NOTES TO DECISIONS

1. County Sheriff.

Memorandum of Agreement (MOA) between the United States Immigration and Customs Enforcement and the Metropolitan Government of Nashville and Davidson County, Tennessee, by and through the Davidson County Sheriff's Office, did not violate the Charter of Nashville and Davidson County because the sheriff had authority under the Charter to perform the duties enumerated in the MOA; while Nashville and Davidson County, Tenn., City Charter § 16.05 made the police chief the principal conservator of the peace, it did not expressly prohibit the sheriff from engaging in all activities that could conceivably be considered law enforcement, and the language of the Charter clearly contemplated that the principal conservator of the peace was not the only conservator of the peace. Renteria-Villegas v. Metro. Gov't, 382 S.W.3d 318, 2012 Tenn. LEXIS 734 (Tenn. Oct. 4, 2012).

Memorandum of Agreement between the United States Immigration and Customs Enforcement and the Metropolitan Government of Nashville and Davidson County, Tennessee, by and through the Davidson County Sheriff's Office, did not violate T.C.A. § 50-1-101(b) because the Charter did not prohibit the sheriff from engaging in all law enforcement functions. Renteria-Villegas v. Metro. Gov't, 382 S.W.3d 318, 2012 Tenn. LEXIS 734 (Tenn. Oct. 4, 2012).

50-1-201. Denial of employment because of affiliation or nonaffiliation with labor union or employee organization.

It is unlawful for any person, firm, corporation or association of any kind to deny or attempt to deny employment to any person by reason of the person's membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor union or employee organization of any kind.

Acts 1947, ch. 36, § 1; C. Supp. 1950, § 11366.2 (Williams, § 11412.8); T.C.A. (orig. ed.), § 50-208.

Cross-References. Discharge for refusal to engage in or remain silent about illegal activities, or for legal use of agricultural product, § 50-1-304.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Labor, § 4.

Law Reviews.

Employee Investigations: Representation Rights Expanded to Nonunion Employees (Mark H. Floyd), 36 No. 10 Tenn. B.J. 13 (2000).

UAW-GM Saturn Contract: “Sweetheart Deal” or Novel Labor-Management Agreement? (Jeffrey L. Hall), 17 Mem. St. U.L. Rev. 69 (1986).

Union Organizing of Temporary Employees Subject to New Standards (Mark H. Floyd), 37 No. 1 Tenn. B.J. 23 (2001).

Attorney General Opinions. Applicability, OAG 94-043 (4/4/94).

Proposed Electricians' Licensing Act of 1998 does not require union membership, OAG 98-050 (2/23/98).

Right to work law, union rules and fines, conflicts of interest, remedies, OAG 99-231 (12/15/99).

50-1-202. Contracting for exclusion from employment because of affiliation or nonaffiliation with labor union or employee organization.

It is unlawful for any person, firm, corporation or association of any kind to enter into any contract, combination or agreement, written or oral, providing for exclusion from employment of any person because of membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor union or employee organization of any kind.

Acts 1947, ch. 36, § 2; C. Supp. 1950, § 11366.3 (Williams, § 11412.9); T.C.A. (orig. ed.), § 50-209.

Law Reviews.

Procuring Breach of Contract — The Tennessee Treble Damage Statute (Telford E. Forgety), 5 Mem. St. U.L. Rev. 599 (1975).

50-1-203. Exclusion from employment for payment of or failure to pay union or employee organization dues.

It is unlawful for any person, firm, corporation or association of any kind to exclude from employment any person by reason of the person's payment of or failure to pay dues, fees, assessments or other charges to any labor union or employee organization of any kind.

Acts 1947, ch. 36, § 3; C. Supp. 1950, § 11366.4 (Williams, § 11412.10); T.C.A. (orig. ed.), § 50-210.

Cross-References. Discharge for refusal to engage in or remain silent about illegal activities, or for legal use of agricultural product, § 50-1-304.

Law Reviews.

Rights and Remedies of Members in Internal Union Controversies in the Southern Jurisdictions, 12 Vand. L. Rev. 888 (1959).

Attorney General Opinions. Fair share legislation and the right to work law, OAG 93-36 (4/14/93).

50-1-204. Prohibition against execution of an agreement with union or employee organization that includes maintenance of membership clause.

It is unlawful for any person, firm, corporation or association of any kind operating in this state to execute an agreement with a union or employee organization of any kind that includes a maintenance of membership clause prohibiting employees from withdrawing from a union or employee organization prior to the agreement's expiration. This section shall not apply to a city, town, municipality or county, including a county having a metropolitan form of government.

Acts 2011, ch. 178, § 2.

Compiler's Notes. Former § 50-1-204 (Acts 1947, ch. 36, § 5; C. Supp. 1950, § 11366.6 (Williams, § 11412.12); T.C.A. (orig. ed.), § 50-212; Acts 1989, ch. 591, § 111), concerning penalties for violations of this part, was transferred to § 50-1-205 by Acts 2011, ch. 178, § 1, effective May 5, 2011.

Acts 2011, ch. 178, § 3, provided that the act, which enacted this section, shall apply to agreements entered into on or after May 5, 2011.

For the preamble to the act concerning the state of Tennessee being a right to work state, please refer to Acts 2011, ch. 178.

50-1-205. Penalty.

1. Any person, firm, corporation or association of any kind violating any of the provisions of this part commits a Class A misdemeanor.
2. Each day that any person, firm, corporation or association of any kind remains in violation of this part is deemed to be a separate and distinct offense, punishable in accordance with this section.

Acts 1947, ch. 36, § 5; C. Supp. 1950, § 11366.6 (Williams, § 11412.12); T.C.A. (orig. ed.), § 50-212; Acts 1989, ch. 591, § 111; T.C.A. § 50-1-204; Acts 2011, ch. 178, §§ 1, 2.

Compiler's Notes. Former § 50-1-204 was transferred to this section by Acts 2011, ch. 178, § 1, effective May 5, 2011.

Acts 2011, ch. 178, § 3, provided that the act, which transferred former § 50-1-204 to this section, shall apply to agreements entered into on or after May 5, 2011.

For the preamble to the act concerning the state of Tennessee being a right to work state, please refer to Acts 2011, ch. 178.

Cross-References. Penalty for a Class A misdemeanor, § 40-35-111.

Law Reviews.

Labor Law — 1961 Tennessee Survey (Paul H. Sanders), 14 Vand. L. Rev. 1317 (1961).

50-1-206. Right to work.

1. It is the public policy of this state that employees of this state have the right to:
   1. Employment without regard to any person’s refusal to join or affiliate with, or decision to withdraw from or cease membership in, any labor union or employee organization of any kind;
   2. Be employed free from the restraints of any contract, combination or agreement, written or oral, that provides for exclusion from employment of any person due to their refusal to join or affiliate with, or decision to withdraw from or cease membership in, any labor union or employee organization of any kind;
   3. Be employed without regard to any person’s refusal to pay dues, fees, assessments or other charges to any labor union or employee organization of any kind; and
   4. Decertify a union or other bargaining representative upon compliance with the applicable federal law.
2. Private employers may physically post notice of the rights described in this section, at locations where notices are normally posted, informing employees about their rights under this section, or may physically disseminate such notice to employees if no such normal location for posting exists.
3. To assist private employers in informing workers of their rights as described in this section, the commissioner of labor and workforce development shall create model notice language reiterating the public policies of this state espoused in this part, which may be used by private employers accordingly.
4. The commissioner shall designate those persons in the department responsible for carrying out the commissioner’s power, duties and responsibilities under this part.

Acts 2012, ch. 826, § 1.

Compiler's Notes. For the Preamble to the act concerning an employee’s right to forfeit a union or employee membership, please refer to Acts 2012, ch. 826.

50-1-207. Prohibition against requiring any employer or employee to waive their rights under the National Labor Relations Act or requiring acceptance or agreement to any provisions that are mandatory or non-mandatory subjects of collective bargaining under federal labor laws.

1. For purposes of this section:
   1. “Employee” means a natural person who performs services for an employer for valuable consideration, and does not include a self-employed independent contractor;
   2. “Employer” means a person, association, or legal or commercial entity receiving services from an employee and, in return, giving compensation of any kind to such employee;
   3. “Federal labor laws” means the National Labor Relations Act, compiled in 29 U.S.C. § 151 et seq., and the Labor Management Relations Act, compiled in 29 U.S.C. § 141 et seq., as amended, presidential executive orders, and federal administrative regulations relating to labor and management or employee and employer issues, and the United States Constitution as amended;
   4. “Multi-employer association” means a bargaining unit composed of independent employers who associate together to negotiate jointly with one (1) or more labor organizations representing the employees of the independent employers within the bargaining unit;
   5. “Political subdivision” means any local governmental entity, including, but not limited to, any municipality, metropolitan government, county, utility district, school district, public building authority, and development district created and existing pursuant to the laws of this state, or any instrumentality of government created by any one (1) or more of the named local governmental entities; and
   6. “State” means the state of Tennessee and its political subdivisions, agencies and instrumentalities.
2. No law, ordinance, or regulation shall impose any contractual, zoning, permitting, licensing, or other condition that requires any employer or employee to waive their rights under the National Labor Relations Act.
3. No law, regulation, or ordinance shall require, in whole or in part, an employer or multi-employer association to accept or otherwise agree to any provisions that are mandatory or non-mandatory subjects of collective bargaining under federal labor laws, including but not limited to, any limitations on an employer or multi-employer association's rights to engage in collective bargaining with a labor organization, to lock out employees, or to operate during a work stoppage; provided, that this subsection (c) shall not invalidate or otherwise restrict the state from requiring the use of project labor agreements to the extent permissible under federal labor laws.
4. This section shall be interpreted and enforced consistent with the National Labor Relations Act.
5. 1. Any agreement, contract, understanding, or practice, written or oral, implied or expressed, between any employer and any labor organization required in violation of this section is declared to be unlawful, null, and void, and of no legal effect.
   2. An employer or employee may seek injunctive relief in the chancery court of Davidson county to prevent the state from violating this section.

Acts 2013, ch. 277, § 1.

Compiler's Notes. For the Preamble to the act concerning the regulation of labor neutrality agreements, please refer to Acts 2013, ch. 277.

Law Reviews.

Does “Why” or “What” Matter: Should Section 302 Apply to Card Check Neutrality Agreements? 45 U. Mem. L. Rev. 249 (2014).

50-1-208. Relationship between franchisee and franchisor.

1. Notwithstanding any voluntary agreement entered into between the United States department of labor and a franchisee, neither a franchisee nor a franchisee's employee shall be deemed to be an employee of the franchisor for any purpose.
2. For purposes of this section “franchisee” and “franchisor” have the same definitions as set out in 16 CFR 436.1.

Acts 2015, ch. 114, § 1.

Effective Dates. Acts 2015, ch. 114, § 2. April 10, 2015.

Part 3
Working Conditions Generally

NOTES TO DECISIONS

1. Applicability.

Amendment to provide for agency enforcement of the wage laws was a clarification that the legislature did not intend to create a private right of action, rather than a substantive change to the statute, and thus could be applied retroactively to preclude pending private claims. Abadeer v. Tyson Foods, Inc., 975 F. Supp. 2d 890, 2013 U.S. Dist. LEXIS 145918 (M.D. Tenn. Oct. 3, 2013).

Dismissal of inmate's claims under the Tennessee Wage Regulation Act, specifically T.C.A. § 50-2-101 et seq., was appropriate because the inmates failed to state a claim arising under the Act for which relief could have been granted. As a matter of law, the inmates were not employees because they could not enter into a contract of hire as employees Harris v. Tenn. Rehabilitative Initiative in Corr., — S.W.3d —, 2014 Tenn. App. LEXIS 273 (Tenn. Ct. App. May 8, 2014).

T.C.A. § 50-2-107 permitted a private cause of action notwithstanding the 2013 amendment to this section providing for enforcement of that section by the Department of Labor and Workforce Development, because the court's holding in Owens that § 50-2-107 provided a private cause of action had not been overruled, the General Assembly did not amend § 50-2-107 when it amended this section in 2013, and when the General Assembly amended § 50-2-107 in 2012 it did not overrule Owens. Hardy v. Tournament Players Club at Southwind, Inc., — S.W.3d —, 2015 Tenn. App. LEXIS 524 (Tenn. Ct. App. July 2, 2015), rev'd, 513 S.W.3d 427, 2016 Tenn. LEXIS 985 (Tenn. May 25, 2016).

NOTES TO DECISIONS

1. Rest Break or Meal Period.

Retaliatory discharge was an available claim where an employee was allegedly discharged for taking a rest break as a consequence of the employer's violation of a clearly expressed statutory policy that required employees be given a 30-minute rest period if the scheduled shift was six hours or longer. Yates v. Hertz Corp., 285 F. Supp. 2d 1104, 2003 U.S. Dist. LEXIS 17832 (M.D. Tenn. 2003).

T.C.A. § 50-2-103(h) requires a thirty-minute meal break; however, T.C.A. § 50-2-103 makes no provision for private enforcement, but instead provides for enforcement by the department of labor and workforce development under T.C.A. § 50-2-103(j). Johnson v. Koch Foods, Inc., 670 F. Supp. 2d 657, 2009 U.S. Dist. LEXIS 106058 (E.D. Tenn. Nov. 13, 2009).

2. Duress Not Found.

Denial of vacation pay to the employee under T.C.A. § 50-2-103(a)(3) was proper because the conclusion that the 2004 contract was not signed under duress undermined much of the employee's argument that he was entitled to his 2005 vacation pay due to the employer's breach of contract. There was no caselaw supporting the employee's assertion that the trial court was permitted to award him vacation pay based on equitable principles. Cummings Inc. v. Dorgan, 320 S.W.3d 316, 2009 Tenn. App. LEXIS 639 (Tenn. Ct. App. Sept. 23, 2009), rehearing denied, — S.W.3d —, 2009 Tenn. App. LEXIS 854 (Tenn. Ct. App. Dec. 9, 2009), appeal denied, 320 S.W.3d 316, 2010 Tenn. LEXIS 576 (Tenn. 2010).

Collateral References.

Time for payment of wages, constitutionality of statute regulating. 12 A.L.R. 612, 26 A.L.R. 1396.

Validity, construction, and effect of state laws requiring payment of wages on discharge of employee immediately or within specified period. 18 A.L.R.5th 577.

NOTES TO DECISIONS

1. Applicability.

Dismissal of inmate's claims under the Tennessee Wage Regulation Act, T.C.A. § 50-2-101 et seq., was appropriate because the inmates failed to state a claim arising under the Act for which relief could have been granted. As a matter of law, the inmates were not employees because they could not enter into a contract of hire as employees Harris v. Tenn. Rehabilitative Initiative in Corr., — S.W.3d —, 2014 Tenn. App. LEXIS 273 (Tenn. Ct. App. May 8, 2014).

NOTES TO DECISIONS

1. Constitutionality.

This section is not invalid as impairing the obligation of contracts, within the prohibition of Tenn. Const., art. I, § 20, for it deals solely with contracts to be made in the future. West v. Jefferson Woolen Mills, 147 Tenn. 100, 245 S.W. 542, 1922 Tenn. LEXIS 24 (1922).

This section is not unconstitutional as violative of the law of the land or due process of law clause of Tenn. Const., art. I, § 8. West v. Jefferson Woolen Mills, 147 Tenn. 100, 245 S.W. 542, 1922 Tenn. LEXIS 24 (1922).

2. Purpose.

The manifest of this section was to protect the laborer and wage earner. Fox v. Miller, 173 Tenn. 453, 121 S.W.2d 527, 1938 Tenn. LEXIS 27 (1938).

3. Employees Covered.

This section was intended to protect those who work for a fixed sum per day, per week, or per month, whether it be denominated “wages” or “salaries,” for such terms are interchangeable. West v. Jefferson Woolen Mills, 147 Tenn. 100, 245 S.W. 542, 1922 Tenn. LEXIS 24 (1922).

This section does not authorize assignments by public officials of their future official salaries. Fox v. Miller, 173 Tenn. 453, 121 S.W.2d 527, 1938 Tenn. LEXIS 27 (1938).

4. Unauthorized Assignment — Garnishment.

Assignment of unearned wages by employee to a third party without consent of the employer was void as to the employer, and being void as to the employer such assignment was void as to a garnisheeing creditor of the employee, as the employer, notwithstanding the assignment, owed the wages after being earned by the employee and such wages were subject to garnishment in his hands. Ellison v. Long, 170 Tenn. 582, 98 S.W.2d 96, 1936 Tenn. LEXIS 35 (1936).

5. Union Dues.

Authorizations by union members permitting company to deduct union dues from wages were not invalid under the provisions of this section. Murtha v. Pet Dairy Products Co., 44 Tenn. App. 460, 314 S.W.2d 185, 1958 Tenn. App. LEXIS 97 (Tenn. Ct. App. 1958).

Collateral References.

Law governing assignment of wages or salary. 1 A.L.R. 3d 927.

NOTES TO DECISIONS

1. Private Cause of Action.

This section permitted a private cause of action notwithstanding the 2013 amendment to T.C.A. § 50-2-101 providing for enforcement of that section by the Department of Labor and Workforce Development, because the court's holding in Owens that this section provided a private cause of action had not been overruled, the General Assembly did not amend this section when it amended § 50-2-101 in 2013, and when the General Assembly amended this section in 2012 it did not overrule Owens. Hardy v. Tournament Players Club at Southwind, Inc., — S.W.3d —, 2015 Tenn. App. LEXIS 524 (Tenn. Ct. App. July 2, 2015), rev'd, 513 S.W.3d 427, 2016 Tenn. LEXIS 985 (Tenn. May 25, 2016).

Employee had no private right of action under the Tennessee Tip Statute because, while the employee was an intended beneficiary, (1) the statute did not expressly provide such a right, and (2) no such right was implied, as the doctrine of legislative inaction did not apply to show legislative acquiescence in a judicial decision implying the right, since that decision was inconsistent with subsequent jurisprudence on implication of a private right of action, as the decision reflected a willingness to imply a private remedy so long as doing so was not inconsistent with either the purpose of the statute or any criminal or administrative remedies expressly provided therein, but courts had retreated from that approach in favor of one presuming a legislature would expressly provide for a private remedy if it intended there to be one. Hardy v. Tournament Players Club at Southwind, Inc., 513 S.W.3d 427, 2016 Tenn. LEXIS 985 (Tenn. May 25, 2016).

50-2-201. Part definitions.

As used in this part, unless the context otherwise requires:

1. “Commissioner” means the commissioner of labor and workforce development;
2. “Employ” includes to suffer or permit to work;
3. “Employee” means any individual employed by any employer within the state, including individuals employed by the state but not by its political subdivisions, but does not include any individual who is entitled to the equal pay provisions of the Fair Labor Standards Act of 1938, compiled in 29 U.S.C. § 201 et seq.;
4. “Employer” includes any person acting in the interest of any employer, directly or indirectly, and includes the state but not its political subdivisions; and
5. “Wage rate” means all compensation for employment, including payments in kind and amounts paid by employers for employee benefits as defined by the commissioner in regulations issued under this part.

Acts 1974, ch. 757, § 1; T.C.A., § 50-320; Acts 1999, ch. 520, § 41.

Law Reviews.

Government Contractors Beware: Recent Changes to Federal Affirmative Action Requirements (James Francis Barna), 37 No. 9 Tenn. B.J. 14 (2001).

It's No Revolution: Long Standing Legal Principles Mandate the Preemption of State Laws in Conflict with Section 3(o) of the Fair Labor Standards Act (Anna Wermuth and Jeremy Glenn), 40 U. Mem. L. Rev. 839 (2010).

50-2-202. Prohibited acts.

1. No employer shall discriminate between employees in the same establishment on the basis of sex by paying any employee salary or wage rates less than the rates the employer pays to any employee of the opposite sex for comparable work on jobs the performance of which require comparable skill, effort and responsibility, and that are performed under similar working conditions; however, nothing in this part shall prohibit wage differentials based on a seniority system, a merit system, a system that measures earnings by quality or quantity of production, or any other reasonable differential that is based on a factor other than sex.
2. An employer who is paying a wage differential in violation of this part shall not, in order to comply with this part, reduce the wage rate of any employee.
3. No employer may discharge or discriminate against any employee by reason of any action taken by the employee to invoke or assist in any manner the enforcement of this part.

Acts 1974, ch. 757, § 2; T.C.A., § 50-321.

Cross-References. Discharge for refusal to engage in or remain silent about illegal activities, or for legal use of agricultural product, § 50-1-304.

Collateral References.

Availability and scope of punitive damages under state employment discrimination law. 81 A.L.R.5th 367.

50-2-203. Commissioner to administer law.

1. The commissioner has the power and duty to carry out and administer this part, including the power to issue regulations, not inconsistent with the purpose of this part, that the commissioner considers necessary or appropriate to carry out this part.
2. The commissioner is authorized to endeavor to eliminate pay practices unlawful under this part by informal methods of conference, conciliation and persuasion, and to supervise the payment of wages owing to any employee under this part.

Acts 1974, ch. 757, § 3; T.C.A., § 50-322.

50-2-204. Employee remedies.

1. 1. Any employer who violates § 50-2-202 shall be liable to the employee or employees affected in the amount of their unpaid wages, and in instances of an employer knowingly violating § 50-2-202 in employee suits under subsection (b), up to an additional equal amount of unpaid wages as liquidated damages.
   2. For the second established violation of this part in a separate judicial proceeding distinct from the first, any employer who violates § 50-2-202 shall be liable to the employee or employees affected in the amount of their unpaid wages, and instances of an employer knowingly violating § 50-2-202 in employee suits under subsection (b), up to an additional two (2) times the amount of unpaid wages as liquidated damages.
   3. For the third established violation of this part in a separate judicial proceeding distinct from the first and second, any employer who violates § 50-2-202 shall be liable to the employee or employees affected in the amount of their unpaid wages, and instances of an employer knowingly violating § 50-2-202 in employee suits under subsection (b), up to an additional three (3) times the amount of unpaid wages as liquidated damages.
2. Action to recover wages may be maintained in any court of competent jurisdiction by any one (1) or more employees. The court shall, in cases of violation, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee and cost of the action to be paid by the defendant.
3. No agreement by any employee to work for less than the wages to which the employee is entitled under this part shall be a bar to an action to recover wages, or to a voluntary wage restitution of the full amount due under this part.
4. At the written request of any employee claiming to have been paid less than the wage to which the employee is entitled under this part, the commissioner may bring any legal action necessary on behalf of the employee to collect the claim for unpaid wages. The commissioner shall not be required to pay any filing fee, or other cost in connection with the action. The commissioner shall have the power to join various claims against the employer in one (1) cause of action.

Acts 1974, ch. 757, § 4; T.C.A., § 50-323; Acts 2004, ch. 822, § 2.

Compiler's Notes. Acts 2004, ch. 822, § 1 provided that the act may be cited as the “Equal Pay Remedies and Enforcement Act.”

Collateral References.

Availability and scope of punitive damages under state employment discrimination law. 81 A.L.R.5th 367.

50-2-205. Limitation of actions.

Court action under this part may be commenced no later than two (2) years after the cause of action occurs.

Acts 1974, ch. 757, § 5; T.C.A., § 50-324.

50-2-206. Penalty.

Any employer who violates this part, or who discharges or in any other manner discriminates against any employee because the employee has made a complaint to that employee's employer, the commissioner, or any other person, or instituted or caused to be instituted any proceedings under or related to this part, or has testified or is about to testify in any such proceeding, commits a Class A misdemeanor.

Acts 1974, ch. 757, § 6; T.C.A., § 50-325; Acts 1989, ch. 591, § 111.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

50-2-207. [Repealed.]

Acts 2004, ch. 822, § 3; repealed by Acts 2017, ch. 326, § 4, effective July 1, 2017.

Compiler's Notes. Former § 50-2-207 concerned research on wage disparities.

NOTES TO DECISIONS

1. Independent Contractors.

Company owed no duty to protect an employee of an independent contractor from obvious and apparent dangers on its property, even though the employee was engaged in inherently dangerous work when the fall from the transmission tower occurred. Ellis v. Chase Communications, 63 F.3d 473, 1995 FED App. 263P, 1995 U.S. App. LEXIS 24105, 153 A.L.R. Fed. 693 (6th Cir. Tenn. 1995).

NOTES TO DECISIONS

1. Negligence Per Se.

The violation of T.C.A. § 50-3-102 by a contractor is negligence per se, and it was error to allow issues of contributory negligence and assumption of risk by injured construction worker to go to the jury. Wren v. Sullivan Electric, Inc., 797 F.2d 323, 1986 U.S. App. LEXIS 27611 (6th Cir. Tenn. 1986).

