasizing his client never had an opportunity for a full hearing on the merits. Ms. Lightfoot, an imaging tech, alleged work-related injuries after falling off a chair.

Attorney Grisham argued the power to dismiss must be exercised “most sparingly,” and, “The right to a hearing should not be impaired or denied.”

Judge Headrick convened the expedited hearing early in the case, which wasn’t completed because Ms. Lightfoot “became emotional,” according to the order. After sustaining the alleged work injury, Ms. Lightfoot suffered a stroke, placing her competency at issue, according to attorney Grisham.

At the expedited hearing, he asked for time to obtain an evaluation, but that never happened. Instead, Judge Headrick scheduled a series of court appearances where attorney Grisham either failed to attend or reported no progress due to his own health problems or computer glitches within his office.

Attorney Grisham acknowledged Judge Headrick was “irritated” with him. He maintained, however, that lesser sanctions were appropriate, such as holding him in contempt or dismissing the case without prejudice. He said, “I can take it. I can take punishment. I’ve done it before. But she shouldn’t have dismissed Ms. Lightfoot’s case. … She needs to have her day in court.”

Judge Headrick didn’t abuse her discretion, countered attorney Fred Baker of Cookeville, representing Xerox Business Services. She cautioned the case could not sit inactive on her docket and warned in written orders re-scheduling it that it might be dismissed with prejudice, Baker reasoned. Further, attorney Grisham’s actions are imputed to Ms. Lightfoot because he acted as her agent, and Ms. Lightfoot was actively involved in her case.

There were “multiple hearings, multiple orders, [and] multiple instances where they were ignoring the rules,” attorney Baker said. “There were many, many chances they were given.”

Each lawyer had 25 minutes to present his case, with the appellant afforded the opportunity to reserve five minutes for rebuttal. The Appeals Board judges, Hon. Marshall Davidson, Hon. Timothy Conner, and Hon David Hensley, each questioned the advocates rigorously but respectfully.

It is anticipated the Board will release decisions on the cases by early October.

Enjoy summer’s final days.