2. Tennessee Public Protection Act.

It was error to dismiss an employee's complaint under the Tennessee Public Protection Act (TPPA), alleging the employee was terminated for refusing to remain silent about an employer's failure to enact workplace violence policies, because the employee alleged a violation of the Occupational Safety and Health Act's general duty clause which implicated important public policy concerns in Tennessee, which satisfied the TPPA's “illegal act” requirement. Davis v. Vanderbilt Univ. Med. Ctr., — S.W.3d —, 2020 Tenn. App. LEXIS 349 (Tenn. Ct. App. Aug. 5, 2020).

NOTES TO DECISIONS

1. Employer.

Occupational Safety and Health Act claims against a city and the city manager were properly dismissed because decedents were employees of a general contract and were working on a building that was privately owned; the decedents'  workplace safety was the contractor's responsibility, and the city and manager were not required to prepare the engineering survey, brace the walls and floors, or to ensure that the contractor did. Kemper v. Baker, — S.W.3d —, 2012 Tenn. App. LEXIS 253 (Tenn. Ct. App. Apr. 19, 2012).

NOTES TO DECISIONS

1. Railroad Employees.

Railroad employees are not covered by the Occupational Safety and Health Act of 1972. Fowinkle v. Southern R. Co., 533 S.W.2d 728, 1976 Tenn. LEXIS 507 (Tenn. 1976).

2. Domestic Workers.

The domestic worker exception applies to household workers and has no relevance to relatives of the employer when they assist in his business. Acuff v. Commissioner of Tennessee Dep't of Labor, 554 S.W.2d 627, 1977 Tenn. LEXIS 645 (Tenn. 1977).

3. Subcontractors.

Safety regulations adopted under authority of T.C.A. §§ 50-3-104, 50-3-201 and 50-3-917 and safety rules incorporated by reference in T.C.A. § 68-16-104 (now T.C.A. § 68-101-104) do not impose a nondelegable duty upon a municipal electric system to furnish a safe work place for employees of a subcontractor. Dempsey v. Correct Mfg. Corp., 755 S.W.2d 798, 1988 Tenn. App. LEXIS 245 (Tenn. Ct. App. 1988).

4. —Individual Employees of Governmental Entity.

Employees of a county hospital authority were immune as individuals from a claim for retaliatory discharge. Coffey v. Chattanooga-Hamilton County Hosp. Auth., 932 F. Supp. 1023, 1996 U.S. Dist. LEXIS 10508 (E.D. Tenn. 1996), aff'd, Coffey v. Chattanooga Hamilton County Hosp. Auth., 1998 U.S. Dist. LEXIS 22509 (E.D. Tenn. Aug. 17, 1998).

Collateral References.

Preemptive effect of federal railroad safety act, exclusive of “essentially local safety or security hazard” savings clause. 44 A.L.R. Fed. 2d 261.

NOTES TO DECISIONS

1. Dangerous Working Conditions.

Allegations that defendant knowingly permitted dangerous working conditions to exist and violated safety regulations is not sufficient to subject defendant to common law liability. The Workers' Compensation Law, compiled in title 50, chapter 6, provides the exclusive remedy for the entire injury and all of its damages. Mize v. Conagra, Inc., 734 S.W.2d 334, 1987 Tenn. App. LEXIS 2513 (Tenn. Ct. App. 1987).

Occupational Safety and Health Act claims against a city and the city manager were properly dismissed because decedents were employees of a general contract and were working on a building that was privately owned; the decedents'  workplace safety was the contractor's responsibility, and the city and manager were not required to prepare the engineering survey, brace the walls and floors, or to ensure that the contractor did. Kemper v. Baker, — S.W.3d —, 2012 Tenn. App. LEXIS 253 (Tenn. Ct. App. Apr. 19, 2012).

Collateral References.

Secondary smoke as battery. 46 A.L.R.5th 813.

NOTES TO DECISIONS

1. Construction.

Since the federal and state statutes concerning occupational safety and health are very broad and general, they do not create such a specially protected class of persons as to obviate contributory negligence as a defense. These statutes impose duties and obligations upon employees as well as employers. Bellamy v. Federal Express Corp., 749 S.W.2d 31, 1988 Tenn. LEXIS 42 (Tenn. 1988).

2. Remedies.

Tennessee courts have the equitable remedy of reinstatement available to them when an employee is discharged for seeking workers' compensation benefits. Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 1992 Tenn. App. LEXIS 403 (Tenn. Ct. App. 1992).

50-3-201. Regulations authorized.

1. It is the responsibility of the commissioner of labor and workforce development to develop and promulgate regulations that adopt occupational safety and health standards.
2. The commissioner may adopt as an occupational safety or health standard the federal standard relating to the same issue.
3. The commissioner may, by regulation, promulgate, modify or revoke any occupational safety and health standard in the manner provided in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
4. The decision of an individual, corporation, business entity or local, state or federal government entity, or agent thereof, not to post property pursuant to § 39-17-1359, thereby allowing persons with handgun permits to carry a handgun on such property, does not constitute an occupational safety and health hazard within the jurisdiction of this chapter.

Acts 1972, ch. 561, § 6; 1977, ch. 111, § 5; T.C.A., § 50-507; Acts 1999, ch. 520, § 41; 2011, ch. 33, § 1.

Attorney General Opinions. Confidential HIV and hepatitis testing waivers, OAG 93-35 (4/7/93).

50-3-202. Criteria for standards.

1. Regulations issued under § 50-3-201 shall provide, insofar as possible, the highest degree of health and safety protection for the employee; other considerations shall be the latest available scientific data in the field, the feasibility of the standard and experience gained under this and other health and safety laws.
2. Whenever practical, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired.
3. In promulgating standards dealing with toxic materials or harmful physical agents, the commissioner shall set a standard that most adequately assures, to the extent possible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if the employee has regular exposure to the hazard dealt with by the standard for the period of the employee's working life.

Acts 1972, ch. 561, § 6; 1977, ch. 111, § 6; T.C.A., § 50-517.

50-3-203. Protective measures.

1. Where appropriate, any standard promulgated under § 50-3-201 may prescribe the use of labels or other appropriate forms of warning to the extent necessary to ensure that employees are informed of any significant hazards to which they are exposed, relevant symptoms and proper conditions for safe use or exposure.
2. Where appropriate, the standards may also prescribe suitable protective equipment, but not as a substitute for appropriate control techniques, as well as control or technological procedures to be used in connection with the hazards.
3. 1. Where appropriate, the administrator shall require the monitoring or measuring of employee exposure at the locations and intervals, and in the manner, necessary for the protection of the employees.
   2. Any employee who has been or is being exposed in a biologically significant manner to harmful agents or materials in excess of the applicable standard shall be promptly notified by the employee's employer, and informed of corrective action being taken.
4. In addition, where appropriate, the standard shall prescribe the type and frequency of medical examinations or other tests that shall be made available, by the employer or at the employer's cost, to employees exposed to the hazards, in order to most effectively determine whether the health of the employees is adversely affected by the exposure.
5. 1. Where appropriate, the standards shall reduce the transmission of bloodborne pathogens through needles. The commissioners of labor and workforce development and health shall jointly review sharps injury prevention technology to include needleless systems and needles with engineered sharps injury protection.
   2. The commissioners shall jointly determine those environments where standards require that sharps injury prevention technology be employed. Sharps injury prevention technology shall not be required wherever the employer or other appropriate party demonstrates that the technology is medically contraindicated or is not more effective than alternative measures used by an employer to prevent exposure incidents.
   3. The standard shall require written exposure control plans be adopted by employers. Written exposure control plans shall be revised to reflect improvements in sharps injury prevention technology. Written exposure control plans shall include the type and brand of device used in an incident of exposure.
   4. The departments of labor and workforce development and health shall jointly compile and maintain a list of existing needleless systems and sharps with engineered sharps injury protection, that shall be available to assist employers in complying with the requirements of the bloodborne pathogen standards promulgated pursuant to this section. The list may be developed from existing sources of information, including, but not limited to, the federal food and drug administration, the federal centers for disease control, the national institute for occupational safety and health, and the United States department of veterans affairs.

Acts 1972, ch. 561, § 6; 1977, ch. 111, § 7; T.C.A., § 50-518; Acts 1999, ch. 37, § 1; 1999, ch. 520, § 41.

Collateral References.

Recovery of damages for expense of medical monitoring to detect or prevent future disease or condition. 17 A.L.R.5th 327.

50-3-204. Advisory committee.

1. The commissioner may appoint an advisory committee to assist the commissioner in the development and review of regulations prescribing standards under § 50-3-201.
2. 1. The committee shall consist of an uneven number of persons, not to exceed seven (7), appointed by the commissioner, engaged in the development of the regulation.
   2. Membership on the committee shall include representatives qualified by experience and affiliation to present the diverse viewpoint of persons and groups most likely to be affected by the standards, and may include representatives of employers, employees, the insurance industry, the health professions and the safety professions.
   3. In the selection of members, the commissioner shall consider such criteria as special expertise in the health and safety fields, geographical distribution of members within the three (3) grand divisions of the state, the interests of state and local government and the interests of the public.
3. Members of the advisory committee shall be reimbursed for their expenses and shall be paid on a per diem basis for days actually and necessarily employed in the discharge of official duties of the committee at a rate to be determined by the commissioner and approved by the department of finance and administration.
4. 1. Administrative and technical assistance reasonably required by the advisory committee shall be provided by the commissioner.
   2. The committee may seek advice and information from interested and knowledgeable parties and governmental agencies to assist it in the determination of its recommended standards.

Acts 1972, ch. 561, § 7; 1977, ch. 111, § 8; impl. am. Acts 1977, ch. 111, § 44; T.C.A., § 50-519.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

Part 3
Inspections

NOTES TO DECISIONS

1. Records Request.

Tennessee Department of Labor and Workplace Development should not have assessed penalties against an employer for violations of T.C.A. § 50-5-111(1), (4), based on the employer's failure to provide records within an hour. Publix Super Mkts., Inc. v. Tenn. Dep't of Labor & Workforce Dev., 402 S.W.3d 218, 2012 Tenn. App. LEXIS 799 (Tenn. Ct. App. Aug. 24, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 284 (Tenn. Mar. 5, 2013).

NOTES TO DECISIONS

1. Records Request.

Tennessee Department of Labor and Workplace Development should not have assessed penalties against an employer for violations of T.C.A. § 50-5-111(1), (4), based on the employer's failure to provide records within an hour. Publix Super Mkts., Inc. v. Tenn. Dep't of Labor & Workforce Dev., 402 S.W.3d 218, 2012 Tenn. App. LEXIS 799 (Tenn. Ct. App. Aug. 24, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 284 (Tenn. Mar. 5, 2013).

Child Labor Act provides authority to the Department of Labor and Workforce Development to immediately request the records that are required to be maintained by the Child Labor Act be produced for inspection, however, if the employer refuses an immediate inspection of the records, the appropriate recourse is for the Department to seek an administrative warrant pursuant to T.C.A. § 50-4-101, and the Department may not threaten an employer with a penalty for asserting its Fourth Amendment right. Publix Super Mkts., Inc. v. Tenn. Dep't of Labor & Workforce Dev., 402 S.W.3d 218, 2012 Tenn. App. LEXIS 799 (Tenn. Ct. App. Aug. 24, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 284 (Tenn. Mar. 5, 2013).

50-5-201. Short title.

This part shall be known and may be cited as the “Tennessee Protection of Minor Performers Act.”

Acts 2003, ch. 168, § 1.

Law Reviews.

Stand by Me: The Tennessee Protection of Minor Performers Act (Dorothy Kathryn Campbell), 40 No. 11 Tenn. B.J. 12 (2004).

50-5-202. Power to amend or repeal.

The general assembly shall have power to amend or repeal all or part of this part at any time and all persons subject to this part shall be governed by the amendment or repeal.

Acts 2003, ch. 168, § 1.

50-5-203. Part definitions.

As used in this part, unless the context otherwise requires:

1. “Artistic or creative services” means, but is not limited to, services as an actor, actress, dancer, musician, comedian, vocalist, including demonstration recordings, stunt-person, voice-over artist, model, or other performer or entertainer, or as a songwriter, musical producer or arranger, writer, director, producer, production executive, choreographer, composer, conductor, or designer, or other performing artist; and
2. “Minor” means any person who has not attained eighteen (18) years of age and has not had the disability of minority removed so as to make this part inapplicable.

Acts 2003, ch. 168, § 1.

Cross-References. Removal of disability of minors, title 29, chapter 31.

50-5-204. Construction.

This part does not repeal or affect the rights or powers under title 29, chapter 31, regarding the removal of disability of minors, and all provisions of that chapter shall remain in force and effect and applicable to the appropriate circumstances addressed in that chapter.

Acts 2003, ch. 168, § 1.

50-5-205. Approval not exemption from other law — Disability of non-age not removed generally.

Approval of a contract pursuant to this part shall not:

1. Exempt any person from any other law with respect to licenses, consents, or authorizations required for any conduct, employment, use, or exhibition of the minor in this state, nor limit in any manner the discretion of the licensing authority or other persons charged with the administration of the requirements, nor dispense with any other requirement of law relating to the minor;
2. Unless specifically so provided in the order, remove the disability of non-age for any other contract with the same minor that is not approved by the court pursuant to this section, nor, unless specifically so provided in the order, is the disability of non-age of the minor removed generally for the minor, nor is the minor emancipated for any other purpose or contract other than the performance of contracts approved pursuant to this section; and
3. Be granted for a contract that provides for an employment, use, or exhibition of the minor, within or without the state, that is prohibited by law and in particular by any federal or state minor labor law, and could not be licensed to take place in this state.

Acts 2003, ch. 168, § 1.

Cross-References. Removal of disability of minors, title 29, chapter 31.

50-5-206. Applicability.

The chapters of this title shall apply to every minor person who desires to perform artistic or creative services in the state, including minor persons who reside in the state and minor persons not residing in the state, as long as some or all of the services are to be provided or delivered in the state, or at least one (1) of the other parties are doing business in the state.

Acts 2003, ch. 168, § 1.

50-5-207. Disaffirmance of approved contract on ground of minority.

If a contract is approved by the appropriate court pursuant to this part, then the minor may not, either during minority or after reaching majority, disaffirm the contract on the ground of minority, nor may the minor assert that the minor's parent or guardian lacked the authority to make the contract personally as an adult.

Acts 2003, ch. 168, § 1.

50-5-208. Who may apply for court order.

Application for an order pursuant to this part may be made by the minor, or the minor's parent, or legal guardian, or guardian ad litem appointed pursuant to this part. For the purposes of any proceeding under this part, a parent or legal guardian, as the case may be, entitled to the physical custody, care, and control of the minor at the time of the proceeding shall be considered the minor's guardian ad litem for the proceeding, unless the court determines that appointment of a different individual as guardian ad litem is required in the best interests of the minor.

Acts 2003, ch. 168, § 1.

50-5-209. Approval for contract that is executed, in existence or being performed — Effective date — Earnings.

1. Approval under this part may be sought for a contract or agreement that is fully executed, is already in existence or under which the parties are currently performing. Approval may be effective as of the date upon which the contract has been executed, or the date when services were first performed by the minor, if specifically so ordered by the court. The parties may petition the court for approval to be effective within one (1) year of the contract's ratification by the court. The parties may also petition the court for approval of a contract effective date more than one (1) year after the ratification of the contract by the court, if good cause for the delayed effective date is shown by the petitioners.
2. If a contract is approved pursuant to this part, all earnings, royalties, or other compensation earned or received by the minor pursuant to the approved contract shall become the sole property of the minor who will be authorized to execute any contracts relating to administration or investments of the earnings.

Acts 2003, ch. 168, § 1.

50-5-210. Where to file petition.

Petition for contract approval under this part shall be filed with and, when granted, approved by the court handling probate matters for the county in which the minor resides, where the minor is employed or where the minor performs or renders the minor's services, or intends to do so; or the county in this state where performance of the contract shall be conducted, if the minor is not a resident of the state where the majority of the services are performed and the non-minor party to the contract is either a resident of this state or has been qualified or licensed to do business in the state.

Acts 2003, ch. 168, § 1.

50-5-211. Notice and hearing.

After a petition is filed pursuant to § 50-5-208, and following reasonable notice to all parties to the contract as is fixed by the court, the court will provide all parties to the contract with the opportunity to appear and be heard. The court may approve the contract following the hearing.

Acts 2003, ch. 168, § 1.

50-5-212. Effect of court approval — Revocation of approval.

Court approval of a valid contract shall serve to bind the minor as if the minor executed the contract personally as an adult; and the minor shall be bound to all provisions including the permanent sale of intellectual property rights; provided, however, that the revocation of approval of the contract by the court shall not include the transfer back to the minor of intellectual property rights unless there has been a showing of fraud or misrepresentation by the employer; and, further, that the court approving the contract shall retain the authority to revoke approval of the contract, or modify its terms if assented to by both parties, if the court finds that the well being of the minor requires the disapproval.

Acts 2003, ch. 168, § 1.

50-5-213. Scope.

Contracts eligible for approval under this part shall include contracts pursuant to which a minor person is employed, employs, or agrees to perform or render artistic or creative services, either directly or through a third party including, without limitation, a personal services corporation, manager, booking agent, or producer. For purposes of this part, when a minor renders services as an extra, background performer, or in a similar capacity, through an agency or service that provides one (1) or more performers for a fee, the agency or service shall be considered the minor's employer.

Acts 2003, ch. 168, § 1.

50-5-214. Effect of modifications, amendments, or assignments of contracts.

1. Modifications, amendments, or assignments of contracts previously approved by the court are deemed a new contract and require separate approval under this part.
2. Notwithstanding subsection (a), this section does not require court approval if the employing company assigns its rights in the contract to a successor or affiliate entity.

Acts 2003, ch. 168, § 1.

50-5-215. Appointment of guardian ad litem — Court discretion — Criteria — Compensation.

1. At any time after the filing of the petition, the court in its discretion may appoint a guardian ad litem to represent the interests of the minor or to oversee the minor's earnings related to the contract approved under this part. The court shall appoint a guardian ad litem as to any contract where the parent or guardian will receive remuneration or financial gain from the performance of the contract or if the court deems that the persons have any other conflict of interest with the minor. The court, in determining whether a guardian ad litem should be appointed, may consider the following criteria:
   1. The length of time the exclusive services of the minor are required;
   2. Whether the gross earnings of the minor under the contract are either contingent or unknown;
   3. The amount of gross earnings of the minor under the contract; and
   4. The age of the minor.
2. The guardian ad litem shall be entitled to reasonable compensation. The court shall have the power to determine which party shall be responsible for the fee, whether the fee and any required bond shall be paid from the earnings of the minor pursuant to the contract sought to be approved, or may apportion the fee between the parties to the proceedings.

Acts 2003, ch. 168, § 1.

50-5-216. Custody of minor — Contents of petition.

1. A parent, guardian, or legal custodian entitled to the physical custody, care, and control of a minor who enters into a contract of a type described in this part shall provide a certified copy of the minor's birth certificate indicating the minor's minority to the other party or parties to the contract.
2. A guardian or a person with temporary legal custody must provide a certified copy of the court document appointing the person as the minor's legal guardian.
3. A complete copy of the contract or proposed contract shall be attached to the petition. The petition shall also include the following information:
   1. The full name, residence, and date of birth of the minor;
   2. The name and residence of any living parent of the minor, the name and residence of the person who has care and custody of the minor, and the name and residence of the person with whom the minor resides;
   3. A statement that the minor is a resident of the state. If the minor is not a Tennessee resident, a statement that the petition is for approval of a contract for performance or rendering of services by the minor in the state, specifying the place in the state where the services are to be performed or rendered;
   4. A brief description of the minor's employment and compensation under the contract, including where services of the minor are to be performed, accompanied by a plan for the protection of the minor's earnings under the contract;
   5. The full name and residence of the petitioner, and the interest of the petitioner in the contract or proposed contract or in the minor's performance under the contract; and
   6. Other facts known by the petitioner regarding the minor and the minor's family and property that will show that the contract is reasonable, prudent, and in the best interests of the minor. The information shall include whether the minor has had at any time a guardian ad litem appointed by a court of any jurisdiction and an explanation of the facts regarding the previous appointment. Information regarding whether relief similar to the current petition has been sought on behalf of the minor, including whether a guardian ad litem was appointed for the previous application for court approval.
4. Upon application by any party or by order of the court, the petition or any portion of the petition, including attachments, may be filed under seal.

Acts 2003, ch. 168, § 1.

50-5-217. Persons to be served with petition.

The following persons, other than one who is the petitioner or who joins in the petition, shall be served with the petition by formal notice, as prescribed by Rule 4 of the Tennessee Rules of Civil Procedure:

1. The minor;
2. The minor's legal custodian or guardian ad litem, if any, whether or not appointed or qualified in this state;
3. Each party to the contract;
4. The parent or parents of the minor;
5. Any person having the care and custody of the minor;
6. The person with whom the minor resides, if other than a parent or guardian; and
7. If it appears that the minor is married, the minor's spouse.

Acts 2003, ch. 168, § 1.

50-5-218. Court's discretion for hearing in chambers or courtroom — Of record — Sealed.

At the court's discretion, the hearing may be held in the court's chambers or courtroom. The proceeding shall be of record and may be sealed, if the court determines that sealing the record will be in the best interests of the minor.

Acts 2003, ch. 168, § 1.

50-5-219. Minor's personal appearance.

The minor, unless excused by the court for good cause shown, shall attend personally before the court upon the hearing of the petition.

Acts 2003, ch. 168, § 1.

50-5-220. Options of the court.

1. The court at the hearing or on an adjournment of the hearing, may by its order do any of the following:
   1. Approve or disapprove the contract or proposed contract;
   2. Approve the contract upon such conditions, with respect to modification of the terms of the contract or otherwise, as it shall determine;
   3. Appoint a guardian ad litem as provided by § 50-5-215;
   4. Appoint a trustee to administer the trust for earnings as provided by § 50-5-222; or
   5. Award reasonable attorney's fees and other expenses paid or to be paid by or on behalf of the minor in connection with the proceeding, approval of the contract, and its performance.
2. The court shall consider the following factors in making its final determination:
   1. The best interest of the minor;
   2. Whether the minor is represented by a lawyer;
   3. The length of the contract;
   4. The age of the minor; and
   5. Any other matter that the court deems appropriate.

Acts 2003, ch. 168, § 1.

50-5-221. Court's review of contract — Protection of earnings.

1. The court shall ensure that any contract it approves contains all the requirements for the rendering of services of the minor and that the petition includes a plan for the protection of earnings under the contract.
2. The court shall consider the following when determining the protection of earnings:
   1. The interest of the petitioner in the contract or proposed contract or in the minor's performance under the contract;
   2. The parties who are entitled to the minor's earnings, and, if the minor is not so entitled, facts regarding the property and financial circumstances of the parent or parents, or legal custodian or guardian ad litem, or other third party;
   3. A bank or trust account used expressly for the deposit of fees generated under the contract and the relationship of any proposed trustee of the minor's funds;
   4. The percentage of fees generated that are intended for deposit; and
   5. The minor's financial advisor or other third party who will render investment advice and administer the bank or trust account.
3. Notwithstanding any provision to the contrary, the creditors of any person, other than the minor, shall not be entitled to the earnings of the minor.

Acts 2003, ch. 168, § 1.

50-5-222. Requirement that portion of earnings be set aside in trust.

Notwithstanding any law to the contrary, in an order approving a minor's contract as described in this part, the court shall require that fifteen percent (15%) of the minor's gross earnings pursuant to the contract be set aside by the minor's employer in trust and shall be paid to the trustee appointed by the court so that it may be invested in an account or other savings plan, and preserved for the benefit of the minor until the minor reaches the age of majority. The court may also require that more than fifteen percent (15%) of the minor's gross earnings be set aside in trust, in an account or other savings plan, and preserved for the benefit of the minor, upon request of the minor's parent or legal guardian, or the minor, through the minor's guardian ad litem. Gross earnings for the purpose of this section refers to those funds earned and received by the minor pursuant to the terms of the contract and does not include those funds applied towards recoupment pursuant to the contract.

Acts 2003, ch. 168, § 1.

NOTES TO DECISIONS

1. Constitutionality.

This statute does not violate Tenn. Const., art. I, § 8, providing that no man shall be taken or disseized of his freehold, or in any manner deprived of his life, liberty or property but by the judgment of his peers or the law of the land. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

Constitutional prohibition against express repeal of laws without reciting in title or body substance of laws repealed does not render this statute invalid since it only repeals by implication. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute does not violate the provision of Tenn. Const., art. I, § 21 that no man's particular services or property shall be taken or applied to public use, without just compensation. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute is not violative of Tenn. Const., art. I, § 6, upon the ground that it denies trial by jury, because the parties by accepting the act waive the right of trial by jury, and hence are not deprived of that right, for the statute is elective and if its provisions are accepted, it thereby becomes a part of the contract of employment. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute does not deprive the employee of his property without due process of law in violation of U.S. Const., amend. 14. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute is not unconstitutional in that it undertakes to make an election for, and a binding contract upon, a minor employee, since the statute endows a minor, for its purpose, with power to elect. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

Constitutional prohibition against act containing two subjects was not contravened because both the original act and its title provided a system of workers' compensation and also a system of liability or accident insurance. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

Original act and title were not contrary to constitutional requirements that act and title contain only one subject, in that they provided revenue for the state and compensation to employees by providing for fines after conviction upon violation of certain of its provisions and by appropriating from state revenues sums necessary to effectuate the purpose of the act. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute is elective, and therefore cannot be declared to be discriminative. Vantrease v. Smith, 143 Tenn. 254, 227 S.W. 1023, 1920 Tenn. LEXIS 15 (1920).

This act is not invalid as contrary to Tenn. Const., art. II, § 17 or art. XI, § 8. Mitchell v. Usilton, 146 Tenn. 419, 242 S.W. 648, 1921 Tenn. LEXIS 24 (1921).

No action for punitive damages is allowable in a workers' compensation case. Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 1963 Tenn. LEXIS 410 (1963).

2. —Invalid Provision — Elision.

This statute was not unconstitutional as a whole by reason of the invalidity of the provision allowing fees to county judges or chairmen of county courts, because such provision may be elided. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

3. Nature and Effect of Statute.

This statute deprived the employee coming under its provisions of the ordinary remedy for negligence resulting in injury, and substituted compensation for injury by accident arising out of and in course of employment, without reference to negligence, actual or imputed, on the part of the employer. Partee v. Memphis Concrete Pipe Co., 155 Tenn. 441, 295 S.W. 68, 1926 Tenn. LEXIS 64 (1927).

Negligence of employer is not taken into account in cases arising under this statute. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931).

The compensation law is both elective and contractual. Hammett v. Vogue, Inc., 179 Tenn. 284, 165 S.W.2d 577, 1942 Tenn. LEXIS 22 (1942).

The Workers' Compensation Act constitutes a complete substitute for the previous remedies in tort on the part of the employee. Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 1963 Tenn. LEXIS 410 (1963).

The statute is not a social welfare law. Smith v. Tennessee Furniture Industries, Inc., 212 Tenn. 291, 369 S.W.2d 721, 1963 Tenn. LEXIS 423 (1963).

Workers' Compensation Law is a creature of the general assembly, and any change in its structure must come from the general assembly and not from the courts. Lindsey v. Hunt, 215 Tenn. 406, 384 S.W.2d 441, 1964 Tenn. LEXIS 527 (1964), rehearing denied, Lindsey v. Hunt, 215 Tenn. 406, 387 S.W.2d 344, 1965 Tenn. LEXIS 505 (1964), overruled, Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991); Cordell v. Sky Rides of Am., Inc., 218 Tenn. 485, 404 S.W.2d 488, 1966 Tenn. LEXIS 647 (1966), overruled, Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991); Aerosol Corp. of South v. Johnson, 222 Tenn. 339, 435 S.W.2d 832, 1968 Tenn. LEXIS 435 (1968).

Although Workers' Compensation Law is to be liberally construed to accomplish its intended purposes, it is not a social welfare statute. Smith v. Tennessee Furniture Industries, Inc., 212 Tenn. 291, 369 S.W.2d 721, 1963 Tenn. LEXIS 423 (1963); Bishop Baking Co. v. Forgey, 538 S.W.2d 602, 1976 Tenn. LEXIS 493 (Tenn. 1976).

4. Application and Scope.

Employees hired in another state could maintain an action in Tennessee for benefits under the Tennessee Workers' Compensation Act where they incurred accidental injury while in the scope and course of their employment in Tennessee. Millican v. Liberty Mut. Ins. Co., 224 Tenn. 604, 460 S.W.2d 842, 1970 Tenn. LEXIS 362 (1970).

The workers' compensation laws should be rationally but liberally construed to promote and adhere to the act's purposes of securing benefits to those workers who fall within its coverage. Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923, 1980 Tenn. LEXIS 472 (Tenn. 1980).

Supreme Court of Tennessee thinks that a physician discharging a patient to home, knowing that the patient will be confined to a bed and unable to ambulate or perform other functions without assistance, and knowing that the patient will require care such as changing wound dressings or requiring other such attention, must certainly contemplate that nursing services will be required. The statute requires only that a physician “order” the services, not that the order be reduced to writing. Long v. Mid-Tennessee Ford Truck Sales, Inc., 160 S.W.3d 504, 2005 Tenn. LEXIS 225 (Tenn. 2005), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 360 (Tenn. Apr. 18, 2005).

5. Election of Remedies.

Employee's execution of agreement that compensation would be payable until terminated in accordance with Indiana workers' compensation law and his acceptance of benefits thereunder constituted a valid and binding election to receive benefits under Indiana law, thus precluding him from the awarding of benefits under Tennessee law. Clevinger v. Burlington Motor Carriers, 925 S.W.2d 518, 1996 Tenn. LEXIS 462 (Tenn. Special Workers' Comp. App. Panel 1996).

6. Purpose.

The general purpose of compensation laws is to provide compensation for loss of earning power or capacity sustained by workers through injuries in industry. Mathis v. J. L. Forrest & Sons, 188 Tenn. 128, 216 S.W.2d 967, 1949 Tenn. LEXIS 323 (1949).

The Workers' Compensation Law was enacted simply to compensate for disability of the employee occurring under certain specified conditions while such employee is working for the employer, and the purpose of the Occupational Disease Statute is the same. Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 315 S.W.2d 245, 1958 Tenn. LEXIS 230 (1958); Smith v. Tennessee Furniture Industries, Inc., 212 Tenn. 291, 369 S.W.2d 721, 1963 Tenn. LEXIS 423 (1963).

The policy of the law is for a speedy trial on the issues of liability. Stovall v. General Shoe Corp., 204 Tenn. 358, 321 S.W.2d 559, 1959 Tenn. LEXIS 288 (1959).

One of the purposes of the statute is to increase the right of employees to be compensated for injuries growing out of their employment. W. S. Dickey Mfg. Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493, 1961 Tenn. LEXIS 323 (1961).

7. What Constitutes Accident.

When a condition has developed gradually over a period of time resulting in a definite work-connected, unexpected, fortuitous injury, it is an “accident” within the Workers' Compensation Act, T.C.A. § 50-6-101 et seq., and is compensable. Conroy v. Carter Automotive Products Corp., 640 S.W.2d 831, 1982 Tenn. LEXIS 360 (Tenn. 1982).

Mental disability incurred when plaintiff, a driver's license examiner, was assaulted on the premises of her employer's driver's license testing center, was a sufficiently acute, sudden or unexpected emotional stress to support the finding of “injury by accident” which arose out of plaintiff's employment. Beck v. State, 779 S.W.2d 367, 1989 Tenn. LEXIS 467 (Tenn. 1989).

8. Statute as Part of Employment Contracts.

The provisions of this law are written into every contract of employment covered thereby. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919); Kennedy v. Columbian Casualty Co., 163 Tenn. 312, 43 S.W.2d 201, 1931 Tenn. LEXIS 118 (1931); Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221, 1931 Tenn. LEXIS 131 (1931), rehearing denied, 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931).

A widow, claiming the benefits of the act, is bound by all the terms which the law wrote into her husband's contract of employment. Battle Creek Coal & Coke Co. v. Martin, 155 Tenn. 34, 290 S.W. 18, 1926 Tenn. LEXIS 16 (1927).

Under this law the relation of employer and employee is contractual, and the terms of the law are to be read as a part of every contract of service between those subject to its terms. Basham v. Southeastern Motor Truck Lines, Inc., 184 Tenn. 532, 201 S.W.2d 678, 1947 Tenn. LEXIS 407 (1947).

The Workers' Compensation Act of Tennessee imposes its terms upon all contracts of employment that it covers. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

9. Nature of Employment Contracts.

The agreement between an employer and an employee under this law is in the nature of an insurance contract. Hughes v. Elliott, 162 Tenn. 188, 35 S.W.2d 387, 1930 Tenn. LEXIS 78 (1931).

10. Disavowing Contractual Obligations.

An employee cannot be allowed to claim benefits paid by his employer under a contract providing for health care and at the same time be allowed to disavow key provisions of the contract. If the employee were permitted to do so, the logical result would be for the employer to delay any and all disability payments until it could be judicially determined whether its liability to the employee was under the disability plan contract or under the Workers' Compensation Act. There would be no other way for the employer to avoid the possibility of having to pay twice for the same disability. This procedure would result in a hardship to the employee, and thus defeat the purpose of both the Workers' Compensation Act and the disability plan, as it would inevitably delay payments and thus deprive the employee of sustenance at the time of his greatest need. Allen v. Consolidated Aluminum Corp., 688 S.W.2d 64, 1985 Tenn. LEXIS 495 (Tenn. 1985).

11. Federal Courts.

Federal court cannot give the Workers' Compensation Law a construction which conflicts with holdings of the Tennessee supreme court. Anderson v. Royal Indem. Co., 169 F. Supp. 122, 1958 U.S. Dist. LEXIS 3287 (D. Tenn. 1958).

12. Evidence.

Since negligence is not involved in workers' compensation proceedings, evidence of negligence of employer or employer's staff nurse in treating employee in clinic was irrelevant and inadmissible in compensation proceeding to recover for death of employee. Poe v. E. I. Dupont Denemours & Co., 224 Tenn. 683, 462 S.W.2d 480, 1970 Tenn. LEXIS 392 (1970).

Plaintiff introduced insufficient evidence for a jury to have concluded that she was discharged for asserting her rights under the workers' compensation law. Thomason v. Better-Bilt Aluminum Prods., Inc., 831 S.W.2d 291, 1992 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1992).

13. False Statement in Employment Application.

The following factors must be present before a false statement in an employment application will bar benefits: (1) the employee must have knowingly and willfully made a false representation as to his physical condition; (2) the employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring; and (3) there must have been a causal connection between the false representation and the injury. Federal Copper & Aluminum Co. v. Dickey, 493 S.W.2d 463, 1973 Tenn. LEXIS 503 (Tenn. 1973); Liberty Mut. Ins. Co. v. Taylor, 590 S.W.2d 920, 1979 Tenn. LEXIS 523 (Tenn. 1979).

The Workers' Compensation Law contains no explicit provisions relative to making of false statements by an applicant for employment, but an employee who has willfully misrepresented or failed to disclose material information regarding his physical condition should not be permitted recovery merely because the general assembly failed to anticipate the problem. Federal Copper & Aluminum Co. v. Dickey, 493 S.W.2d 463, 1973 Tenn. LEXIS 503 (Tenn. 1973).

14. Working Conditions.

Any recourse against employer for failure to furnish employee a safe place to work or to protect employee from third party assaults on parking lot was under Workers' Compensation Act. Thomas v. General Electric Co., 494 S.W.2d 493, 1973 Tenn. LEXIS 410 (Tenn. 1973).

15. Indemnity of Third-Party Tortfeasor by Employer.

An employer who has paid an injured employee benefits under the Workers' Compensation Law is not liable for indemnity to a third-party tortfeasor under the Tennessee active-passive negligence doctrine since, in view of § 50-6-108, the employer could share no common tort liability with the third-party tortfeasor. Dawn v. Essex Conveyors, Inc., 498 F.2d 921, 1974 U.S. App. LEXIS 8036 (6th Cir. Tenn. 1974), cert. denied, Process Equipment Engineering Co. v. Tennessee Eastman Co., 419 U.S. 1040, 95 S. Ct. 528, 42 L. Ed. 2d 317, 1974 U.S. LEXIS 3534 (1974).

16. Medical Experts.

Absolute certainty on the part of a medical expert is not necessary to support a workers' compensation award. Stratton-Warren Hardware v. Parker, 557 S.W.2d 494, 1977 Tenn. LEXIS 674 (Tenn. 1977).

17. Common Law Tort Rights.

A worker's common law right to bring a personal tort action against a person other than his employer was neither extinguished nor created by the Tennessee workers' compensation statute. Hodge v. Southern Ry., App. D.C., 415 A.2d 543, 1980 D.C. App. LEXIS 300 (1980).

18. Retaliatory Discharge.

The retaliatory discharge cause of action is intended to prevent employers from relieving themselves of their obligations under the workers' compensation laws. Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 1992 Tenn. App. LEXIS 403 (Tenn. Ct. App. 1992).

Tennessee courts do, in fact, have the equitable remedy of reinstatement available to them when an employee is discharged for seeking workers' compensation benefits. Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 1992 Tenn. App. LEXIS 403 (Tenn. Ct. App. 1992).

Employee did not allege that he was terminated because of his own exercise of a statutory or constitutional right, and he was not an injured employee attempting to exercise his right to see benefits under the Workers' Compensation Act as a result of a work-related accident; his insistence that his termination violated the clear public policy of the Act was at best a conclusory allegation and his allegations were insufficient to state a cause of action for common law retaliatory discharge. Patrick v. Nelson Global Prods., — S.W.3d —, 2014 Tenn. App. LEXIS 441 (Tenn. Ct. App. July 30, 2014).

19. Black Lung Benefits Act.

The Tennessee Workers' Compensation Law, T.C.A. § 50-6-101 et seq., incorporated by reference both the presumptions and standards created by the Black Lung Benefits Act of 1972 (30 U.S.C. §§ 901, 902, 921-925, 931-941 and 951) and the regulations used to determine eligibility for black lung disability payments. Solomon v. Old Republic Ins. Co., 664 S.W.2d 70, 1984 Tenn. LEXIS 726 (Tenn. 1984).

20. Punitive Damages.

Punitive damages are not recoverable in workers' compensation cases. Anderson v. Dean Truck Line, Inc., 682 S.W.2d 900, 1984 Tenn. LEXIS 897 (Tenn. 1984), superseded by statute as stated in, Arnold v. Travelers Ins. Co., — S.W.2d —, 1990 Tenn. LEXIS 440 (Tenn. Nov. 26, 1990).

21. Frivolous Appeals.

A factual or legal dispute will preclude an award of damages for frivolous appeals. Anderson v. Dean Truck Line, Inc., 682 S.W.2d 900, 1984 Tenn. LEXIS 897 (Tenn. 1984), superseded by statute as stated in, Arnold v. Travelers Ins. Co., — S.W.2d —, 1990 Tenn. LEXIS 440 (Tenn. Nov. 26, 1990).

22. Federal Employers' Liability Act.

An employee of a railroad engaged in interstate commerce would not be covered by this chapter if the federal courts' interpretation of the federal Employers' Liability Act (45 U.S.C. § 51 et seq.) would bring the employee within the coverage of that act. Petty v. Tennken R., Inc., 722 S.W.2d 386, 1986 Tenn. LEXIS 851 (Tenn. 1986).

23. Exhaustion of Remedies.

Although the Tennessee Workers'  Compensation Act, T.C.A. § 50-6-101 et seq., was a remedial statute and was to be equitably construed under T.C.A. § 50-6-116, an employee's administrative remedies were not effectively exhausted for T.C.A. §§ 50-6-203(a) and 50-6-225(a)(1) purposes by the Tennessee Department of Labor's long period of inaction on the employee's request for assistance under T.C.A. § 50-6-238. Chapman v. Davita, Inc., 380 S.W.3d 710, 2012 Tenn. LEXIS 643 (Tenn. Sept. 21, 2012).

Collateral References.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden stimuli involving nonpersonnel action — compensability under particular circumstances. 84 A.L.R.5th 249.

NOTES TO DECISIONS

1. Evidence Sufficiency.

Claimant failed to produce sufficient evidence to show that his left-foot condition arose primarily out of and in the course and scope of his employment, where the claimant submitted no medical evidence showing that it was more likely than not that his employment contributed more than 50 percent to his injury. The treating physician's statement that the claimant's workplace accident was at least part of the cause of his foot problems did not establish by a preponderance of the evidence that the claimant's employment contributed more than 50 percent in causing the injury. Payne v. D & D Elec., — S.W.3d —, 2017 Tenn. LEXIS 215 (Tenn. Apr. 18, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 213 (Tenn. Apr. 18, 2017).

Treating physician's opinion that a claimant's injury was not work-related was entitled to a presumption of correctness, and the claimant did not present sufficient medical evidence to overcome the presumption. Thysavathdy v. Bridgestone Ams. Tire Operations, — S.W.3d —, 2018 Tenn. LEXIS 313 (Tenn. June 8, 2018).

2. Causation.

Workers'  Compensation Appeals Board properly reversed the trial court's order which found that the employee's injury was compensable because, in applying the correct standard to the employee's injury that occurred after July 1, 2014, the evidence preponderated against the trial court's finding that the employment of the employee contributed more than 50% in causing his patellar dislocation as the employee's doctor was unable to state with any reasonable degree of medical certainty that dragging heavy rolls of material at work contributed to the employee's injury in any way; and the doctor stated that the employee had patella alta, a condition that predisposed him to patellar dislocations. Willis v. All Staff, — S.W.3d —, 2017 Tenn. LEXIS 455 (Tenn. Aug. 3, 2017).

It was proper to deny an employee's claim for workers'  compensation because the evidence did not preponderate against the trial court's finding that the employee failed to sustain his burden of proof that his injury arose primarily out of his employment; a doctor did not testify within a reasonable degree of medical certainty, either directly or indirectly, that the employee's work activity more likely than not contributed more than fifty percent in causing the injury. Panzarella v. Amazon.Com, Inc., — S.W.3d —, 2018 Tenn. LEXIS 244 (Tenn. May 16, 2018).

Injury that is caused by an employer's failure to provide reasonable medical assistance arises out of and in the course of employment when an employee becomes helpless at work because of illness or other cause unrelated to her employment, the employee needs medical assistance to prevent further injury, the employer knows of the employee's helplessness, and the employer can provide reasonable medical assistance but does not do so. Chaney v. Team Techs., Inc., — S.W.3d —, 2019 Tenn. LEXIS 20 (Tenn. Jan. 31, 2019).

3. Failure to Show Compensable Accident.

Employee's October 2008 shoulder and neck injuries were not compensable because the first doctor testified that the January 2009 MRI of the employee's shoulder showed degenerative changes that had existed for quite some time, and that the cysts appearing in the MRI were evidence of a chronic condition and could not have formed since October 2008; and the second doctor testified that he consulted with a radiologist who interpreted both the employee's 2003 spinal images and his 2012 spinal images and, based on the comparison of those images, the second doctor opined that the employee had only slight progression of his spondylosis over that time and there was no anatomical change due to an acute injury that occurred between 2003 and 2012. T & B Trucking v. Pigue, — S.W.3d —, 2017 Tenn. LEXIS 788 (Tenn. Dec. 14, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 789 (Tenn. Dec. 14, 2017).

4. Independent Contractor's Employee.

Material evidence supported the jury's determination that a worker was the employee of a non-party independent contractor, rather than the property owner, where the contractor had been hired by the owner to construct a house and had the right to control the conduct of the work, the right to schedule working hours, the freedom to select and hire helpers, and the right of termination. Helton v. Lawson, — S.W.3d —, 2019 Tenn. App. LEXIS 613 (Tenn. Ct. App. Dec. 18, 2019).

NOTES TO DECISIONS

1. Employer.

Sawmill operator employing 12 workers was subject to the Workers' Compensation Law. Shoaf v. Fitzpatrick, 104 F.2d 290, 1939 U.S. App. LEXIS 4129 (6th Cir. Tenn. 1939), cert. denied, 308 U.S. 620, 60 S. Ct. 295, 84 L. Ed. 518, 1939 U.S. LEXIS 29 (Tenn. Dec. 11, 1939).

Husband and wife were engaged in building business where they purchased several old houses for building material from which they constructed several new houses, though first house constructed was a house used as a residence for defendants, and were subject to the Workers' Compensation Act. Brady v. Reed, 186 Tenn. 556, 212 S.W.2d 378, 1948 Tenn. LEXIS 581 (1948).

Defendant who operated sawmill as his regular business was not liable for compensation to employee of coal mine operated in addition to mill where he never employed over four men at any time at the mine. Threet v. Cox, 189 Tenn. 477, 226 S.W.2d 86, 1949 Tenn. LEXIS 451 (1949).

Partnership, which operated coal mine under a lease, but which subleased to another without recording sublease and without securing consent of lessor as provided by lease, paid premiums on insurance policy issued in its name, retained entire output of mine, and carried insurance protection for employees of mine, was the employer of a miner killed in accident at the mine. Douglas v. Sharp, 194 Tenn. 11, 249 S.W.2d 999, 1952 Tenn. LEXIS 346 (1952).

An employer's business may embrace two occupations, both within the Workers' Compensation Law. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956).

Where the record showed that Illinois employer brought only two employees to Tennessee to help erect towers, hired only two local men, and at no time had more than four employees in Tennessee, employer was not required to qualify under Tennessee Workers' Compensation Law defining “employer,” as those using not less than five persons for pay. Mooney v. Stainless, Inc., 338 F.2d 127, 1964 U.S. App. LEXIS 4741 (6th Cir. Tenn. 1964), cert. denied, 381 U.S. 925, 85 S. Ct. 1561, 14 L. Ed. 2d 684, 1965 U.S. LEXIS 1173 (1965).

Where decedent was an employee of a wholly owned subsidiary of the parent corporation, the parent company is an employer for purposes of workers' compensation only where the two corporations are so completely integrated and commingled that neither party can realistically be viewed as a separate economic entity. Latham v. Technar, Inc., 390 F. Supp. 1031, 1974 U.S. Dist. LEXIS 6079 (E.D. Tenn. 1974).

Where plaintiff was employee of supplier of temporary manpower and was supplied to defendant who requested some temporary day labor, defendant was a coemployer with employment agency at the time of plaintiff's injury and plaintiff was limited to a cause of action under title 50, chapter 6 and precluded from bringing an action in negligence against defendant. Bennett v. Mid-South Terminals Corp., 660 S.W.2d 799, 1983 Tenn. App. LEXIS 627 (Tenn. Ct. App. 1983).

The definition of “employer” under the Workers' Compensation Act, T.C.A. § 50-6-101 et seq., which includes the compensation insurance carrier, also includes the employees of the insurance carrier. Spears v. Morris & Wallace Elevator Co., 684 S.W.2d 620, 1984 Tenn. App. LEXIS 3047 (Tenn. Ct. App. 1984).

Where a Comprehensive Employment Training Act worker is assigned by an agency to a business for job training and supervision, both the agency and the business are the CETA worker's employer under the provisions of the Workers' Compensation Act, T.C.A. § 50-6-101 et seq.Jackson Housing Authority v. Auto-Owners Ins. Co., 686 S.W.2d 917, 1984 Tenn. App. LEXIS 3363 (Tenn. Ct. App. 1984).

Parent corporation and subsidiary were treated as one employer under T.C.A. § 50-6-101 where the subsidiary functioned as the manufacturing and sales distribution agent of the parent corporation. Stigall v. Wickes Machinery, Div. of Wickes Corp., 801 S.W.2d 507, 1990 Tenn. LEXIS 430 (Tenn. 1990).

2. —Basis of Liability.

The basis of liability under the Workers' Compensation Law is the employer-employee relation. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 1960 Tenn. LEXIS 409 (1960), rehearing denied, 206 Tenn. 601, 337 S.W.2d 603, 1960 Tenn. LEXIS 424 (1960).

Liability under the statute is based on the existence of an employment relationship and there is no imposition of liability where the alleged employee is either an independent contractor or a casual employee. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969).

Insured was liable to insurers for workers'  compensation premiums for physical therapists with whom the insured contracted under a risk of loss provision in the parties'  insurance contract because: (1) the clause did not only apply when T.C.A. § 50-6-113 might apply; and (2) the insurers had to defend any suit in which a therapist sought workers'  compensation from the insured, even if only to find the therapist's status as an employee or independent contractor, so the insured was liable for premiums for shifting this litigation risk to the insurers. Cont'l Cas. Co. v. Theraco, Inc., 437 S.W.3d 841, 2014 Tenn. App. LEXIS 16 (Tenn. Ct. App. Jan. 14, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 451 (Tenn. May 28, 2014).

3. —Employment of Five Persons.

The five persons referred to need not be regularly engaged in work at the place of the injury, and need not work in the same county to make one an employer under act. The contract of employment and not place of accident governs recovery. Vantrease v. Smith, 143 Tenn. 254, 227 S.W. 1023, 1920 Tenn. LEXIS 15 (1920).

The statute was amended by Acts 1923, ch. 84, § 2, so that its every section applies to employers who employ not less than five persons for pay. Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355, 1924 Tenn. LEXIS 5 (1924).

The burden of proof is on petitioner to show that employer had five or more employees. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927); Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

Workers' compensation coverage attaches on the first day that five or more persons who may be classified as regular employees work for an employer. Ganus v. Asher, 561 S.W.2d 756, 1978 Tenn. LEXIS 580 (Tenn. 1978); Garner v. Reed, 856 S.W.2d 698, 1993 Tenn. LEXIS 196 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 249 (Tenn. June 28, 1993).

Once coverage attaches to an employer of five or more persons it may not be withdrawn solely by the device of reducing the work force to four or fewer regular employees. Ganus v. Asher, 561 S.W.2d 756, 1978 Tenn. LEXIS 580 (Tenn. 1978).

The five-employee limitation for workers' compensation liability was not applicable to principle contractor liable because subcontractor failed to secure workers' compensation insurance. Brown v. Canterbury Corp., 844 S.W.2d 134, 1992 Tenn. LEXIS 609 (Tenn. 1992).

4. —Insurer as “Employer.”

In view of the definition of employer herein as including his insurer, notice of employer's insurer of willingness to pay compensation is sufficient to start running of the period of limitation within which suit may be brought, as provided in former § 50-6-224. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

Employee had the right to sue the insurance carrier without joining the employer and the mere fact that the statute of limitations barred his right to bring suit against the employer would not prevent his suing and recovering from the carrier where limitations had been tolled as to the carrier. General Acci. Fire & Life Assurance Corp. v. Kirkland, 210 Tenn. 39, 356 S.W.2d 283, 1962 Tenn. LEXIS 410 (1962).

The employer and insurer are each principals and are jointly and severally liable to the employee. General Acci. Fire & Life Assurance Corp. v. Kirkland, 210 Tenn. 39, 356 S.W.2d 283, 1962 Tenn. LEXIS 410 (1962).

The insurer may be sued directly by the employee for compensation benefits. General Guaranty Ins. Co. v. Scudginton, 213 Tenn. 532, 376 S.W.2d 464, 1964 Tenn. LEXIS 420 (1964).

5. Guarantor.

The guarantor of a self-insured employer's obligations is entitled to the same immunity as a workers' compensation insurer. Malkiewicz v. R.R. Donnelley & Sons Co., 703 F. Supp. 49, 1989 U.S. Dist. LEXIS 290 (M.D. Tenn. 1989), aff'd without opinion, 932 F.2d 968, 1991 U.S. App. LEXIS 14568 (6th Cir. Tenn. 1991).

There is no principled distinction between the status of a workers' compensation insurer and that of a guarantor who guarantees the employer's financial ability to comply with the workers' compensation statutes. Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728, 1990 Tenn. LEXIS 306 (Tenn. 1990).

Inclusion of a guarantor within the definition of “employer” so as to afford it the benefit of exclusive remedy provisions is consistent with the legislative purpose of insuring solvent and responsible sources of recovery under the compensation program. Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728, 1990 Tenn. LEXIS 306 (Tenn. 1990).

6. —Insurer's Act as Tolling Statute of Limitations.

Insurer's acts being for and in behalf of the employer under subsection (a), an agreement between an insurer and an employee tolled the statute of limitations, so that action by employee against employer was not barred. Moore v. Hines, 170 Tenn. 456, 95 S.W.2d 928, 1936 Tenn. LEXIS 15 (1936).

7. —Charities.

An educational institution constructing a reservoir, not necessary for its own water supply but to provide the needs of a municipality for profit, is liable for compensation to a worker thereon. Lincoln Memorial University v. Sutton, 163 Tenn. 298, 43 S.W.2d 195, 1931 Tenn. LEXIS 115 (1931).

A university which was a charitable educational institution operating under a welfare charter was an employer within the meaning of this section. Smith v. Lincoln Memorial University, 202 Tenn. 238, 304 S.W.2d 70, 1957 Tenn. LEXIS 386 (1957).

8. —Sufficiency of Evidence.

In suit for workers' compensation, evidence showed that the employers had as many as five employees at time of injury, notwithstanding employer's claim that part of their business had been sold or leased to another. Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

9. —Jury Question.

Submitting to the jury the question of whether the defendant corporation was an employer of decedent where decedent was killed while employed by a wholly owned subsidiary of defendant was not prejudicial where substantial evidence in the record supported the jury's finding that the parent corporation was not an employer and where decedent was not a special employee of defendant corporation. Latham v. Technar, Inc., 390 F. Supp. 1031, 1974 U.S. Dist. LEXIS 6079 (E.D. Tenn. 1974).

10. Employees.

The ordinary and usual meaning of the word “employee” is one who is employed by another and works for wages or salary without regard to whether the employment is legal or illegal. American Surety Co. v. Clarksville, 204 Tenn. 67, 315 S.W.2d 509, 1958 Tenn. LEXIS 247 (1958).

In defining the term “employee” the general assembly intended to cover contracts for hire the making of which is prohibited (such as employment in certain cases of minors) but not those contracts, even though legal contracts of hire, where the acts required of the employee are themselves a violation of the penal statutes and the employee receives injuries in the performance of the required illegal acts. Bowers v. General Guaranty Ins. Co., 221 Tenn. 719, 430 S.W.2d 871, 1968 Tenn. LEXIS 499 (1968).

Employee who as part of his employment knowingly violated penal statutes against illegal sale of intoxicating liquor and who was injured in the course of making such a sale was not an “employee” under the statute and was not entitled to compensation. Bowers v. General Guaranty Ins. Co., 221 Tenn. 719, 430 S.W.2d 871, 1968 Tenn. LEXIS 499 (1968).

Whether a workers' compensation claimant was an employee depends upon the nature of the defendant's business, the way it was conducted and the claimant's relationship to the business. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

Farmer who brought load of tobacco to warehouse and who was told by owner that if he unloaded the tobacco he would be paid for it was an employee of the warehouse when injured while unloading the tobacco. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

The question of whether a claimant is an employee under this section and of whether he is a casual employee under § 50-6-106 are separate and distinct questions. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

For one to be an employee of another there must be an express or implied agreement for the alleged employer to remunerate the alleged employee for his services in behalf of the former. Black v. Dance, 643 S.W.2d 654, 1982 Tenn. LEXIS 372 (Tenn. 1982).

For comprehensive enumeration of what constitutes employees for hire and volunteer or gratuitous employees, see Hill v. King, 663 S.W.2d 435, 1983 Tenn. App. LEXIS 650 (Tenn. Ct. App. 1983).

Where volunteer deputy received occasional meal and reimbursement for mileage and expenses, the court might stretch the definition of “hire” if the question was whether or not workers' compensation was due, but would not impute or imply a waiver of the common-law right to recover full compensation or the statutory right to recover within the limits of the Governmental Tort Liability Act (title 29, ch. 20) without real, palpable and substantial consideration; the law will not presume that the deputy sold his birthright for a mess of pottage. Hill v. King, 663 S.W.2d 435, 1983 Tenn. App. LEXIS 650 (Tenn. Ct. App. 1983).

A Comprehensive Employment Training Act worker was an employee both of the local referring agency and of the business which provided the training. Jackson Housing Authority v. Auto-Owners Ins. Co., 686 S.W.2d 917, 1984 Tenn. App. LEXIS 3363 (Tenn. Ct. App. 1984).

A convict cannot make an employment contract with the authorities who confine him, and is not entitled to workers' compensation benefits. Howard v. Uselton, 774 S.W.2d 925, 1989 Tenn. LEXIS 383 (Tenn. 1989).

Job applicant does not have a cause of action under the Tennessee Workers'  Compensation Act against a prospective employer for failure to hire if the prospective employer failed to hire the job applicant because that applicant had filed, or is likely to file, a workers'  compensation claim against a previous employer; moreover, the Second Injury Fund does not show a legislative intent to allow job applicants who have been previously injured to sue prospective employers for failure to hire. Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 2015 Tenn. LEXIS 630 (Tenn. Aug. 21, 2015).

11. —Independent Contractors and Employees Distinguished.

One employed to do work according to his own methods, free from control of employer, was an independent contractor. Siskin v. Johnson, 151 Tenn. 93, 268 S.W. 630, 1924 Tenn. LEXIS 47 (1925).

Where the power to direct and supervise the work is reserved, the contractee is a servant and not an independent contractor. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924); Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

The mere fact that the laborer is receiving so much by the piece or job does not control the question as to whether the contractee was an independent contractor or a servant. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924); Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

One employed at certain price per thousand feet “to cut and haul said timber as directed by said first party,” the employer having power to direct and supervise the cutting, was a servant, obliged to do the work strictly according to instructions, and not an independent contractor. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924).

Under contract of employment whereby employer simply agreed to pay one for hauling lumber according to the amount hauled, with no relinquishment by the employer of the right to control the means and method by which the hauling was done, or to terminate the employment, the hauler was an employee within meaning of this section and not an independent contractor. Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S.W.2d 860, 1928 Tenn. LEXIS 119 (1928).

The relationship of employer and employee arises where the former selects the latter, and may discharge him and may order not only that the work shall be done but also the mode of its performance. Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

Where petitioner agreed to paint a roof at rate of $50.00 per hour and at a maximum labor cost of $15.00 for himself and helper and where there was no evidence to show any relinquishment by employer of his right to control the means and methods by which the painting was to be done, there was material evidence to support the chancellor's finding that petitioner was an employee and not an independent contractor. Welch v. Reiling, 170 Tenn. 698, 99 S.W.2d 216, 1936 Tenn. LEXIS 51 (1936).

Where owner of candy company paid social security tax and carried compensation insurance on traveling salesman who was compensated on a basis of five percent of his gross sales and paid his own expenses and at times as a sideline sold goods for other companies with the consent of the candy company but did not so do in the state of Georgia where his death occurred, such salesman was an employee of the candy company and not an independent contractor and was covered by the compensation statute. Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

In ascertaining whether a given contract establishes an employer-employee status or that of an independent contractor, the decisive fact always is whether the party for whom the work was being done had the right of control in the doing of that work. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

Individual injured hauling logs in own truck was entitled to compensation as an employee, rather than an independent contractor, where he was hired for an indefinite time and amount of work with some control of the manner of working, even though he is paid by the piece, particularly where indorsement blank on salary checks states the parties are subject to fair labor standards act. Bond Bros., Inc. v. Spence, 198 Tenn. 316, 279 S.W.2d 509, 1955 Tenn. LEXIS 374 (1955).

There is no absolute formula whereby it can be determined whether a party is an employee or independent contractor but the facts of each particular case have to be taken into consideration and from these facts a determination made. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956); Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959); Smart v. Embry, 208 Tenn. 686, 348 S.W.2d 322, 1961 Tenn. LEXIS 340 (1961).

One of the most widely accepted definitions of an independent contractor is: “One who contracts to do a piece of work according to his own methods without being subject to the control of his employer, except as to the result of the work, and who has the right to employ and direct the action of the worker independent of his employer, and free from any superior authority in the employer to say how specified work shall be done, or what the laborers shall do as the work progresses; one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.” Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956); Smart v. Embry, 208 Tenn. 686, 348 S.W.2d 322, 1961 Tenn. LEXIS 340 (1961); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

In determining whether one is an employee or an independent contractor, it is the duty of the court to give the Workers' Compensation Law a liberal construction in favor of the fact that he is an employee, rather than a strict construction. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956).

Where petitioner contracted with coal company to mine coal at stated price per ton with the company to furnish certain equipment and the petitioner to furnish the labor and certain other equipment, and where petitioner paid social security, withheld income tax and paid into miner's pension fund as to his employees but the coal company reserved and exercised full control of where and how the coal was to be mined as well as the quantity of coal and the place at which it was to be delivered and petitioner could have been discharged at any time, evidence supported finding of the trial court that petitioner was an employee rather than an independent contractor. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956).

Where ice cream vendor was furnished with pushcart and products to sell at retail with unsold products being returned to company at close of each day, and company at all times kept control of equipment and products and could seize the products and equipment at any time and terminate contract with vendor, vendor was an employee rather than an independent contractor even though his compensation was the difference between the wholesale and retail prices of the products. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

The right of a company to terminate relationship with claimant at will is strong evidence that claimant is an employee rather than an independent contractor. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959); Owens v. Turner, 211 Tenn. 121, 362 S.W.2d 793, 1962 Tenn. LEXIS 348 (1962); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Whether claimant is an employee or independent contractor depends upon the nature of business of the alleged employer, the way it is conducted and the claimant's relationship to that business. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

The method of payment for services supposed to be rendered by claimant is not controlling on question of whether he is an employee or independent contractor. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

The mere fact that employee was paid at rate of so much per thousand brick laid would not make him an independent contractor or prevent him from being an employee within the meaning of the Act. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 1960 Tenn. LEXIS 409 (1960), rehearing denied, 206 Tenn. 601, 337 S.W.2d 603, 1960 Tenn. LEXIS 424 (1960).

In determining whether an individual is an employee or an independent contractor, the test is whether employer had the right to control the employee in doing his work and not whether that right was exercised. Owens v. Turner, 211 Tenn. 121, 362 S.W.2d 793, 1962 Tenn. LEXIS 348 (1962).

Carpenter hired for purpose of repairing garage door by owner of motor company who worked by the hour and intended to submit bill when job was complete was independent contractor and not an employee of the garage owner. Federated Mut. Implement & Hardware Co. v. Shoemaker, 211 Tenn. 523, 366 S.W.2d 129, 1963 Tenn. LEXIS 377 (1963).

For determining whether worker is an employee or an independent contractor in workers' compensation cases, one test is whether employer had a right to control employee in doing the work, and another, the right to terminate the employment at any time, such rights being incompatible with full control of the work usually enjoyed by independent contractor. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Painter was employee rather than independent contractor where he was directed by farm operator to paint trim on house on a particular day and complied, employment could be terminated at any time, regular employees were directed from time to time to paint farm buildings, and painting was an expectable, routine and inherent part of the farming operation. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Factors to be considered in determining whether claimant is an employee or an independent contractor include right or exercise of control by asserted employer, method of payment, furnishing of equipment and right to fire. Fisher v. J. F. G. Coffee Co., 221 Tenn. 333, 426 S.W.2d 502, 1967 Tenn. LEXIS 360 (1967).

Where there is a contract of employment either express or implied the burden is on the employer to show that the claimant is an independent contractor rather than an employee. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

Plaintiff who was engaged to clean bricks on new buildings by the job or by number of bricks, who was not controlled as to means of accomplishment of end result, furnished major portion of tools and materials and frequently hired and paid his own employees, although on occasion he received help from contractor's employees without charge, was, on the facts of the case, an independent contractor rather than an employee, even though plaintiff and building contractor may have engaged in some occasional consultation and experimentation with reference to cleaning solution to be used. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969).

Among the tests for determining whether a work relationship is that of employer-employee or of independent contractor are: (1) Right to control conduct of work; (2) Right of termination; (3) Method of payment between alleged employer and employee; (4) Whether or not alleged employee furnishes his own helpers; and (5) whether or not the alleged employee furnishes his own tools, but these tests are not absolute and are not to be applied abstractly. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969); Carver v. Sparta Electric System, 690 S.W.2d 218, 1985 Tenn. LEXIS 499 (Tenn. 1985); Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 1985 Tenn. LEXIS 591 (Tenn. 1985).

So-called “relative nature of the work” test is of vital significance on the issue of whether an individual is an employee or casual employee but is of less significance where the question is whether the injured person is an employee or independent contractor. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969).

Where only practical difference between truck drivers delivering manufacturer's products as employees and as “contract haulers” was that contract haulers stood to make more money and both types of drivers worked same hours, performed same duties and contracts of contract haulers could be terminated at any time, action of trial judge in finding that “contract hauler” was employee would be sustained. Curtis v. Hamilton Block Co., 225 Tenn. 275, 466 S.W.2d 220, 1971 Tenn. LEXIS 300 (1971).

Where worker had leased a tractor from corporation to be used by worker in delivering gasoline and petroleum products for corporation, and where the lease agreement had provided that the leased equipment would be operated by the corporation's exclusive direction and control and that corporation would have the right to terminate the services of any driver, the worker was an employee of the corporation rather than an independent contractor for workers' compensation purposes. Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858, 1976 Tenn. LEXIS 587 (Tenn. 1976).

Where defendant held a franchise to operate a taxicab company, and where a taxicab driver was seriously injured while answering one of defendant's radio dispatches, the fact that the name of the company and other business information was painted on the vehicles, that all of the cabs were radio dispatched, that gasoline purchases were made by the drivers from defendant, that defendant supplied oil for each vehicle, and that defendant's supervisors checked cabs for cleanliness, constituted sufficient evidence of an employer-employee relationship rather than of independent contractors, and defendant was required to compensate plaintiff under § 50-6-112. Nesbit v. Powell, 558 S.W.2d 436, 1977 Tenn. LEXIS 659 (Tenn. 1977).

Where man and his wife worked on painting and papering homes for mortgage company and painting was sometimes paid for by the hour and sometimes on square foot basis and papering was paid for by the roll, and he could set his own working hours, provide his own tools and hire additional helpers if he wished, he was an independent contractor and not an employee. Barnes v. National Mortg. Co., 581 S.W.2d 957, 1979 Tenn. LEXIS 442 (Tenn. 1979).

Where: (1) Injured person was a member of a partnership and was working on the construction of a house for a general contractor; (2) The general contractor inspected the work to the extent necessary to see that the end result would be according to plan but did not control the methods and details of the work; (3) Payment was negotiated on the square foot of completion basis; and (4) Such injured person hired and paid his own helpers and did not use the workers of the general contractor, such injured person was an independent contractor rather than an employee of the general contractor. Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923, 1980 Tenn. LEXIS 472 (Tenn. 1980).

Where defendant supplied all his own tools and workers, and plaintiff had no right to termination and did not deduct social security or income taxes from defendant's paychecks, defendant was an independent contractor. Jackson Sawmill, Inc. v. West, 619 S.W.2d 105, 1981 Tenn. LEXIS 453 (Tenn. 1981).

The fact that a company did not deduct social security or income taxes was not controlling in deciding whether an employer-employee or independent contractor relationship existed. Carver v. Sparta Electric System, 690 S.W.2d 218, 1985 Tenn. LEXIS 499 (Tenn. 1985).

The following are to be considered as means of analysis, not as absolutes, in the determination of an independent contractor or employee relationship: (1) The right to control the conduct of the work; (2) The right of termination; (3) The method of payment; (4) The freedom to select and hire helpers; (5) The furnishing of tools and equipment; (6) Self scheduling of work hours; and (7) Being free to render services to other entities. German v. Whaley, 760 S.W.2d 627, 1988 Tenn. LEXIS 201 (Tenn. 1988).

The method of payment, the freedom to select and hire helpers, the furnishing of tools and equipment, and the freedom to render services to other entities unequivocally established defendant as an independent contractor, and evidence on issues of termination and control did not persuasively indicate an employer-employee relationship. German v. Whaley, 760 S.W.2d 627, 1988 Tenn. LEXIS 201 (Tenn. 1988); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

A party to a contract can exercise direction and control over the results of the work without destroying the independence of the contract or creating an employer-employee relationship. Wright v. Knox Vinyl & Aluminum Co., 779 S.W.2d 371, 1989 Tenn. LEXIS 465 (Tenn. 1989).

While no single factor is determinative, the supreme court has repeatedly emphasized the importance of the right to control when distinguishing employees and independent contractors, the relevant inquiry being whether the right existed, not whether it was exercised. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Method of payment does weigh toward finding an independent contractor relationship, but it is one factor among many to be considered. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Where truck leasing company required driver to sign contract emphasizing driver's status as “independent contractor” rather than “employee,” but could effectively terminate its relationship with driver at will, retained the responsibility for selecting the routes to be driven, required driver to take the most commercially reasonable route and offset any equipment operating costs due to a deviation in route against driver's earnings, penalized driver if he failed to meet pickup or delivery times, required driver to report daily, and required driver to obtain company approval before taking time off from work, evidence supported chancellor's findings that relationship was that of employer-employee. Boruff v. CNA Ins. Co., 795 S.W.2d 125, 1990 Tenn. LEXIS 277 (Tenn. 1990).

Independent contractor status did not place the defendant outside the purview of T.C.A. § 50-6-102 as the defendant was performing a non-delegable duty of the workers' compensation carrier when it failed to pay plaintiff's claim. Davis v. Alexsis, Inc., 2 S.W.3d 228, 1999 Tenn. App. LEXIS 203 (Tenn. Ct. App. 1999), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 449 (Tenn. Sept. 13, 1999).

Courier, who was denied insurance benefits for an injury sustained while making a delivery, was an employee under T.C.A. § 50-6-102, rather than an independent contractor as designated in his employment contract, where the employer controlled the method of payment, the courier was required to pay for an insurance program that he did not want to participate in, the courier did not have control of his vacation schedule, the employer set the courier's work schedule, the courier did not have time or permission to offer his services to other entities, and the employer had the right to terminate the courier. Dillon v. NICA, Inc., — S.W.3d —, 2011 Tenn. App. LEXIS 669 (Tenn. Ct. App. Dec. 14, 2011).

When physical therapists were required to supervise the therapists'  assistance, such requirement did not make the physical therapists the employees of an insured with whom the therapists contracted, for purposes of making the insured liable to insurers for workers'  compensation premiums for the therapists, because this was a requirement imposed by law that did not show whether the insured could exercise the requisite control over the therapists. Cont'l Cas. Co. v. Theraco, Inc., 437 S.W.3d 841, 2014 Tenn. App. LEXIS 16 (Tenn. Ct. App. Jan. 14, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 451 (Tenn. May 28, 2014).

Insured was not liable to insurers for workers'  compensation premiums for physical therapists with whom the insured contracted on the theory that the therapists were the insured's employees because the therapists were independent contractors, as there was insufficient evidence that the insured had the right to control how the therapists provided therapy. Cont'l Cas. Co. v. Theraco, Inc., 437 S.W.3d 841, 2014 Tenn. App. LEXIS 16 (Tenn. Ct. App. Jan. 14, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 451 (Tenn. May 28, 2014).

12. —Status of Claimant — Nature of Question.

If facts surrounding oral contract of employment are undisputed the question of determining whether claimant is an employee or an independent contractor is one of law. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

If facts are undisputed question of whether claimant is an employee or an independent contractor is one of law. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

A convict performing work for the county during his imprisonment was not under any contract, express or implied, and was therefore not an employee for purposes of the Workers' Compensation Laws. Abrams v. Madison County Highway Dep't, 495 S.W.2d 539, 1973 Tenn. LEXIS 492 (Tenn. 1973).

Where the new hire was injured in an automobile accident while traveling to a training facility, she was an employee for purposes of T.C.A. § 50-6-102. The new hire was being paid for her time at orientation; as soon as the orientation was over, she was to report to the nursing home to begin her work as a hostess at that facility. Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 2006 Tenn. LEXIS 301 (Tenn. 2006).

13. —Burden of Proof.

The burden of proof is on the employer to show that status of alleged employee was that of an independent contractor. Sledge v. Hunt, 157 Tenn. 606, 12 S.W.2d 529, 1928 Tenn. LEXIS 227 (1928).

Any doubt as to whether an injured worker is an employee or an independent contractor must be resolved in favor of the former. Kamarad v. Parkes, 201 Tenn. 566, 300 S.W.2d 922, 1957 Tenn. LEXIS 335 (1957); Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

Where a business relation or contract of employment, either express or implied, is shown, the burden is on the employer to show that claimant is an independent contractor rather than an employee. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Because the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., must be rationally but liberally construed to promote and adhere to the purpose of securing benefits to those workers who fall within its coverage, the supreme court will resolve doubts in favor of a finding that a worker is an employee rather than an independent contractor. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Burden of proof is upon the employee to establish that the employer “had the requisite number of employees to bring it within the application of Tennessee's compensation statute.” Mooney v. Stainless, Inc., 338 F.2d 127, 1964 U.S. App. LEXIS 4741 (6th Cir. Tenn. 1964), cert. denied, 381 U.S. 925, 85 S. Ct. 1561, 14 L. Ed. 2d 684, 1965 U.S. LEXIS 1173 (1965).

14. —Presumption.

There is a rebuttable presumption that one performing work for another is his employee. Sledge v. Hunt, 157 Tenn. 606, 12 S.W.2d 529, 1928 Tenn. LEXIS 227 (1928); Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930); Phillips v. Tennessee Eastman Corp., 160 Tenn. 538, 26 S.W.2d 1051, 1929 Tenn. LEXIS 130 (1929).

Where employment appears, the presumption is that one doing work is an employee and the burden is on the employer who seeks to be relieved from the liability arising from such relationship to establish an independent contractual relationship and to show that he has relinquished his right to control the other and that the other did not have to take orders and instructions from him. Welch v. Reiling, 170 Tenn. 698, 99 S.W.2d 216, 1936 Tenn. LEXIS 51 (1936); Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

15. —Necessity of Contract.

No action will lie unless the parties are bound by contract, express or implied. Cornett v. Chattanooga, 165 Tenn. 563, 56 S.W.2d 742, 1932 Tenn. LEXIS 86 (1933); Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

Recovery under the Workers' Compensation Act, whether by an adult or a minor, is recovery as under a contract. Moore v. Nashville Union Stock Yards, Inc., 169 Tenn. 638, 90 S.W.2d 524, 1935 Tenn. LEXIS 91 (1936).

16. —Regular Employee.

The amount of compensation paid and the length of time one is employed are not determinative of whether he is a regular or a casual employee, nor is it material that an alleged employee is related to his employer. Brady v. Reed, 186 Tenn. 556, 212 S.W.2d 378, 1948 Tenn. LEXIS 581 (1948); American Surety Co. v. Clarksville, 204 Tenn. 67, 315 S.W.2d 509, 1958 Tenn. LEXIS 247 (1958).

The mere fact that some of the persons who were in the defendants' service were minors and were “picked up” from day to day and not used for a specified time does not exclude them from the class of regular employees as defined by state statutes. So long as they were members of the class who were doing some work that was necessary in carrying on the particular business, they fall within the classification of those “regularly employed.” Brady v. Reed, 186 Tenn. 556, 212 S.W.2d 378, 1948 Tenn. LEXIS 581 (1948).

The nature of the employment rather than its frequency or infrequency or its duration determines whether the employment is casual or regular. American Surety Co. v. Clarksville, 204 Tenn. 67, 315 S.W.2d 509, 1958 Tenn. LEXIS 247 (1958).

So long as compensation claimant was a member of a class doing some work necessary in carrying on defendant's business he fell within the classification of those regularly employed. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

17. —Part-time.

Evidence was sufficient to show that claimant was a part-time employee. Jones v. Crenshaw, 645 S.W.2d 238, 1983 Tenn. LEXIS 604 (Tenn. 1983).

18. —Temporary Work for Another Employer.

Where employer authorized its employee to execute trucking “trip lease” with another trucking company, employer remained liable for employee's injuries even though trip lease worked to sole benefit of other company. Argonaut Ins. Co. v. Vanatta, 539 S.W.2d 35, 1976 Tenn. LEXIS 571 (Tenn. 1976).

19. —Last Date Worked Rule.

The “last date worked” rule was adopted to prevent workers with gradual and repetitive injuries from losing the opportunity to bring claims due to the statute of limitations; thus, where evidence supported a causal connection between plaintiff's injury and her employment, her failure to miss work was not fatal to her claim. Story v. Legion Ins. Co., 3 S.W.3d 450, 1999 Tenn. LEXIS 434 (Tenn. 1999).

Last day worked rule does not apply when determining an employee's compensation rate if the employee gives the employer actual notice of a gradually occurring injury prior to missing time from work on account of the injury. Accordingly, the judgment of the trial court was modified to reflect an award based on a weekly compensation rate calculated as of the date the employee reported her gradually occurring injury to her employer, rather than on the date of her surgery, the latter date being the date she finally stopped working. Bone v. Saturn Corp., 148 S.W.3d 69, 2004 Tenn. LEXIS 907 (Tenn. 2004), overruled in part, Bldg. Materials Corp. v. Britt, 211 S.W.3d 706, 2007 Tenn. LEXIS 21 (Tenn. 2007), overruled, Shoulders v. TRW Commer. Steering Div., — S.W.3d —, 2007 Tenn. LEXIS 351 (Tenn. Apr. 3, 2007), overruled, Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 2007 Tenn. LEXIS 741 (Tenn. Aug. 30, 2007), overruled in part, Mathenia v. Milan Seating Sys., 254 S.W.3d 313, 2007 Tenn. LEXIS 896 (Tenn. 2007), overruled, Buckingham v. Fid. & Guar. Ins. Co., — S.W.3d —, 2007 Tenn. LEXIS 910 (Tenn. Oct. 25, 2007), overruled, Pickens v. Delta Faucet, — S.W.3d —, 2007 Tenn. LEXIS 914 (Tenn. Oct. 29, 2007), overruled, Aerospace Testing Alliance v. Anderson, — S.W.3d —, 2008 Tenn. LEXIS 369 (Tenn. May 23, 2008), overruled in part, Edwards v. Saturn Corp., — S.W.3d —, 2008 Tenn. LEXIS 617 (Tenn. Sept. 25, 2008).

20. —Loaned Employees.

Although during the year immediately preceding an employee's death, he was loaned to another company by his employer, and worked for the other company three weeks, he should be treated as a regular employee of his employer during the year, and comes under subdivision (a)(1), in determining the amount of compensation. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

Where truck owner loaned drivers to contractor for hauling of material to state highway and contractor supervised hauling and paid wages though deducting amount of wages from amount due truck owner, the contractor was a special employer and was liable to injured truck driver for compensation. Wardrep v. Houston, 168 Tenn. 170, 76 S.W.2d 328, 1934 Tenn. LEXIS 36 (1934).

In determining whether an employee in a particular instance should be regarded as a loaned employee in the service of a special employer or whether he should be regarded as remaining in the service of his general employer the question of whose work the employee was engaged in at the time of the injury is a test to be considered. Owen v. St. Louis Spring Co., 175 Tenn. 543, 136 S.W.2d 498, 1939 Tenn. LEXIS 72 (1940).

Where it was the duty of the seller of a machine to furnish a man to install the machine and to instruct the buyer's employees in the use of it and where the buyer could instruct such person what to do but not how to do it, a worker who was injured while engaged in such operations was not a loaned employee even though he was at the time on the payroll of the buyer but was in the employ of the general employer. Owen v. St. Louis Spring Co., 175 Tenn. 543, 136 S.W.2d 498, 1939 Tenn. LEXIS 72 (1940).

Employee loaned by employer to foreman for personal use outside of working hours, where employer continues to pay wages, is not injured in course of employment where accidental death occurred in employer's truck, even though employee had finished job, delivered helper home, and was returning truck to employer. Kempkau v. Cathey, 198 Tenn. 17, 277 S.W.2d 392, 1955 Tenn. LEXIS 339 (1955).

The rule was adopted in Tennessee that where a general employer lends an employee to a special employer the special employer becomes liable for workers' compensation only if: (1) The employee has made a contract of hire express or implied with the special employer; (2) The work being done is essentially that of the special employer; and (3) The special employer has the right to control the details of the work. Winchester v. Seay, 219 Tenn. 321, 409 S.W.2d 378, 1966 Tenn. LEXIS 531 (1966).

Where worker was injured while cutting metal strip to fit under air conditioner over door of restaurant, such employee was engaged in maintenance and repair work so as to be entitled to compensation from restaurant owner rather than from his regular employer even though he was regularly employed at nearby hotel where at time of injury he was working under direction of owner of restaurant and not of his regular employer. Winchester v. Seay, 219 Tenn. 321, 409 S.W.2d 378, 1966 Tenn. LEXIS 531 (1966).

Where four separate equipment rental corporations had common president, vice president and general manager who supervised all operations and exercised control over all employees who at different times performed work for all corporations, employee of one corporation who was injured while performing work for a second of the corporations was engaged in dual employment and his remedy was against second corporation under the Workers' Compensation Law rather than by common law tort action. Potts v. Knox-Tenn Rental, Inc., 62 Tenn. App. 699, 467 S.W.2d 796, 1971 Tenn. App. LEXIS 205 (Tenn. Ct. App. 1970).

Decedent was not a loaned employee where she was employed by the wholly owned subsidiary of a parent corporation, although at the time of her death in an industrial explosion she was doing work for the parent company which controlled the details of her work, due to fact that decedent was not transferred to a new payroll and that the evidence at trial failed to show that decedent expressly or impliedly consented to a change of employers. Latham v. Technar, Inc., 390 F. Supp. 1031, 1974 U.S. Dist. LEXIS 6079 (E.D. Tenn. 1974).

Where plaintiff was injured while he was working on a crew which had been requested by defendant from plaintiff's regular employer, and where this crew was working under the direction of one of defendant's supervisors, plaintiff was a “loaned servant” and defendant was consequently plaintiff's employer for the purposes of recovery. Carpenter v. Hooker Chemical & Plastics Corp., 553 S.W.2d 356, 1977 Tenn. App. LEXIS 286 (Tenn. Ct. App. 1977).

Employee found to be “loaned servant.” Catlett v. Indemnity Ins. Co., 813 S.W.2d 411, 1991 Tenn. LEXIS 270 (Tenn. 1991).

21. —Employee of Independent Contractor.

Plaintiff who worked for general contractor was employee of general contractor where latter constructed a home for third party on a flat fee of five percent of cost, though plaintiff was paid directly by third party. Edwards v. Harvey, 194 Tenn. 603, 253 S.W.2d 766, 1952 Tenn. LEXIS 428 (1952).

Evidence that contractor had actual knowledge and notice of accident, and that claimant was contractor's employee, was sufficient to uphold award of compensation. Rote v. Walls, 197 Tenn. 463, 274 S.W.2d 1, 1954 Tenn. LEXIS 508 (1954).

Where contractor was engaged on a cost plus basis to make certain changes in manufacturing plant and such contractor employed and supervised its own workers and acted in its own discretion as to the manner of accomplishing the alterations provided for in the contract, worker injured on the construction project was an employee of the contractor and not of the manufacturing corporation and was entitled to maintain common law action against manufacturing corporation as third party tort feasor. Bowaters Southern Paper Corp. v. Brown, 253 F.2d 631, 1958 U.S. App. LEXIS 5205 (6th Cir. Tenn. 1958).

Where evidence showed that deceased was killed more than three months after his employment was terminated by defendant manufacturing company and that at the time of the accident he was driving a truck owned and operated by and under the instructions of a third party, he was not an employee of defendant manufacturing company even though at the time of the accident the truck was carrying property of defendant manufacturing company. Gluck Bros., Inc. v. Turner, 205 Tenn. 691, 330 S.W.2d 311, 1959 Tenn. LEXIS 409 (1959).

22. —Minors.

Every injured employee must give notice of injury as prescribed by statute even though he is a minor, unless there is a reasonable excuse for not doing so. Moore v. Nashville Union Stock Yards, Inc., 169 Tenn. 638, 90 S.W.2d 524, 1935 Tenn. LEXIS 91 (1936).

23. — —Validity of Provisions as to.

This statute is not invalid as undertaking to make an election for and a binding contract upon a minor employee when, by reason of such minority, he is unable to make such election or contract, since the act makes him sui juris as to power of election for purpose of the act. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

24. — —Illegal Employment — Effect.

Prior to the 1961 amendment, subdivision (a)(2) (now (a)(3)(A)) did not include the words “whether lawfully or unlawfully employed” following the word “minor.” Under the law prior to such amendment it was held that a minor unlawfully employed was not covered by the Workers' Compensation Law and therefore could maintain an action at common law for damages in the cases of Manning v. American Clothing Co., 147 Tenn. 274, 247 S.W. 103, 1922 Tenn. LEXIS 39 (1922); Western Union Tel. Co. v. Ausbrooks, 148 Tenn. 615, 257 S.W. 858, 1923 Tenn. LEXIS 47, 33 A.L.R. 330 (1924); Knoxville News Co. v. Spitzer, 152 Tenn. 614, 279 S.W. 1043, 1925 Tenn. LEXIS 108 (1926). It was held otherwise, however, with respect to employment in violation of municipal ordinance in Walsh v. Myer Hotel Co., 161 Tenn. 355, 30 S.W.2d 225, 1929 Tenn. LEXIS 64 (1930).

It was also indicated that a minor unlawfully employed could elect whether to seek recovery under the act or sue for damages at common law in the cases of Western Union Tel. Co. v. Ausbrooks, 148 Tenn. 615, 257 S.W. 858, 1923 Tenn. LEXIS 47, 33 A.L.R. 330 (1924); American Surety Co. v. Clarksville, 204 Tenn. 67, 315 S.W.2d 509, 1958 Tenn. LEXIS 247 (1958).

Where death of minor occurred prior to effective date of 1961 amendment extending definition of employee to a minor whether lawfully or unlawfully employed, administrator of minor's estate was entitled to maintain suit against employer of minor for wrongful death and amendment had no retroactive effect so as to preclude actions at law arising prior to the time the amendment became effective. Pigg v. Stacey, 210 Tenn. 144, 356 S.W.2d 593, 1962 Tenn. LEXIS 414 (1962); Mills v. Pigg, 54 Tenn. App. 612, 393 S.W.2d 28, 1965 Tenn. App. LEXIS 281 (Tenn. Ct. App. 1965).

In common law action for wrongful death arising prior to 1961 amendment to this section making compensation law applicable to minors whether lawfully or unlawfully employed, exclusion of evidence offered by defendants to show that decedent minor was lawfully employed at time of death and that common law action was thereby precluded was improper. Mills v. Pigg, 54 Tenn. App. 612, 393 S.W.2d 28, 1965 Tenn. App. LEXIS 281 (Tenn. Ct. App. 1965).

25. Leased Operators.

Grant of summary judgment in favor of the alleged employer was proper pursuant to T.C.A. § 50-6-106(1)(A) where it was not, as a matter of law, the alleged employees' employer so as to subject it to liability under the Workers' Compensation Law, T.C.A. § 50-6-101 et seq.; in a service agreement executed by the alleged employer and company, the company agreed to provide drivers to the alleged employer and the agreement stated that the personnel supplied to the alleged employer would be employees of the company only. Honsa v. Tombigbee Transp. Corp., 141 S.W.3d 540, 2004 Tenn. LEXIS 632 (Tenn. 2004), rehearing denied, — S.W.3d —, 2004 Tenn. LEXIS 826 (Tenn. Aug. 18, 2004).

26. — —Limitations.

Since subdivision (a)(2) (now (a)(3)(A)) expressly includes a minor within the definition of an employee and § 50-6-224(4) (now 50-6-224(a)(4)), expressly excludes minors from those entitled to extension of the statute of limitations for reasons of physical or mental incapacity to assert their rights, a minor is subject to the one year statute of limitations with reference to making his claim under the Workers' Compensation Law. Franse v. Knox Porcelain Corp., 171 Tenn. 49, 100 S.W.2d 647, 1936 Tenn. LEXIS 59 (1937).

27. —Associations — Status of Members.

Where incorporated rural education association paid plaintiff hourly wages before she signed paper stating that she was a member of the association and that thereafter she was to be paid “merely for the purpose of subsistence,” that she was not an employee and that any sums she received were not to constitute wages, but where she was continually paid a wage thereafter until the time of her injury, plaintiff was an employee of the association and the association was not relieved from liability under the compensation statute. Schroader v. Rural Educational Ass'n, 33 Tenn. App. 36, 228 S.W.2d 491, 1950 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1950).

28. —Corporate Officers.

Prior to the 1963 amendment subdivision (a)(2) (now (a)(3)(A)) did not include the words “the president, any vice president, secretary, treasurer, or other executive officer of a corporate employer” in the definition of “employee.” Cases decided prior to such amendment and determining whether the specific duties of such officials would constitute them employees are Alsup v. Murfreesboro Bread & Ice Cream Co., 165 Tenn. 591, 56 S.W.2d 746, 1932 Tenn. LEXIS 91 (1933); Alperin v. Eagle Indem. Co., 169 Tenn. 215, 84 S.W.2d 101, 1935 Tenn. LEXIS 34 (1935).

29. —Municipal Officers and Employees.

A policeman of a city is a civil officer and not “under any contract of hire” so as to be an employee. Cornett v. Chattanooga, 165 Tenn. 563, 56 S.W.2d 742, 1932 Tenn. LEXIS 86 (1933); Woods v. La Follette, 185 Tenn. 655, 207 S.W.2d 572, 1947 Tenn. LEXIS 370 (1947). However, see insurance company would cover a police officer when the provisions of the contract clearly provided for such coverage.

Where the injured employee seeking compensation was employed and paid by the federal emergency relief administration, and received the injury to his eye when engaged in emergency work, in the extension of a street, under a foreman furnished by the city, he is not entitled to compensation under the Workers' Compensation Act as against the city, since the work was being prosecuted by the federal emergency relief administration. Shelton v. Greeneville, 169 Tenn. 366, 87 S.W.2d 1016, 1935 Tenn. LEXIS 56 (1935).

Where there was material evidence to sustain the finding of the trial judge that the primary duties of municipal employee suing the municipality under the Workers' Compensation Law were those of a street superintendent or foreman and that he was acting in that capacity at the time of the accidental injury such finding was upheld even though there was some evidence in the record to show that petitioner served as an arresting officer or policeman. Shelbyville v. Hamilton, 170 Tenn. 297, 95 S.W.2d 43, 1935 Tenn. LEXIS 136 (1936).

30. —Stockholder of Employer.

The fact that an employee was a stockholder in the employer corporation is immaterial on question of his right to compensation. Alsup v. Murfreesboro Bread & Ice Cream Co., 165 Tenn. 591, 56 S.W.2d 746, 1932 Tenn. LEXIS 91 (1933).

31. —Partners.

A member of a partnership who receives wages is not an employee. An employee must be under the control of the employer. Gebers v. Murfreesboro Laundry Co., 159 Tenn. 51, 15 S.W.2d 737, 1928 Tenn. LEXIS 61 (1929).

Where decedent mined coal under an agreement of mutual understanding of partnership or joint venture, and each controlled his own work, and after the expenses were determined and deducted from the proceeds of the coal, the balance was divided up between the members in accordance with the amount of time each worked, deceased was not an employee. Tidwell v. Walden, 205 Tenn. 705, 330 S.W.2d 317, 1959 Tenn. LEXIS 411 (1959).

32. —Payment of Social Security Tax — Effect.

The payment by the employer of social security tax on the earnings of a traveling salesman was a recognition of the fact that such person was an employee so that the employer was in no position to deny the fact of employment. Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

Lumber company which provided plans and specifications for house, guaranteed owner that house would be erected to FHA or GI specifications, paid for labor on house, withheld social security and withholding taxes for all laborers except injured worker, relied on mechanics' and materialmen's statute, made statements at various times that it was the builder and furnisher and supervised job from beginning to end was employer of injured workman where proof showed that there was no difference between such worker and the other employees working on construction of the house except for fact that social security and withholding taxes were not withheld as to him. Kamarad v. Parkes, 201 Tenn. 566, 300 S.W.2d 922, 1957 Tenn. LEXIS 335 (1957).

The fact that neither social security taxes nor withholding taxes are deducted is not controlling on question of whether or not claimant is an employee. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

33. —Carrying Compensation Insurance — Effect.

Where an employer carries workers' compensation insurance and the earnings of the employee are included in computing the premiums paid for such insurance, neither the employer nor the insurer is in a position to question the relationship of the parties under the compensation law. Employers' Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837, 1937 Tenn. LEXIS 89 (1938) (decision under Kentucky statute); Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

Fact that building corporation included window washer in social security list which insurance company used to determine premium on policy covering employees of corporation was a factor to be considered in determining whether window washer was an employee or an independent contractor. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

Independent contractor was not covered by workers' compensation although deductions for workers' compensation insurance were deducted from checks paid to independent contractor. Barnes v. National Mortg. Co., 581 S.W.2d 957, 1979 Tenn. LEXIS 442 (Tenn. 1979).

34. —Admissibility of Evidence.

Testimony of municipal officers and others tending to show the character of work required of petitioner and petitioner's contract of employment with town was admissible in suit by municipal employee against town under the Workers' Compensation Law as showing that petitioner was an employee subject to the statute rather than a policeman with the weight of such testimony being for the trial judge. Shelbyville v. Hamilton, 170 Tenn. 297, 95 S.W.2d 43, 1935 Tenn. LEXIS 136 (1936).

35. Maximum Total Benefit.

The 1985 amendment to T.C.A. § 50-6-208(b)(2) does not authorize an exception to the maximum total benefit limitation of T.C.A. § 50-6-102 so that an employee who has been awarded temporary total disability benefits and permanent total disability benefits can recover more than the statutory maximum. Smith v. Liberty Mut. Ins. Co., 762 S.W.2d 883, 1988 Tenn. LEXIS 266 (Tenn. 1988).

When an injury is confined to a scheduled member, ordinarily only the statutory benefits for that particular member can be awarded. Onley v. National Union Fire Ins. Co., 785 S.W.2d 348, 1990 Tenn. LEXIS 81 (Tenn. 1990).

Award of permanent total disability benefits under T.C.A. § 50-6-207(4)(A)(i) are payable to age 65 without regard to the monetary cap imposed by the maximum total benefit provisions of T.C.A. § 50-6-102. Love v. American Olean Tile Co., 970 S.W.2d 440, 1998 Tenn. LEXIS 296 (Tenn. 1998).

Awards of permanent and total disability are not subject to the monetary cap imposed by the 400 week maximum total benefit provision of T.C.A. § 50-6-102. Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

Because the statutory definition of maximum total benefit exempts permanent total disability awards from the 400 week limitation, such benefits are to be paid until age 65 under T.C.A. § 50-6-207(4)(A)(i) without regard to the monetary cap imposed by the maximum total benefit provision of T.C.A. § 50-6-102. Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

As awards of permanent total disability under T.C.A. § 50-6-207(4)(A)(i) are not subject to the monetary cap imposed by the definition contained in T.C.A. § 50-6-102, once the employee was reclassified as being “100 percent permanently and totally disabled,” the employer and the workers' compensation insurer were liable for the total disability award without any credit for temporary total disability benefits previously paid to the employee. Vinson v. UPS, 92 S.W.3d 380, 2002 Tenn. LEXIS 706 (Tenn. 2002).

The 400-week statutory limitation applied to temporary total disability benefits as the statutory definition of maximum total benefit was clear; the only category of disability benefits exempted from this 400-week limitation was permanent total disability benefits and the maximum total benefit 400-week limitation applied to temporary total disability benefits. Thus, trial court erred in ordering the insurer to pay temporary total disability benefits in excess of the statutory 400-week limitation. Wausau Ins. Co. v. Dorsett, 172 S.W.3d 538, 2005 Tenn. LEXIS 660 (Tenn. 2005).

36. Maximum Weekly Benefit.

In the case of an employee who died with dependents in February 1993, the “maximum weekly benefit” was determined based upon the employee's average weekly wage; not until 662/3% of the employee's average weekly wage equals or exceeds 78% of the state's average weekly wage would that figure be used to determine the amount of compensation benefits payable to the dependents. Spencer v. Towson Moving & Storage, 922 S.W.2d 508, 1996 Tenn. LEXIS 306 (Tenn. 1996).

In a workers'  compensation case where the employee alleged she sustained injuries to her ankle and knee while lifting a patient, the trial court awarded 291 weeks of temporary disability benefits and a 65% permanent partial disability to the leg which resulted in a total award of 421 weeks of benefits. The trial court erred by awarding benefits in excess of the statutory maximum set out in T.C.A. § 50-6-102 because the employee's recovery of permanent and temporary disability benefits was subject to the 400-week maximum. Collier v. Life Care Ctrs. of Collegedale, — S.W.3d —, 2012 Tenn. LEXIS 736 (Tenn. Oct. 8, 2012), aff'd, — S.W.3d —, 2012 Tenn. LEXIS 737 (Tenn. Oct. 8, 2012).

37. Average Weekly Wages.

The court must ascertain the average weekly wages of petitioner by past earnings and not by what he may earn in the future. White v. Pinkerton Co., 155 Tenn. 229, 291 S.W. 448, 1926 Tenn. LEXIS 40 (1927); Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

The three methods of ascertaining the average weekly wage discussed. White v. Pinkerton Co., 155 Tenn. 229, 291 S.W. 448, 1926 Tenn. LEXIS 40 (1927); Bragg's Quarry v. Smith, 161 Tenn. 682, 33 S.W.2d 87, 1930 Tenn. LEXIS 55 (1930).

Ascertainment of average weekly wages as a basis of workers' compensation where employed over a year prior to the injury is constitutional under equal protection and due process clauses of U.S. Const., amend. 14 and Tenn. Const., art. I, § 8, where total wages for year are divided by 52, less weeks involuntarily laid off but not less weeks voluntarily laid off such as strike for employee's benefit. Hartley v. Liberty Mut. Ins. Co., 197 Tenn. 504, 276 S.W.2d 1, 1954 Tenn. LEXIS 519 (1954).

The average weekly wage of a claimant in workers' compensation must be ascertained by past earnings and not by what he may earn in the future. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Where employee was injured while engaged in part time work of unloading truck for carrier as loaned employee, award would be based on employee's part time earnings rather than on basis of standard hourly wage. Johnson v. Aero Mayflower Transit Co., 221 Tenn. 219, 425 S.W.2d 757, 1968 Tenn. LEXIS 458 (1968).

The compensation award is determined by the amount of wages the employee earns and not by the rate of the wage. Johnson v. Aero Mayflower Transit Co., 221 Tenn. 219, 425 S.W.2d 757, 1968 Tenn. LEXIS 458 (1968).

A computation of the “average weekly wage” of a part-time employee, such as the plaintiff, must be based upon his actual part-time earnings rather than upon the basis of the standard hourly wage or the standard work week of 40 hours. McKinney v. Feldspar Corp., 612 S.W.2d 157, 1981 Tenn. LEXIS 405 (Tenn. 1981).

Except in those cases where the claimant earns a given sum for a normal week, actual wages should be used in computing the claimant's average weekly wages. Russell v. Genesco, Inc., 651 S.W.2d 206, 1983 Tenn. LEXIS 653 (Tenn. 1983).

In computing an injured employee's average weekly wage, the court considers only the earnings of the injured employee in the employment in which he was working when injured. Acklie v. Carrier, 785 S.W.2d 355, 1990 Tenn. LEXIS 69 (Tenn. 1990).

The value of fringe benefits is not included in the calculation of an employee's average weekly wage. Pollard v. Knox County, 886 S.W.2d 759, 1994 Tenn. LEXIS 295 (Tenn. 1994).

Trial court erred in ruling that weeks an injured employee spent on strike should be excluded from the employee's average weekly wage because time spent away from work due to a strike was a voluntary absence. Goodman v. HBD Indus., 208 S.W.3d 373, 2006 Tenn. LEXIS 991 (Tenn. 2006), cert. denied, 550 U.S. 918, 127 S. Ct. 2130, 167 L. Ed. 2d 863, 2007 U.S. LEXIS 4558 (2007).

38. —What Constitutes Earnings.

The earnings of an employee include anything received by him under the terms of his employment contract from which he realizes economic gain. P & L Constr. Co. v. Lankford, 559 S.W.2d 793, 1978 Tenn. LEXIS 702 (Tenn. 1978).

Where an employee-shareholder foregoes any direct monetary compensation for his labors, a measure of his earnings would be the compensation paid by the same company to another employee performing the same or similar duties. P & L Constr. Co. v. Lankford, 559 S.W.2d 793, 1978 Tenn. LEXIS 702 (Tenn. 1978).

In certain situations involving closely held corporations, an employee-shareholder's earnings may include the implicit increase in the value of the stock held by such employee-shareholder which occurs when he foregoes any direct monetary compensation for his labors. P & L Constr. Co. v. Lankford, 559 S.W.2d 793, 1978 Tenn. LEXIS 702 (Tenn. 1978).

Gifts are not “earnings” within the meaning of of T.C.A. § 50-6-102. Jones v. Crenshaw, 645 S.W.2d 238, 1983 Tenn. LEXIS 604 (Tenn. 1983).

39. —Wages for Year as Basis of Computation.

It is only when the employment has been regular and continuous for a year or longer that the average weekly wage is determined by dividing the total wages received during the year by 52. Bragg's Quarry v. Smith, 161 Tenn. 682, 33 S.W.2d 87, 1930 Tenn. LEXIS 55 (1930).

In a compensation proceeding, where the chancellor found that the injured employee's total earnings for 52 weeks were $1,030.74, and during the year preceding the injury decedent lost six and 5/7 weeks of work, his average weekly wage was $22.76, on which compensation was properly based. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

40. —Time Lost as Incident to Employment.

Where worker had been employed regularly and continuously for several years, and such employment varied from week to week as to the number of hours per day and days per week, but since variation in weekly wages and amount of time worked per week was a normal and recognized incident of the employment and not due to chance happenings or uncontemplated circumstances, the proper test for determining worker's weekly wage was a division of the total annual amount earned by 52. Carter v. Victor Chemical Works, 171 Tenn. 141, 101 S.W.2d 462, 1936 Tenn. LEXIS 73 (1937).

Time lost by chance or accident is deducted, but time lost because of incidental events common and natural to the type or kind of employment, is not deducted. Strikes and “mine creep” are natural incidents of coal mining, and injured employee's average weekly wage was computed by dividing wages for the 52 weeks immediately preceding injury by 52, without deductions for 10 weeks lost because of a strike and “mine creep.” New Jellico Coal Co. v. Kenner, 172 Tenn. 185, 110 S.W.2d 476, 1937 Tenn. LEXIS 68 (1937).

41. —Loaned Employee.

Deceased was an employee for 52 week period prior to death though he was loaned to another company for three weeks during that period. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

42. —Wages Divided by Weeks Employed.

Average weekly wage of grocery store clerk who worked during holidays and Saturday afternoons and nights for 10 weeks was properly computed by dividing the total wages received by number of weeks employed. White v. Pinkerton Co., 155 Tenn. 229, 291 S.W. 448, 1926 Tenn. LEXIS 40 (1927).

Average wage determined by dividing wages received by number of weeks worked. Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

Where employment covered a period of several years but the employee did not work regularly and continuously, compensation will be based on average weekly wages actually earned during time of actual employment, the statute not specifically covering such a case. Bragg's Quarry v. Smith, 161 Tenn. 682, 33 S.W.2d 87, 1930 Tenn. LEXIS 55 (1930).

Where deceased lost six and 5/7 weeks out of 52 week period prior to death, proper method of determining average weekly wage was to divide total amount earned by 45 and 2/7 weeks. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

Where injured employee worked intermittently for a total of 14 weeks during the year preceding his injury, with the time worked being dependent on the amount of work his employer had available, such employee was not regularly employed within the meaning of this section and his average weekly wages should have been determined by dividing the total amount earned during the year by the number of weeks worked. Toler v. Nashville, C. & S. L. Ry., 173 Tenn. 378, 117 S.W.2d 751, 1937 Tenn. LEXIS 36 (1938).

Where time lost from work was not because of the fault of employee but because of shortage of material or lack of orders, average weekly wage would be determined on the basis of the number of weeks actually worked. Bryant v. McAllister, 202 Tenn. 654, 308 S.W.2d 412, 1957 Tenn. LEXIS 451 (1957).

Where injured employee was only employed part-time, the correct method of computing his average weekly wage was to divide the total wages received during the year by the number of weeks during which the employee received wages. Gaw v. Raymer, 553 S.W.2d 576, 1977 Tenn. LEXIS 584 (Tenn. 1977).

The average weekly wage of a part-time employee is found by dividing the total wages received during the year by the number of weeks during which the employee received wages. McKinney v. Feldspar Corp., 612 S.W.2d 157, 1981 Tenn. LEXIS 405 (Tenn. 1981).

The proper method of computing the average wages of a regular employee is to total his earnings and divide by 52, and in deciding which “lost” days can be deducted from the 52 weeks, only sickness, other disabilities and fortuitous events can be considered. Russell v. Genesco, Inc., 651 S.W.2d 206, 1983 Tenn. LEXIS 653 (Tenn. 1983).

43. —Wages of Person of Same Grade in Same Work.

A finding by the trial court that, because of the short duration of employment, it was impracticable to calculate compensation otherwise than by having regard to the available wages received by a person of the same grade, employed at the same work by the same employer, is one of fact binding on the supreme court when not appealed from. United States Fidelity & Guaranty Co. v. McBride, 165 Tenn. 580, 56 S.W.2d 736, 1932 Tenn. LEXIS 89 (1933).

Where employee worked only a few weeks before injury, finding as to amount of compensation due such employee based on wages of employee during such period including overtime and Sunday work was improper, and such finding should have been based on the average weekly wages of other employees in the same grade of work and class of employment. United States Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184, 1937 Tenn. LEXIS 112 (Tenn. Mar. 7, 1938).

Where deceased railroad switchman who worked only a day and a half during the preceding year was working under the “extra board” system when killed and evidence showed that switchmen working under such system averaged 20 days per month, the average weekly wage of other switchmen working under the system was to be used in determining compensation under the statute. A. G. S. R. Co. v. Wright, 175 Tenn. 138, 133 S.W.2d 457, 1939 Tenn. LEXIS 23 (1939).

44. —Evidence of Average Weekly Wage.

Where injured employee testified that his earnings had been $16.50 per week, agreement of employer and employee upon payment of $8.25 per week as compensation and payment thereof for 13 weeks afforded some evidence of employee's average weekly earnings for 52 weeks preceding injury. Cambria Coal Mining Co. v. Wilson, 156 Tenn. 64, 299 S.W. 811, 1927 Tenn. LEXIS 84 (1927).

Where plaintiff was paid a gross salary out of which he had to deduct his expenses, it was impossible to use any of the methods described in this section to determine his average weekly wage, and therefore resort to the average weekly amount being earned by a person in the same grade employed in the same class of employment in the same district was proper. American Mut. Liability Ins. Co. v. Bradshaw, 568 S.W.2d 97, 1978 Tenn. LEXIS 608 (Tenn. 1978).

Where the eight weeks during which the workers'  compensation claimant was on a leave of absence constituted lost days due to sickness or disability, those days and the disability benefits received, those days were properly excluded by the trial court from the computation of the claimant's average weekly wage under T.C.A. § 50-6-102. Cantrell v. Carrier Corp., 193 S.W.3d 467, 2006 Tenn. LEXIS 447 (Tenn. May 30, 2006).

45. —Bonuses and Allowances.

Bonus received by refiner of aluminum ore for doing a certain amount of work and working a certain number of days each week was a part of his compensation to be included in the computation of his average weekly pay. Otherwise the employer might escape his burdens by paying small wages and large bonuses. Moss v. Aluminum Co. of America, 152 Tenn. 249, 276 S.W. 1052, 1925 Tenn. LEXIS 69 (1925).

Provision that “wherever allowances of any character made to an employee in lieu of wages are specified as part of the wage contract, they shall be deemed a part of his earnings” is inapplicable where bonuses are not claimed to have been made in lieu of wages, the only question being whether the bonus was a part of the wages. Moss v. Aluminum Co. of America, 152 Tenn. 249, 276 S.W. 1052, 1925 Tenn. LEXIS 69 (1925).

“Meals” and “tips” are not part of the wage contract unless specifically made a part by the contract of employment. Crane Co. v. Jamieson, 192 Tenn. 41, 237 S.W.2d 546, 1951 Tenn. LEXIS 378 (1951).

When it is within the contemplation of the parties that tips received by an employee should be retained by him as part of his compensation such tips should be taken into account in determining average weekly wages. Bryson v. Benton, 217 Tenn. 116, 395 S.W.2d 794, 1965 Tenn. LEXIS 523 (1965).

Where employer and waitress in restaurant both treated tips as part of wages, such tips were “in lieu of wages” and within meaning of this section and were to be taken into account in computing average weekly wages. Bryson v. Benton, 217 Tenn. 116, 395 S.W.2d 794, 1965 Tenn. LEXIS 523 (1965).

46. Injury by Accident.

The word “accident” implies that the injury must partake of the unusual, casual, or fortuitous. Meade Fiber Corp. v. Starnes, 147 Tenn. 362, 247 S.W. 989, 1922 Tenn. LEXIS 48 (1923).

An injury need not be traumatic, it may be accidental whether occasioned by heat, germs or more abrupt or perceptible physical force. Whether an infection is an accidental injury must be determined on the facts of the case. Hartford Acci. & Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904, 1928 Tenn. LEXIS 76 (1929); Sears-Roebuck & Co. v. Starnes, 160 Tenn. 504, 26 S.W.2d 128, 1929 Tenn. LEXIS 126 (1930).

The statute is only applicable to cases of accidental injury, which is one unforeseen, unexpected and fortuitous. An element of unexpected casualty must be present. Other injuries are for common law action. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931).

An award is sustainable if death has been the result of, or shall at least have been substantially contributed to by, a compensable injury. Lenoir Car Works v. Hill, 163 Tenn. 578, 44 S.W.2d 321, 1931 Tenn. LEXIS 151 (1931).

The word “injury” as used in this chapter is synonymous with the word “accident” as used herein. Franse v. Knox Porcelain Corp., 171 Tenn. 49, 100 S.W.2d 647, 1936 Tenn. LEXIS 59 (1937).

Employee who for 18 months was required to stand over a melting pot in connection with his duties, and on specified date became sick, was not entitled to recover compensation for alleged ailment, since ailment was the gradual result of breathing fumes for a period of 18 months, and not the result of a single occurrence. Gabbard v. Proctor & Gamble Defense Corp., 184 Tenn. 464, 201 S.W.2d 651, 1947 Tenn. LEXIS 398 (1947).

An accident is an event or happening in the nature of a misfortune, casual or fortuitous. Benjamin F. Shaw Co. v. Musgrave, 189 Tenn. 1, 222 S.W.2d 22, 1949 Tenn. LEXIS 394 (1949); Railway Express Agency, Inc. v. Clark, 194 F.2d 29, 1952 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1952).

Employee was not entitled to recover for loss of vision due to removal of eye after rock struck the eye where medical evidence showed that removal of eye was due to diseased blood vessel. Craig v. Marquette Cement Mfg. Co., 190 Tenn. 234, 229 S.W.2d 148, 1950 Tenn. LEXIS 473 (1950).

Neurosis due to being struck on neck by employer's truck while engaged in moving barricade was compensable. Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

Stroke sustained at home by employee in failing health after doing normal work during day was not compensable though he had headache on the job. McMahan v. Travelers Ins. Co., 114 F. Supp. 286, 1953 U.S. Dist. LEXIS 3960 (D. Tenn. 1953).

Where deceased suffered a heart attack and died while unloading plumbing fixtures, his death was attributable to an accidental injury arising out of and in the course of his employment and was compensable under this act. Patterson Transf. Co. v. Lewis, 195 Tenn. 474, 260 S.W.2d 182, 1953 Tenn. LEXIS 417 (1953).

Under Tennessee law, a heart attack brought about or aggravated by the exertion of work of an employee is an accident within the meaning of this statute. Aetna Casualty & Surety Co. v. Johnson, 278 F.2d 200, 1960 U.S. App. LEXIS 4678 (6th Cir. Tenn. 1960).

An accident is generally an unlooked for mishap, an untoward event, which is not expected or designed. Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65, 1961 Tenn. LEXIS 353 (1961).

Gradually occurring traumatic injury to ulnar nerve as a result of repeated movement of such nerve in and out of groove it normally occupied while employee was operating machine as required by his employment was an accidental injury and not an occupational disease. Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65, 1961 Tenn. LEXIS 353 (1961).

“Injury” as applied to a personal injury to a human being includes whatever lesion or change to any part of the system produces harm or lessened facility of the natural use of any bodily activity or capability. Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65, 1961 Tenn. LEXIS 353 (1961).

If ordinary exertion or usual strain produces an unusual result, the resulting injury is by accident and is compensable. Huey Bros. Lumber Co. v. Kirk, 210 Tenn. 170, 357 S.W.2d 50, 1962 Tenn. LEXIS 420 (1962); Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964).

When a condition has developed gradually over a period of time resulting in a definite work-connected, unexpected, fortuitous injury, it is an “accident” within the terms of the statute. Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964).

Where employee gradually developed a protruded or herniated disc as a result of strain or exertion involved in lifting heavy freight, such injury was compensable. Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964).

An accidental injury is an unusual, fortuitous or unexpected happening causing an injury which is accidental in character. Travelers Ins. Co. v. Googe, 217 Tenn. 272, 397 S.W.2d 368, 1965 Tenn. LEXIS 543 (1965); Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968); Electro--Voice, Inc. v. O'Dell, 519 S.W.2d 395, 1975 Tenn. LEXIS 705 (Tenn. 1975).

Where handling of heavy hides in tanning operation resulted in disability from pressure on nerve of hand of employee, such disability constituted injury by accident. A. C. Lawrence Leather Co. v. Britt, 220 Tenn. 444, 414 S.W.2d 830, 1967 Tenn. LEXIS 425 (1967), rehearing denied, 220 Tenn. 457, 418 S.W.2d 660, 1967 Tenn. LEXIS 426 (1967).

The courts will not attempt to lay down an exclusive definition of the word “accident” although they will observe certain boundaries including the requirement that the injury must be unexpected. Kroger Co. v. Johnson, 221 Tenn. 649, 430 S.W.2d 130, 1967 Tenn. LEXIS 363 (1967).

Severe cramping and pain in feet and legs which resulted from standing and lifting were conditions which would normally be expected to develop in person having flat feet and such cramping and pain would not be considered as result of injury by accident to employee having such foot condition even though standing and lifting was part of his employment. Kroger Co. v. Johnson, 221 Tenn. 649, 430 S.W.2d 130, 1967 Tenn. LEXIS 363 (1967).

The mere manifestation of a heart condition without proof of any strain or over-exertion at work does not show an accidental injury even though the development of the heart disease may have been hastened by the employee's usual and ordinary work. Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968); Chapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 426 S.W.2d 760, 1968 Tenn. LEXIS 470 (1968).

When an employee's work exposes him to an elemental force and requires him to continue to work under the risk of the hazard which the elemental force creates, the employee is to be compensated for injuries which result therefrom. Globe Co. Inc. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253, 1969 Tenn. LEXIS 387 (1969).

An employee who was required to assume a certain posture by her employment which increased the pain of a previously suffered injury which was not related to her employment, did not sustain an “accident” within the meaning of this section. Boling v. Raytheon Co., 223 Tenn. 528, 448 S.W.2d 405, 1969 Tenn. LEXIS 439 (1969).

An accidental injury is one which cannot be reasonably anticipated, is unexpected and is precipitated by unusual combinations of fortuitous circumstances. A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141, 1970 Tenn. LEXIS 329 (1970).

If the usual strain or exertion of work produces an unusual result, the resulting injury is by accident. A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141, 1970 Tenn. LEXIS 329 (1970).

Where employee was required to assume an unusual position in digging a ditch and such strain resulted in back injury, employee suffered injury by accident. A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141, 1970 Tenn. LEXIS 329 (1970).

Compensation is allowable for conditions which do not occur instantaneously as the result of one accident but develop gradually over varying periods of time resulting from repeated work related incidents. St. Paul Ins. Co. v. Waller, 524 S.W.2d 478, 1975 Tenn. LEXIS 666 (Tenn. 1975).

Where the usual strain or exertion of work causes an unusual result, such an injury is “by accident” under this section. Continental Ins. Co. v. Dowdy, 560 S.W.2d 619, 1978 Tenn. LEXIS 570 (Tenn. 1978).

“Injury by accident” does not embrace every stress or strain of daily living or every undesirable experience encountered in carrying out the duties of a contract of employment. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

Workers' compensation coverage is not as broad as general, comprehensive health and accident insurance. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

A very liberal interpretation has been given in this state to the statutory requirement of “injury by accident.” Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979); Mays v. United States Fed. & Guar. Co., 672 S.W.2d 773, 1984 Tenn. LEXIS 819 (Tenn. 1981).

47. —Failure to Show Compensable Accident.

Where plaintiff claimed that long hours and work stress of a general nature exacerbated his heart condition, he failed to show that he suffered a compensable “accident” within the meaning of the Workers' Compensation Law, T.C.A. § 50-6-101 et seq.Sexton v. Scott County, 785 S.W.2d 814, 1990 Tenn. LEXIS 122 (Tenn. 1990).

48. —False Medical Information.

False medical information will bar recovery under the workers' compensation statute if employer shows: (1) That the employee knowingly and willfully made a false representation of his physical condition; (2) That the employer relied on the false representation and that this reliance was a substantial factor in the decision to hire; and (3) That there is a causal connection between the false representation and the injury subsequently suffered by the employee. Bane v. Daniel Constr. Co., 793 S.W.2d 256, 1990 Tenn. LEXIS 278 (Tenn. 1990).

49. —Causal Connection — Meaning.

The burden rests upon the employee to show a causal connection between his injury and his employment, but by “causal connection” is meant not proximate cause as used in the law of negligence, but cause in the sense that the accident had its origin in the hazards to which the employment exposed the employee while doing his work. Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977, 1951 Tenn. LEXIS 374 (1951).

There must be a causal connection between a worker's accidental injury and his death and the nature of his employment. McCann Steel Co. v. Carney, 192 Tenn. 94, 237 S.W.2d 942, 1951 Tenn. LEXIS 386 (1951).

Where doctor testified that employee complained of increasing pain in abdomen following a fall, a ruptured appendix was causally related to the fall, even though there was no direct evidence that fall actually caused the ruptured appendix, since absolute certainty was not required to support award. Great American Indem. Co. v. Friddell, 198 Tenn. 360, 280 S.W.2d 908, 1955 Tenn. LEXIS 381 (1955).

Question of whether accident suffered by workman initiated gall bladder and liver trouble of worker or merely aggravated it was immaterial where there was a causal relation between the initiating accident and the resultant disability and the inception of plaintiff's disability was assignable to the accident. Kitts v. American Mut. Liability Ins. Co., 133 F. Supp. 937, 1955 U.S. Dist. LEXIS 2971 (D. Tenn. 1955).

Where medical evidence did not establish causal connection between injury to truck driver's hip and side, award for total and permanent disability caused by lung cancer was not justified. American Casualty Co. v. Ball, 211 Tenn. 608, 366 S.W.2d 773, 1963 Tenn. LEXIS 384 (1963).

Question of causal connection between injury and employment is one of fact. Cas Walker's Cash Stores, Inc. v. Livesay, 215 Tenn. 306, 385 S.W.2d 745, 1965 Tenn. LEXIS 618 (1965).

There must be a causal connection between the worker's accidental injury or death and the nature of his employment. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965); Globe Co. Inc. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253, 1969 Tenn. LEXIS 387 (1969).

Causal connection is cause in the sense the accident had its origins in the hazards to which the employment exposed the employee while doing his work. Lawrenceburg v. Nelson, 219 Tenn. 177, 407 S.W.2d 674, 1966 Tenn. LEXIS 516 (1966).

The question of causal connection is one of fact and review of trial court on this point will only be for sole purpose of determining if there is material evidence to support findings. Poe v. E. I. Dupont Denemours & Co., 224 Tenn. 683, 462 S.W.2d 480, 1970 Tenn. LEXIS 392 (1970).

Where employee fainted and was nauseous while being treated for an on the job injury to her ankle and shortly after she felt stiffness of the neck, the evidence was sufficient to establish a causal connection between stress during treatment of the ankle injury and the rupture of a pre-existent aneurism. Elmore's Variety Store v. White, 553 S.W.2d 350, 1977 Tenn. LEXIS 581 (Tenn. 1977).

Where employee had recently assumed a new job involving heavier work, and experienced a sudden pain in her shoulder while flinging a pair of overalls onto a rack, which was a usual action required in her new job, there was sufficient evidence of a causal connection between her injury and her work. Continental Ins. Co. v. Dowdy, 560 S.W.2d 619, 1978 Tenn. LEXIS 570 (Tenn. 1978).

Where the cause of a fall is due to some condition personal to the employee, and is not causally related to some hazard incident to the conditions of the employment, injury resulting therefrom is not compensable under workers' compensation statutes. Dickerson v. Trousdale Mfg. Co., 569 S.W.2d 803, 1978 Tenn. LEXIS 628 (Tenn. 1978).

In many of the cases where recovery has been allowed for myocardial infarctions, although not in all, some unusual or sudden event involving emotional stress, fright or shock could be pointed to as the precipitating event. In others, the statutory provisions did not include a requirement of injury by accident. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

When emotional stress that accompanies the performance of the employment contract is “within the bounds of the ups and downs of emotional normal human experience”, courts frequently decline to impose liability upon employers for conditions resulting from “cumulated” strain. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

Absent either physical exertion or some acute, sudden or unexpected emotional stress directly attributable to employment, an industrial accident should not be deemed to have occurred, even though worry, anxiety or emotional stress of a general nature may have preceded the onset of a myocardial infarction. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

Mental stimulus, such as fright, shock or excessive unexpected anxiety resulting in injury might justify a compensation award. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

In determining whether an accident arose out of and in the course of employment, the relation of the employment to the injury is the essential point of inquiry, liability for workers' compensation is not based upon any act or omission of the employer. Thus, the law of tort causation, wherein liability is predicated upon fault and nullified by contributory fault, is not applicable in workers' compensation cases. Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

The court was unwilling to find that the shift of hours that an employer has available for an employee can be considered to provide a causal connection between the conditions under which the work is performed and an employee's inability to discipline his personal life. Henley v. Roadway Express, 699 S.W.2d 150, 1985 Tenn. LEXIS 561 (Tenn. 1985).

There was no causal connection between the conditions under which work was required to be performed and the resulting injury where the claimant suffered a severe and unusual reaction from ingesting a substance to enhance his work performance where the substance was not found in the workplace, was not supplied by the employer, nor was the use of the substances explicitly or implicitly required by the employment. Arden v. Hutch Mfg. Co., 771 S.W.2d 406, 1989 Tenn. LEXIS 188 (Tenn. 1989).

Refusal to award medical expenses to employee in a workers'  compensation action was appropriate pursuant to T.C.A. § 50-6-102 because he failed to exercise due care and was negligent in placing his hand on the hot burner of the stove in his kitchen which operated to relieve the employer of liability for medical expenses incurred in treating the injuries from his negligent act; when employee disregarded his disabled condition and placed his fingers on the hot stove, responsibility for the accident and its consequences could no longer fairly be ascribed to his original compensable injury. Anderson v. Westfield Group, 259 S.W.3d 690, 2008 Tenn. LEXIS 532 (Tenn. Aug. 12, 2008).

Workers'  compensation award based on a claimant's workplace smoke inhalation was error because the claimant suffered from bulla emphysema from his cigarette smoking, and the evidence preponderated against a finding that the workplace smoke inhalation advanced the claimant's preexisting bulla emphysema; there was no evidence that the claimant's breathing limits were the direct result of damage to his remaining lung tissue caused by smoke he inhaled at the workplace and the plain meaning of the expert testimony was that the surgery was performed to treat the bullous emphysema and not the smoke inhalation. Although one doctor stated that the smoke inhalation contributed to and aggravated the claimant's emphysema, he did not state that the smoke inhalation itself advanced the severity of the claimant's preexisting condition or cause a new distinct injury. McGowan v. State, — S.W.3d —, 2012 Tenn. LEXIS 65 (Tenn. Feb. 15, 2012), review denied, — S.W.3d —, 2012 Tenn. LEXIS 70 (Tenn. Feb. 15, 2012).

Finding that an employee established causation for his injury arising from a spinal infection was proper based on the expert medical testimony; the claimant's treating surgeon stated that trauma could have been a “participating” or “contributing” factor in the development of infection and that the claimant's medical history made him more vulnerable to an infection. A second doctor testified unequivocally that the claimant's injury at work led to a hematoma, which then served as a “breeding ground” for his spinal infection, and, although the second doctor's testimony was more equivocal as to causation, he testified that the work-related injury “more likely” aggravated an ongoing infection. Stewart v. Westfield Ins. Co., — S.W.3d —, 2012 Tenn. LEXIS 66 (Tenn. Feb. 16, 2012), aff'd, — S.W.3d —, 2012 Tenn. LEXIS 67 (Tenn. Feb. 16, 2012).

Appellate court declined to apply the causation standard of an amended statute retroactively to an employee's injury in a workers'  compensation case. Marvel v. Roane Transp. Servs., LLC, — S.W.3d —, 2015 Tenn. LEXIS 587 (Tenn. July 23, 2015), aff'd, Marvel v. Roane Transp. Servs., — S.W.3d —, 2015 Tenn. LEXIS 586 (Tenn. July 23, 2015).

50. —Employment as Means of Accident.

The purpose of the Workers' Compensation Act is to afford protection against accidental results, and, broadly speaking, under such statute, the employment itself is the means of the accident, and the employment, of course, is never accidental. Scott v. Metropolitan Life Ins. Co., 169 Tenn. 351, 87 S.W.2d 1011, 1935 Tenn. LEXIS 53 (1935).

Where employee, after becoming ill with pains in chest and arms, was sent to company infirmary where he rested for approximately two hours and was then sent back to work, and later that day died from a heart attack while working, his death arose out of and in the course of his employment although he was doing nothing but his ordinary work. Johnson v. Aetna Casualty & Surety Co., 174 F. Supp. 308, 1959 U.S. Dist. LEXIS 3037 (D. Tenn. 1959), aff'd, 278 F.2d 200, 1960 U.S. App. LEXIS 4678 (6th Cir. Tenn. 1960).

Where worker would have completely recovered from an attack of edema occurring on the job except for an operation performed for correction of heart disease having no connection with his employment, evidence was not sufficient to establish causal connection between employment and disability. E. I. Du Pont De Nemours & Co. v. Kessler, 208 Tenn. 224, 345 S.W.2d 663, 1961 Tenn. LEXIS 414 (1961).

Recovery of benefits is proper for death due to a heart attack immediately precipitated by acute or sudden emotional stress as opposed to physical exertion, where the necessary causal connection is properly established by the proof. Cabe v. Union Carbide Corp., 644 S.W.2d 397, 1983 Tenn. LEXIS 601 (Tenn. 1983).

51. —Two or More Accidents Causing Injury.

A disability is nonetheless an injury by accident when it results from a series of accidents, each specific and ascertainable, although its exclusive influence in the resulting disability cannot be fixed precisely. Burton v. Miller Bros. Co., 166 Tenn. 622, 64 S.W.2d 195, 1933 Tenn. LEXIS 127 (1933).

While an accidental injury must be assignable to a particular time and place, the rule is satisfied if each of several accidents, assigned as the combined or alternative causes of a disability, can be thus localized and identified. Burton v. Miller Bros. Co., 166 Tenn. 622, 64 S.W.2d 195, 1933 Tenn. LEXIS 127 (1933).

It is not necessary that the happening of the accident be a single occurrence identified in space or time. Benjamin F. Shaw Co. v. Musgrave, 189 Tenn. 1, 222 S.W.2d 22, 1949 Tenn. LEXIS 394 (1949).

Where there are two equally probable causes of death, one which would impose liability and the other which would not, the plaintiff must fail since the burden of proof to establish accidental death rests upon him. Railway Express Agency, Inc. v. Clark, 194 F.2d 29, 1952 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1952).

Where permanent and total loss of use of eye was the result of two accidents occurring while employee was in employ of different employers and under testimony it was impossible to allocate any particular part of the loss to any particular employer, chancellor's finding of joint and several liability on part of both employers was correct. J. E. Greene Co. v. Bennett, 207 Tenn. 635, 341 S.W.2d 751, 1960 Tenn. LEXIS 503 (1960), overruled in part, Indiana Lumberman's Mut. Ins. Co. v. Ray, 596 S.W.2d 816, 1980 Tenn. LEXIS 434 (Tenn. 1980).

The last employer or insurance carrier will be liable in full for any permanent disability resulting from the last of successive injuries under different employers or insurance carriers. Globe Co. Inc. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253, 1969 Tenn. LEXIS 387 (1969).

52. —Prima Facie Case of Accident — Effect.

Where the claimant had made out a prima facie case, the employer is required to go forward and negative this prima facie case. This may either be done by showing the cause of death or by showing other causes equally probable. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

Where an employee is found dead at his post of labor, without direct evidence as to the manner of his death, an inference may arise of an accident springing out of and in the course of his employment. In other words a prima facie case for the claimant is thus supported. When such a prima facie case is thus made out the burden shifts to the employer to produce evidence to overthrow it. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

The defendant is not called upon to introduce any proof or make any explanation as to the death of the employee except where the facts alleged make a prima facie case. Farris v. Yellow Cab Co., 189 Tenn. 46, 222 S.W.2d 187, 1949 Tenn. LEXIS 397 (1949).

Where there was substantial evidence that the decedent was in good health prior to his death and upon the very morning of his death, that he had sustained a serious fall after propelling a handtruck and handling several crates which weighed between 25 and 35 pounds and that immediately after the fall there was a bruise on his head which might have been the cause of his death, the evidence was sufficient to create a prima facie case of accident, and the trial court's finding that death was due to an accident was not clearly erroneous, notwithstanding the employer's contention that the medical evidence established the cause of death as heart seizure. Railway Express Agency, Inc. v. Clark, 194 F.2d 29, 1952 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1952).

Prima facie case of compensable death was shown where miner found dead in mine had shoveled 18 tons of coal from kneeling position. Phillips v. Eureka Casualty Co., 133 F. Supp. 630, 1955 U.S. Dist. LEXIS 2930 (D. Tenn. 1955), aff'd, 233 F.2d 743, 1956 U.S. App. LEXIS 3202 (6th Cir. Tenn. 1956).

Where an employee is found dead at his post of labor without direct evidence as to the manner of his death an inference may arise of an accident springing out of and in the course of his employment and when a prima facie case is thus made out the burden shifts to the employer to overturn such prima facie case. Eureka Casualty Co. v. Phillips, 233 F.2d 743, 1956 U.S. App. LEXIS 3202 (6th Cir. Tenn. 1956).

53. —Disease or Condition Contributing to Injury.

A cook, becoming faint from overheated kitchen, stepped into an alley for fresh air and falling was injured by a passing truck. He was entitled to recover. Patten Hotel Co. v. Milner, 145 Tenn. 632, 238 S.W. 75, 1921 Tenn. LEXIS 101 (1921).

Where epilepsy, or other physical disturbances, suddenly and without expectation occur and contribute to cause an injury to an employee while at work the same should be held compensable, provided there is present another hazard, incident to the employment, which is generally known to exist and which is shown to be the immediate cause of the accident. Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977, 1951 Tenn. LEXIS 374 (1951).

Sickness, or any idiopathic condition, is considered as a “remote cause;” if another cause, incident to the employment, is present and is the immediate cause of the injury and death it is an injury “arising out of,” the employment. McCann Steel Co. v. Carney, 192 Tenn. 94, 237 S.W.2d 942, 1951 Tenn. LEXIS 386 (1951).

A predisposition toward an injury will not bar a claimant from workers' compensation. Bush Bros. & Co. v. Williams, 197 Tenn. 334, 273 S.W.2d 137, 1954 Tenn. LEXIS 491 (1954).

Where tension or fatigue of work accelerated or triggered a cerebral thrombosis, causing the employee to faint, striking his head upon the floor, resulting in a fractured skull, which caused his death, the employee's death was caused by an accident while in the performance of his duties and was compensable. Whitehead v. Aluminum Co., 239 F. Supp. 415, 1965 U.S. Dist. LEXIS 7060 (E.D. Tenn. 1965), aff'd, Whitehead v. Aluminum Co. of America, 361 F.2d 620, 1966 U.S. App. LEXIS 5862 (6th Cir. Tenn. 1966).

The death of a worker who was caused to fall by a cerebral thrombosis, fracturing his skull, was due to an accident arising out of and in the course of his employment. Whitehead v. Aluminum Co. of America, 361 F.2d 620, 1966 U.S. App. LEXIS 5862 (6th Cir. Tenn. 1966).

54. —Aggravation of Preexisting Condition.

Compensation may be properly awarded for disability resulting from aggravation of a preexisting heart disorder by an accidental injury. Sanders v. Blue Ridge Glass Corp., 161 Tenn. 535, 33 S.W.2d 84, 1930 Tenn. LEXIS 40 (1930); Anderson v. Volz Const. Co., 183 Tenn. 169, 191 S.W.2d 436, 1946 Tenn. LEXIS 197 (1946); Lucey Boiler & Mfg. Corp. v. Hicks, 188 Tenn. 700, 222 S.W.2d 19, 1949 Tenn. LEXIS 393 (1949).

Preexisting weakness or disease will not prevent injury from being result of accident, and acceleration or aggravation of preexisting ailment may be compensable injury. Cambria Coal Co. v. Ault, 166 Tenn. 567, 64 S.W.2d 18, 1933 Tenn. LEXIS 118 (1933).

Dependents of an injured employee were entitled to compensation, where the injury either caused his death or accelerated an existing cancer or other malady, thereby causing his death. Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804, 1937 Tenn. LEXIS 16 (1938).

Evidence to the effect that worker suffered from diseased blood vessels prior to his death but prior to the time of his death had performed his work and was apparently undisturbed by his condition supported the finding of the trial judge that his death was the result of a fall while on the job which induced the rupture of the blood vessels. Riverside Mill Co. v. Parsons, 176 Tenn. 381, 141 S.W.2d 895, 1939 Tenn. LEXIS 128 (1940).

Death of employee which occurred without warning while making manholes on a hot day was not compensable where medical evidence showed that cause of death was the sudden cutting off of blood supply as result of diseased heart. Anderson v. Volz Const. Co., 183 Tenn. 169, 191 S.W.2d 436, 1946 Tenn. LEXIS 197 (1946).

Injured back from lifting side of beef, though due to a congenital weak back, is compensable. Swift & Co. v. Howard, 186 Tenn. 584, 212 S.W.2d 388, 1948 Tenn. LEXIS 585 (1948).

When an employer employs a worker he takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not hurt or bother a perfectly normal, healthy person. If the injury is the proximate cause of the disability and excites and aggravates a previous weakened condition, then the employer is liable. Swift & Co. v. Howard, 186 Tenn. 584, 212 S.W.2d 388, 1948 Tenn. LEXIS 585 (1948).

Ruptured aneurism of aorta 55 minutes after accidental injury to finger and 10 minutes after amputation of finger was compensable, though walls of aorta had been weakened by disease of syphilis, where there was testimony by expert witnesses that ruptured aneurism could have been due to excitement from accident. Lucey Boiler & Mfg. Corp. v. Hicks, 188 Tenn. 700, 222 S.W.2d 19, 1949 Tenn. LEXIS 393 (1949).

Disability resulting from an untoward event, which we commonly refer to as an accident, that hastens the onset of an affliction or aggravates a preexisting disease, is compensable. Howell v. Charles H. Bacon Co., 98 F. Supp. 567, 1951 U.S. Dist. LEXIS 2266 (D. Tenn. 1951), aff'd, 197 F.2d 333, 1952 U.S. App. LEXIS 2625 (6th Cir. Tenn. 1952).

In an action to recover death benefits under the Workers' Compensation Law, the stronger inference was that the injury of decedent and the inseparable consequences of ceaseless pain and worry and nervous tension aggravated a preexisting coronary sclerosis and hastened his death, and the death was held compensable. Howell v. Charles H. Bacon Co., 98 F. Supp. 567, 1951 U.S. Dist. LEXIS 2266 (D. Tenn. 1951), aff'd, 197 F.2d 333, 1952 U.S. App. LEXIS 2625 (6th Cir. Tenn. 1952).

Where the evidence showed that the employee died of blood poisoning resulting from a cut received in the course of his employment, the death arose out of and in the course of the employment, in spite of the fact that the employee was suffering from leukemia, and would eventually have died from that disease. McCann Steel Co. v. Carney, 192 Tenn. 94, 237 S.W.2d 942, 1951 Tenn. LEXIS 386 (1951).

Where an accident can be fairly considered to be a contributing cause of death, it is compensable under the statute, even though the injured employee was suffering from some prior disability of a serious nature. Boyd v. Young, 193 Tenn. 272, 246 S.W.2d 10, 1951 Tenn. LEXIS 354, 1951 Tenn. LEXIS 355 (1951).

Where it is doubtless true that sooner or later an employee would have died from a cancer, with which he was afflicted, the case is still compensable if an accident in the course of his employment so accelerated or aggravated the cancer that the accident was a contributing cause to the shortening of his life. Boyd v. Young, 193 Tenn. 272, 246 S.W.2d 10, 1951 Tenn. LEXIS 354, 1951 Tenn. LEXIS 355 (1951).

If a blow inflicted upon the leg injures that leg by aggravating a preexisting disease it is no less an injury received from the blow, within the meaning of the statute, than it would have been if there had been no preexisting disease. Ledford v. Miller Bros. Co., 194 Tenn. 467, 253 S.W.2d 552, 1952 Tenn. LEXIS 405 (1952).

Death of employee from coronary occlusion as result of overworking on a hot day was compensable since exertion aggravated diseased heart condition and hastened his death. Jenkins v. American Mut. Liability Ins. Co., 113 F. Supp. 250, 1953 U.S. Dist. LEXIS 2558 (D. Tenn. 1953).

Employer takes employee in the condition in which he is employed and assumes risk of having any weakened condition aggravated or accelerated by employment, therefore even though employee dies of predisposed disease, if it is shown by expert testimony that physical exertion on the job was a contributing and accelerating factor, a compensable case is made which is not speculative. Heron v. Girdley, 198 Tenn. 110, 277 S.W.2d 402, 1955 Tenn. LEXIS 341 (1955).

Employee may be compensated where peptic ulcer was caused to rupture by strain of work. London & Lancashire Indem. Co. v. Starcher, 202 Tenn. 278, 304 S.W.2d 87, 1957 Tenn. LEXIS 389 (1957).

Recovery may be had for aggravation of preexisting condition where such issue is raised by the evidence, even though the employee does not allege such ground in his pleading or seek at the outset to recover on this theory. Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 315 S.W.2d 245, 1958 Tenn. LEXIS 230 (1958).

Evidence that heat stroke occurring in course of employment aggravated a preexisting arteriosclerosis condition was sufficient to make out a compensable injury. Eslinger v. Miller Bros. Co., 203 Tenn. 688, 315 S.W.2d 261, 1958 Tenn. LEXIS 236 (1958).

If the physical activity and exertion of an employee's work aggravates a preexisting heart condition, precipitates a fatal heart attack and thus hastens his death, such death is the result of accident arising out of and in the course of the employment. Nashville Pure Milk Co. v. Rychen, 204 Tenn. 575, 322 S.W.2d 432, 1958 Tenn. LEXIS 277 (1958); Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959); Sweat v. United States Fidelity & Guaranty Co., 169 F. Supp. 155, 1959 U.S. Dist. LEXIS 3816 (E.D. Tenn. 1959), aff'd, 272 F.2d 943, 1959 U.S. App. LEXIS 2913 (6th Cir. Tenn. 1959); Huey Bros. Lumber Co. v. Kirk, 210 Tenn. 170, 357 S.W.2d 50, 1962 Tenn. LEXIS 420 (1962).

Where an employer employs a worker, he takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not affect a normal person. Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959); Combustion Engineering Co. v. Blanks, 210 Tenn. 233, 357 S.W.2d 625, 1962 Tenn. LEXIS 428 (1962); Fidelity & Casualty Co. v. Treadwell, 212 Tenn. 1, 367 S.W.2d 470, 1963 Tenn. LEXIS 393 (1963); American Surety Co. v. Kizer, 212 Tenn. 328, 369 S.W.2d 736, 1963 Tenn. LEXIS 426 (1963); Fink v. Caudle, 856 S.W.2d 952, 1993 Tenn. LEXIS 378 (Tenn. 1993).

Where evidence sustained finding of trial court that employee's fall from bakery truck in the course of his employment aggravated preexisting cirrhosis of the liver and resulted in permanent partial disability of 75 percent of the whole body, causal connection was established between the employment and the injury so that employee was entitled to compensation. Martha White Bakeries, Inc. v. Vance, 204 Tenn. 491, 322 S.W.2d 206, 1959 Tenn. LEXIS 302 (1959).

Where evidence sustained the finding that worker who had preexisting condition of berry aneurysm died from the rupture of a blood vessel while using a power saw in the course of his employment, such death was compensable. Huey Bros. Lumber Co. v. Kirk, 210 Tenn. 170, 357 S.W.2d 50, 1962 Tenn. LEXIS 420 (1962).

Traumatic aggravation of otherwise noncompensable disease as result of employment was compensable. Combustion Engineering Co. v. Blanks, 210 Tenn. 233, 357 S.W.2d 625, 1962 Tenn. LEXIS 428 (1962).

Where last injury resulted from the aggravation of a prior injury received while working for another employer and in proceeding for compensation from the last employer it was determined that the disability was attributable to the injury received while working for such employer, such employer could not bring action for contribution against the first employer. Baxter v. Smith, 211 Tenn. 347, 364 S.W.2d 936, 1962 Tenn. LEXIS 360 (1962).

Disability resulting from aggravation of a preexisting disease or condition is compensable. American Surety Co. v. Kizer, 212 Tenn. 328, 369 S.W.2d 736, 1963 Tenn. LEXIS 426 (1963).

Where worker reported to work in apparent good health and about an hour later suffered a rupture of a hemangioma or vascular tumor located on the left cerebral hemisphere while working as a ripsaw operator and there was medical testimony that such physical exertion could produce the rupture, evidence sustained finding of trial judge that death of employee resulted from accidental injury arising out of and in the course of his employment. Morristown Chest Co. v. Morgan, 212 Tenn. 441, 370 S.W.2d 513, 1963 Tenn. LEXIS 439 (1963).

Although driving a tractor-trailer rig may have aggravated claimant's diseased heart condition, under Tennessee law it was not enough to establish that his death was due to an accident arising out of and in the course of his employment; in addition, preponderance of evidence must show driving the truck aggravated plaintiff's diseased condition and that his death was accelerated as a proximate result of such aggravation. Kirby v. Dance Freight Lines, 226 F. Supp. 947, 1964 U.S. Dist. LEXIS 6452 (E.D. Tenn. 1964).

Proof failed to show that death of plaintiff's intestate, which followed driving tractor-trailer rigs for employer, was caused by an accident arising out of or in the course of his employment or that his heart trouble was aggravated to the extent that it shortened his life or accelerated his death. Kirby v. Dance Freight Lines, 226 F. Supp. 947, 1964 U.S. Dist. LEXIS 6452 (E.D. Tenn. 1964).

Where, due to cerebral thrombosis, which was aggravated, accelerated or triggered by his work, employee became dizzy and immediately fell to the floor, sustaining skull fracture which was the primary cause of death, employee met with an accident while in performance of his duties, for purposes of workers' compensation. Whitehead v. Aluminum Co., 239 F. Supp. 415, 1965 U.S. Dist. LEXIS 7060 (E.D. Tenn. 1965), aff'd, Whitehead v. Aluminum Co. of America, 361 F.2d 620, 1966 U.S. App. LEXIS 5862 (6th Cir. Tenn. 1966).

Where decedent, driver of tractor-trailer rig, died at his home after returning from a long and strenuous trip which placed unusual stress on his preexisting diseased heart, the widow was entitled to recover, as her husband's death arose out of and in the course of his employment. Treadway v. Associated Transport, Inc., 302 F. Supp. 301, 1969 U.S. Dist. LEXIS 9847 (E.D. Tenn. 1969).

An employer takes an employee as he finds him so that employer is liable for disabilities resulting from injuries sustained by employee arising out of and in the course of his employment even though it aggravates a previous condition with resulting disability far greater than otherwise would have been the case. Globe Co. Inc. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253, 1969 Tenn. LEXIS 387 (1969); Newport v. Webb, 223 Tenn. 445, 446 S.W.2d 683, 1969 Tenn. LEXIS 430 (1969); Blalock v. Williams, 483 S.W.2d 578, 1972 Tenn. LEXIS 366 (Tenn. 1972).

Where, while securing chicken coops on truck in course of his employment, employee suffered attack of angina pectoris which aggravated and accelerated preexisting arteriosclerotic heart disease and contributed to coronary occlusion, employee suffered injury by accident in course of employment. R. E. Butts Co. v. Powell, 225 Tenn. 119, 463 S.W.2d 707, 1971 Tenn. LEXIS 284 (1971).

When an employer employs a worker he takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not hurt or bother a normal, healthy person, but such injury must be the proximate cause of the workers' disability to be compensable. Blalock v. Williams, 483 S.W.2d 578, 1972 Tenn. LEXIS 366 (Tenn. 1972).

Unrebutted statement in death certificate filled out by company doctor that cause of death of employee was “acute coronary thrombosis” due to “coronary atherosclerosis”, together with testimony of physician that if employee had preexisting condition of atherosclerosis then the work he was performing could contribute to accelerate his fatal heart attack was sufficient to support finding of chancellor that there was a causal connection between work employee was performing and his death by heart attack suffered on job. Boles v. Aluminum Co. of America, 483 S.W.2d 582, 1972 Tenn. LEXIS 368 (Tenn. 1972).

The exertion of unloading heavy boxes from a truck aggravated a preexisting condition of arteriosclerosis causing a heart attack which was an injury arising out of and in the course of employment and there was a causal connection therein. Palmer v. Pruitt, 498 S.W.2d 89, 1973 Tenn. LEXIS 453 (Tenn. 1973).

In an action for compensation for permanent partial disability as a result of a ruptured disc, evidence of rheumatoid arthritis in the joints of the arms and legs did not support an award for aggravation of the preexisting condition of rheumatoid arthritis. Murray Ohio Mfg. Co. v. Vines, 498 S.W.2d 897, 1973 Tenn. LEXIS 463 (Tenn. 1973).

Where employee suffered a myocardial infarction while at work, his subsequent death was covered by the act even though exertion at work only aggravated a preexistent condition, and even though the exertion was no more than the job ordinarily required. Kingsport Press, Inc. v. Van Huss, 547 S.W.2d 572, 1977 Tenn. LEXIS 566 (Tenn. 1977).

Where the employee's arthritic condition was aggravated and made symptomatic by the bending, stooping, lifting, reaching and twisting motions required by the job assignment he was given, his injury was included within the definition of an accident. Laminite Plastics Mfg. Co. v. Greene, 561 S.W.2d 458, 1978 Tenn. LEXIS 583 (Tenn. 1978).

Although there was no evidence in record that the last act performed before the onset of pain was the cause of the injury, it is reasonable to conclude that a back injury sustained shortly after doing heavy work was caused by the work, as the injured person suffered from a degenerative disorder which can be aggravated by such work. American Precision, Inc. v. Ottinger, 562 S.W.2d 818, 1978 Tenn. LEXIS 594 (Tenn. 1978).

Where an employer employs a worker, he takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not affect a normal person. See Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

Employee's previous back injury, for which he received compensation for approximately seven to eight percent permanent disability, did not preclude an award for disability resulting from the current injury to his back. Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

Defendant employer which employed plaintiff with a preexisting weakened condition (diabetes), which generally made him more susceptible to infections, was not liable for aggravation of an infection that plaintiff contracted from some source other than work and which has not been shown to be employment-related even though aggravation may have been caused by working conditions. Bowers v. Liberty Mut. Ins. Co., 580 S.W.2d 787, 1979 Tenn. LEXIS 432 (Tenn. 1979).

If a work related accident aggravates an idiopathic condition, causing injury or death, or if it is a contributing cause, compensation is available. Hall v. Auburntown Industries, Inc., 684 S.W.2d 614, 1985 Tenn. LEXIS 468 (Tenn. 1985).

The last successive employer or insurance carrier, taking the employee as he is found at the time of the accident, will be liable for the entire resulting disability, including all medical expenses arising from the disability and regardless of any preexisting condition. Bennett v. Howard Johnsons Motor Lodge, 714 S.W.2d 273, 1986 Tenn. LEXIS 779 (Tenn. 1986).

The aggravation of a preexisting nervous condition by a physical injury is compensable. Thomas v. Aetna Life & Casualty Co., 812 S.W.2d 278, 1991 Tenn. LEXIS 246 (Tenn. 1991).

Physical or mental injuries caused by worry, anxiety or emotional stress of a general nature or ordinary stress associated with the worker's occupation are not compensable; the injury must have resulted from an incident of abnormal and unusual stressful proportions, rather than the day to day mental stresses and tensions to which workers in that field are occasionally subjected. Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 2001 Tenn. LEXIS 140 (Tenn. 2001), rehearing denied, Cunningham v. Shelton Sec. Serv., Inc. , — S.W.3d —, 2001 Tenn. LEXIS 381 (Tenn. 2001).

55. —Alcoholics.

Where an employee, with a five-year history of alcoholism and related diseases, including pancreatitis and cirrhosis of the liver, while on duty as a policeman, fell on an icy street, which aggravated degenerative arthritis in his back and neck causing extreme pain and preventing him from working, and he then began drinking more heavily until six months later, after acute delirium tremens, a marked enlargement of the liver and a collapse, he was admitted to the hospital in a comatose state and died of acute necrotizing pancreatitis contributed to by bilateral lobular pneumonia and cirrhosis, the court held that his fall which occurred in the course of his employment was the proximate cause of his death, that he was not guilty of willful misconduct or intentional self-inflicted injury as defined by § 50-6-110, and that his survivor was entitled to recover full compensation for his injury and death. Wheeler v. Glens Falls Ins. Co., 513 S.W.2d 179, 1974 Tenn. LEXIS 461 (Tenn. 1974).

56. —Subsequent Disease or Condition Resulting from Injury.

Injury resulting from an infection following the formation of a callous upon claimant's fingertip, occasioned by operation of listing machine, was accidental. Sears-Roebuck & Co. v. Starnes, 160 Tenn. 504, 26 S.W.2d 128, 1929 Tenn. LEXIS 126 (1930).

Where an employee, in the course of his employment, accidentally fell and struck his head against a radiator, and soon afterwards symptoms of epilepsy developed without any other apparent cause, and expert medical testimony shows that such an injury often gives rise to epilepsy, it was sufficient to support finding that the condition was brought about by the fall and injury. Sears-Roebuck & Co. v. Finney, 169 Tenn. 547, 89 S.W.2d 749, 1935 Tenn. LEXIS 81 (1936).

Evidence to the effect that the death of a policeman 40 days after being struck by a car was caused by an internal condition which was either brought about by such accident or aggravated thereby was sufficient to support an award for death of the policeman on grounds that such death was either proximately caused or appreciably accelerated by such injury. Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804, 1937 Tenn. LEXIS 16 (1938).

Where three medical witnesses introduced by defendant testified that the cause of cancer was purely speculative, that the idea that a blow might cause cancer had been advanced but never proven true and where medical witness for petitioner testified that medical science did not know that cancer will result from certain conditions or that it results from traumatic conditions, finding of the trial judge that the proof did not establish that cancer from which deceased worker died was caused by a blow sustained in the course of employment was proper. McBrayer v. Dixie Mercerizing Co., 178 Tenn. 135, 156 S.W.2d 408, 1941 Tenn. LEXIS 41 (1941).

Evidence held sufficient to justify the finding of the trial court that pericarditis with effusion, by which disease the employee was disabled, was directly attributable to repeated sharp blows upon the chest suffered by the employee in the course of his employment. Benjamin F. Shaw Co. v. Musgrave, 189 Tenn. 1, 222 S.W.2d 22, 1949 Tenn. LEXIS 394 (1949).

Coronary occlusion three months and one week after injury to foot as result of fall was compensable where employee had suffered pain and shock to nervous system so as to aggravate heart condition. Howell v. Charles H. Bacon Co., 98 F. Supp. 567, 1951 U.S. Dist. LEXIS 2266 (D. Tenn. 1951), aff'd, 197 F.2d 333, 1952 U.S. App. LEXIS 2625 (6th Cir. Tenn. 1952).

Where petitioner made out a prima facie case that death of deceased employee from cerebro vascular accident was contributed to or aggravated by a sun or heat stroke, and there was no autopsy or any evidence contrary to prima facie case established by petitioner, an award for compensation was justified. Cunningham v. Hembree, 195 Tenn. 107, 257 S.W.2d 12, 1953 Tenn. LEXIS 307 (1953).

Where employee employed as a miner, in apparent good health, sustained a ruptured artery after crawling on his hands and knees a distance of 500 to 800 feet, and 30 days thereafter, following two operations for the purpose of tying off some of the blood flow to the artery, died of thrombosis of the artery, widow was entitled to compensation since exertion in reaching his work was the cause of the ruptured artery. Lay v. Blue Diamond Coal Co., 196 Tenn. 63, 264 S.W.2d 223, 1953 Tenn. LEXIS 406 (1953).

It was immaterial that the initial injury may have been small in contrast to the grave consequences which resulted where there was a causal relation between the initiating accident and the resultant disability. Kitts v. American Mut. Liability Ins. Co., 133 F. Supp. 937, 1955 U.S. Dist. LEXIS 2971 (D. Tenn. 1955).

Testimony of claimant's attendant doctor that first heart attack in course of employment could have so impaired the heart to make it incapable of standing later attack, without stating direct causal relationship, was sufficient to justify award upon holding that the first attack substantially contributed to the second. Powers v. Beasley, 197 Tenn. 549, 276 S.W.2d 720, 1955 Tenn. LEXIS 315 (1955).

Where decedent carrying heavy loads in work suffered a brain hemorrhage and, after several months' treatment, suffered another hemorrhage causing death, his death arose out of original employment since it contributed to his death. Parrott v. Parrott, 198 Tenn. 96, 278 S.W.2d 83, 1955 Tenn. LEXIS 350 (1955).

Where workers' compensation claimant suffered electric shock which doctors testify could “possibly” have caused later brain injury seven years after shock, with no symptoms in meantime, decision of trial judge refusing award on basis of one of two reasonable conflicting inferences as to cause will be sustained. Lynch v. La Rue, 198 Tenn. 101, 278 S.W.2d 85, 1955 Tenn. LEXIS 351 (1955).

Where employee was hospitalized as result of compensable injury, aggravation of injury as result of negligence of hospital orderly while bathing employee during course of treatment was compensable. Mallette v. Mercury Outboard Supply Co., 204 Tenn. 438, 321 S.W.2d 816, 1959 Tenn. LEXIS 298 (1959), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Chancellor was justified in finding causal connection between employee's back injury and his death from hepatitis where employee used drugs and whiskey to relieve continued and excruciating pain resulting from such injury without knowing that they were dangerous to his life when he was suffering from malnutrition. Fennell v. Maryland Casualty Co., 208 Tenn. 116, 344 S.W.2d 352, 1961 Tenn. LEXIS 402 (1961).

Death of worker resulting from operation of tractor was not compensable as arising out of his former employment on ground that necessity of operation of tractor resulting from his inability to perform former work. Jones v. Huey, 210 Tenn. 162, 357 S.W.2d 47, 1962 Tenn. LEXIS 419 (1962).

Where the primary injury is shown to have arisen out of and in the course of the employment, every natural consequence that flows from such injury likewise arises out of the employment unless the subsequent injury is the result of an independent intervening cause attributable to the employee's own negligence or misconduct. Jones v. Huey, 210 Tenn. 162, 357 S.W.2d 47, 1962 Tenn. LEXIS 419 (1962).

Where, in compensation suit involving successive hospitalizations, chancellor found that disability resulted from injury occurring at time of first hospitalization, such finding was binding in suit between the insurance carriers as of the two dates who, although not named, had entered appearances in the original suit. United States Fidelity & Guaranty Co. v. Bituminous Casualty Corp., 52 Tenn. App. 43, 371 S.W.2d 801, 1962 Tenn. App. LEXIS 129 (Tenn. Ct. App. 1962).

Where an employee was injured about the hips, pelvis and legs in a cave-in and an embolism developed during his convalescence causing either a pulmonary embolism or a coronary thrombosis, causing the employee to fall out of a chair and die, his death was caused by the injuries received in his employment. Manis v. Travelers Ins. Co., 239 F. Supp. 439, 1965 U.S. Dist. LEXIS 7062 (E.D. Tenn. 1965).

Nurse's claim for workers' compensation benefits, based upon the nurse's claim that the nurse had contracted tuberculosis when the nurse's hand came into contact with the blood of a patient who was subsequently diagnosed with tuberculosis, was dismissed because the nurse failed to present competent medical evidence that the nurse had contracted tuberculosis as a result of the nurse's employment. Wheetley v. State, — S.W.3d —, 2014 Tenn. LEXIS 467 (Tenn. June 25, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 468 (Tenn. June 25, 2014).

57. —Subsequent Injuries Following Rehabilitation.

The policy allowing compensation in spite of a previous determination of permanent disability to the same member encourages rehabilitation and reemployment. Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

An employee who rehabilitates himself and returns to work rather than relying on public relief should not be penalized for his rehabilitation or discouraged from re-entry into the work force by the denial of benefits for subsequent injuries. Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

58. —Elemental Forces.

When an employee's work exposes him to an elemental force and requires him to continue to work under the risk of the hazard which the elemental force creates, the employee is to be compensated for injuries which result therefrom. Hodge v. Diamond Container General, Inc., 759 S.W.2d 659, 1988 Tenn. LEXIS 194 (Tenn. 1988).

It is foreseeable that when exposed to the hot sun or the freezing cold an employee suffers an injury therefrom. When the nature of the work requires exposure to the risk of this hazard, any injury resulting therefrom arises out of and in the course of the employment. Hodge v. Diamond Container General, Inc., 759 S.W.2d 659, 1988 Tenn. LEXIS 194 (Tenn. 1988).

59. —Heat Prostration, Sunstroke and Heat Exhaustion.

Heat prostration of a fireman in boiler room on an extremely hot day is compensable. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

Where it was shown without dispute that the employee while at his work in loading timber on a very hot July day fell and after a few minutes died, and that the employee was a strong, healthy, able-bodied man, the evidence made out a prima facie case of death from heat exhaustion, heat prostration or sunstroke. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

Death caused by heat prostration, sunstroke or heat exhaustion is compensable in this state. Anderson v. Volz Const. Co., 183 Tenn. 169, 191 S.W.2d 436, 1946 Tenn. LEXIS 197 (1946); Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948); T. J. Moss Tie Co. v. Rollins, 191 Tenn. 577, 235 S.W.2d 585, 1951 Tenn. LEXIS 361 (1951).

Death of employee was compensable where he died suddenly while engaged in loading crossties on a hot day where medical testimony established that cause of death was sunstroke. T. J. Moss Tie Co. v. Rollins, 191 Tenn. 577, 235 S.W.2d 585, 1951 Tenn. LEXIS 361 (1951).

60. —Frostbite and Freezing.

Where employee's work exposed him to the elemental force of freezing for long hours, frostbite resulting therefrom was compensable. Globe Co. Inc. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253, 1969 Tenn. LEXIS 387 (1969).

61. —Back Injuries.

Back injury claims are recognized as appropriate situations for applying gradual injury guidelines; however, while in some cases an employee's back injury has been found to have occurred gradually and not as the result of a specific incident, the court has never held that back injuries are always gradual injuries. Each case must be decided on its facts based upon the proof relating to causation. Mynatt v. Liberty Mut. Ins. Cos., 699 S.W.2d 799, 1985 Tenn. LEXIS 569 (Tenn. 1985).

62. —Hernia.

If, as result of a strain in lifting some heavy article for his employer, an employee dislocates his vertebrae, or breaks his wrist, or ruptures a blood vessel, it could not be seriously insisted that such unexpected injury was not accidental. If the strain or “stretching,” as petitioner terms his act, instead of causing one of the injuries just enumerated, produces a hernia, the occurrence is nonetheless accidental. Webster v. Lloyd A. Fry Roofing Co., 177 Tenn. 122, 146 S.W.2d 946, 1940 Tenn. LEXIS 18 (1941).

Where uncontradicted evidence was to the effect that deceased, a strong healthy man without previous evidence of hernia, engaged in very heavy work subjecting himself to strain in lifting heavy bars of iron, left his place of employment, walked one block to his home and there complained of pain in his side, went to bed and remained there for two days and that on the morning of the third day his employer's physician found him suffering from hernia, the inference was irresistible that deceased had received this injury while lifting the heavy bars and the trial court erred in holding that there was no evidence to show that deceased received an accidental injury arising out of and in the course of his employment. Riley v. Knoxville Iron Co., 178 Tenn. 107, 156 S.W.2d 398, 1941 Tenn. LEXIS 37 (1941).

63. —Mental Ailments and Nervous Conditions.

The word “injury” in the Workers' Compensation Law is broader than the mere reference to some objective physical break or wound to the body and includes the consequences therefrom such as mental ailments or nervous conditions. Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

An employee disabled by “traumatic or post-traumatic neurosis” precipitated by an accident arising out of and in the course of his employment is entitled to compensation under the Workers' Compensation Law. Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

Testimony of doctors and neighbors of muscle spasms and inability to walk or work is such substantial evidence of causation and permanent disability as to allow trial judge to award compensation where claimant alleges back injury. Bush Bros. & Co. v. Williams, 197 Tenn. 334, 273 S.W.2d 137, 1954 Tenn. LEXIS 491 (1954).

Traumatic or post-traumatic neurosis is an “injury” within the meaning of the act. McKenzie v. Campbell & Dann Mfg. Co., 209 Tenn. 475, 354 S.W.2d 440, 1962 Tenn. LEXIS 380 (1962).

Where the medical testimony gave no opinion as to the permanence of a present aggravated nervous condition, there was no evidence before the trial court from which a permanent impairment could be inferred. Minton v. Leonard, 219 Tenn. 642, 412 S.W.2d 886, 1967 Tenn. LEXIS 378 (1967).

Where there was testimony in the record by psychiatrist that employee suffered from chronic undifferentiated schizophrenia and that such condition disabled him from work, supreme court would not disturb trial court's finding to that effect even though on the basis of the entire record it might have reached a different conclusion. Gluck Bros., Inc. v. Pollard, 221 Tenn. 383, 426 S.W.2d 763, 1968 Tenn. LEXIS 471 (1968).

Mental or nervous illnesses are compensable when shown to be caused by an industrial, work-related accident. Jose v. Equifax, Inc., 556 S.W.2d 82, 1977 Tenn. LEXIS 609 (Tenn. 1977).

Where defendant's claim for workers' compensation benefits alleged that he sustained a “severe psychiatric illness” as a result of being placed under a tremendous amount of pressure and tension in order to meet his obligations to his employer, the complaint was dismissed for failure to state a claim due to its general, conclusory nature and lack of specificity. Jose v. Equifax, Inc., 556 S.W.2d 82, 1977 Tenn. LEXIS 609 (Tenn. 1977).

Trial court erred in awarding workers' compensation benefits for a mental injury to a worker who had been exposed to the blood of a co-worker whom she believed was HIV positive where she had not shown actual exposure to the virus through a medically recognized channel of transmission and five HIV tests had been performed on her and all were negative. The Supreme Court of Tennessee is unwilling to award workers' compensation disability benefits to a claimant who suffers from an irrational fear of exposure to HIV when there is no proof of actual exposure via a medically recognized channel of transmission. Guess v. Sharp Mfg. Co. of Am., 114 S.W.3d 480, 2003 Tenn. LEXIS 722 (Tenn. 2003).

Trial court had not erred in concluding that a claimant had not suffered a cognitive impairment due to a work related accident because she had not asserted that she had sustained a closed head injury until her attorney referred her for psychological testing almost three years after the accident. And, the court found “a huge void” in the medical evidence between the time that she received treatment from the neurologist and the time that she was referred for psychological testing. Layman v. Vanguard Contrs., 183 S.W.3d 310, 2006 Tenn. LEXIS 5 (Tenn. 2006).

64. —Emotional Stress.

Worry, anxiety or emotional stress of a general nature are not in and of themselves sufficient to establish an accident. Emotional stress, to some degree, accompanies the performance of any contract of employment; when this is within the bounds of the ups and downs of emotional normal human experience, courts frequently decline to impose liability upon employers for conditions resulting from cumulated strain. Henley v. Roadway Express, 699 S.W.2d 150, 1985 Tenn. LEXIS 561 (Tenn. 1985).

For a mental injury by accident or occupational disease to arise out of employment, it must be caused by an identifiable stressful, work-related event producing a sudden mental stimulus such as fright, shock or excessive unexpected anxiety, and therefore it may not be gradual employment stress building up over a period of time. In addition, the stress produced may not be usual stress, but must be extraordinary and unusual in comparison to the stress ordinarily experienced by an employee in the same type duty. Gatlin v. Knoxville, 822 S.W.2d 587, 1991 Tenn. LEXIS 511 (Tenn. 1991).

Where plaintiff suffered an acute, sudden, or unexpected emotional stress, there was an injury by accident. Jones v. Hartford Acci. & Indem. Co., 811 S.W.2d 516, 1991 Tenn. LEXIS 195 (Tenn. 1991).

Even if incident where employee was informed by her supervisor that she was probably going to be fired caused employee's mental breakdown, the employee's mental injury was not compensable. Goodloe v. State, 36 S.W.3d 62, 2001 Tenn. LEXIS 53 (Tenn. 2001).

Post-traumatic stress disorder (PTSD) can, in some circumstances, be a compensable workers' compensation injury. Guess v. Sharp Mfg. Co. of Am., 114 S.W.3d 480, 2003 Tenn. LEXIS 722 (Tenn. 2003).

65. —Poisoning.

Death of person employed to remove trolley lines and steel rails from coal mines as result of arsenic poisoning was not compensable where expert evidence showed that amount of arsenic from copper wiring handled by deceased in mines was not in sufficient quantity to have caused arsenic poisoning. Smith v. Fentress Coal & Coke Co., 188 Tenn. 656, 222 S.W.2d 3, 1949 Tenn. LEXIS 386 (1949).

66. —Diseases.

Disease caused by breathing dust in work of moving sacks containing chemicals was not compensable. Meade Fiber Corp. v. Starnes, 147 Tenn. 362, 247 S.W. 989, 1922 Tenn. LEXIS 48 (1923). But see part 3 of this chapter.

Despite conflict in testimony of medical experts, pyelitis held to have been caused by injury to employee's back seven weeks previously. Vester Gas Range & Mfg. Co. v. Leonard, 148 Tenn. 665, 257 S.W. 395, 1923 Tenn. LEXIS 53 (1923).

Pneumonia from which employee died four days after heat prostration, which was the moving, exciting or contributing cause of the pneumonia, held to have naturally resulted from such injury. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

Whenever an injury by accident can be said to have been the moving, exciting or contributing cause of a resulting disease, such disease “naturally resulted” from the injury; and it is wholly immaterial whether such disease often or usually results from similar injuries. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

An accidental injury may be occasioned by squeezing a pimple resulting in infection with a disease communicated by a horse, cared for by the employee, to his fingers. Hartford Acci. & Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904, 1928 Tenn. LEXIS 76 (1929).

In order for a disease to be referable to an accidental injury, its inception must be assignable to a determinate, single occurrence, identified in time and space. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931); Gabbard v. Proctor & Gamble Defense Corp., 184 Tenn. 464, 201 S.W.2d 651, 1947 Tenn. LEXIS 398 (1947). But see part 3 of this chapter.

If an employee suffers from a disease at all, occupational or otherwise, he has no recourse under this act unless the disease naturally results from an accidental injury. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931); Gabbard v. Proctor & Gamble Defense Corp., 184 Tenn. 464, 201 S.W.2d 651, 1947 Tenn. LEXIS 398 (1947). But see part 3 of this chapter.

Since the cause of cancer is purely speculative, it could not be said that deceased employee died of cancer caused by a blow on the breast while working. McBrayer v. Dixie Mercerizing Co., 178 Tenn. 135, 156 S.W.2d 408, 1941 Tenn. LEXIS 41 (1941).

Loss of eye held to be result of disease and not accident. Craig v. Marquette Cement Mfg. Co., 190 Tenn. 234, 229 S.W.2d 148, 1950 Tenn. LEXIS 473 (1950).

Acts 1947, ch. 139, compiled in this section and in parts 2 and 3 of this chapter, did not limit compensation to specified occupational diseases if the disability from the disease is the result of an injury arising out of and in the course of employment. Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

Death by apoplexy while carrying light rope was not compensable since sudden death was not due to exertion but to progress of disease. Wilhart v. L. A. Warlick Const. Co., 195 Tenn. 344, 259 S.W.2d 655, 1953 Tenn. LEXIS 347 (1953).

Spondylolisthesis is a disability capable of supporting an award under the Workers' Compensation Act since such disability, in addition to being congenital, may result from trauma. E. I. Dupont De Nemours & Co. v. Friar, 218 Tenn. 554, 404 S.W.2d 518, 1966 Tenn. LEXIS 588 (1966).

Occupational diseases are embraced within the terms “injury” and “personal injury.” Wittenbarger v. Carr Co., 557 S.W.2d 65, 1977 Tenn. LEXIS 670 (Tenn. 1977).

The death of an employee who dies in the course of his employment by reason of a heart attack, although suffering from a previous heart disease, is covered under the Workers' Compensation Act even if the result was produced only by ordinary exertion and usual strain of the work. Cortrim Mfg. Co. v. Smith, 570 S.W.2d 854, 1978 Tenn. LEXIS 636 (Tenn. 1978).

An injury by accident is not separate from an occupational disease in terms of legal analysis because they both fall within the statutory definition of injury. Gatlin v. Knoxville, 822 S.W.2d 587, 1991 Tenn. LEXIS 511 (Tenn. 1991).

Where police officer's heart attack was not immediately precipitated by a specific acute or sudden stressful event, the trial court's finding of compensability was reversed. Benton v. City of Springfield, 973 S.W.2d 936, 1998 Tenn. LEXIS 351 (Tenn. 1998).

Employee was entitled to workers' compensation benefits because the employee developed a lung condition as a consequence of the employee's exposure at work to grain dust that was produced by a grain facility adjacent to the employer's workplace. Plotner v. Metal Prep, — S.W.3d —, 2014 Tenn. LEXIS 677 (Tenn. Sept. 29, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 679 (Tenn. Sept. 29, 2014).

67. —Permanent Disfigurement.

Permanent disfigurement is an injury covered by workers' compensation, even if it is not disabling. Clayton v. Pizza Hut, Inc., 673 S.W.2d 144, 1984 Tenn. LEXIS 820 (Tenn. 1984).

68. —Scarring.

Claimant did suffer a compensable injury which arose out of the employment, occurred in the course of employment and caused disablement despite her employer's assertion that her claim should be denied because it was the result of a mere episode of pain resulting from scar tissue which had accumulated as a result of two previous surgeries, did not constitute a new injury and did not advance the severity of her preexisting condition. Fink v. Caudle, 856 S.W.2d 952, 1993 Tenn. LEXIS 378 (Tenn. 1993).

69. —Averment of Employee — Effect.

An employee is bound by his own averment that his employer's physician was of the opinion that his injury was only a back strain that would readily yield to treatment. Netherland v. Mead Corp., 170 Tenn. 520, 98 S.W.2d 76, 1936 Tenn. LEXIS 23 (1936).

70. —Statements in Employment Application.

Three factors must be present before a false statement in an employment application will bar recovery of workers' compensation benefits. First, the employee must have knowingly and willfully made a false representation as to his physical condition. Second, the employer must have relied upon a false representation and this reliance must have been a substantial factor in the hiring. Third, there must have been a causal connection between the false representation and the injury. The causal connection required is a factual showing that the injury upon which the workers' compensation claim is based is causally related to the employee's prior injuries or physical condition which were wrongfully concealed from the employer. Except in the most obvious cases, such causation must be established by expert medical testimony. Quaker Oats Co. v. Smith, 574 S.W.2d 45, 1978 Tenn. LEXIS 675 (Tenn. 1978).

Although the employer insisted that the employee misrepresented her physical condition in making application for employment, and, consequently, could not recover workers' compensation benefits, where evidence that the employee had not had any “back trouble” for several years before her employment supported a finding that the employee did not knowingly or willfully misrepresent her physical condition in making application for employment, and evidence that the employee was required to undergo a pre-employment physical examination by the employer, which revealed no “back trouble,” supported a finding that the employer did not rely solely on the medical history given by the employee in making application for employment, but relied on the medical examination, there was support for the chancellor's finding that the employee was entitled to receive benefits. Quaker Oats Co. v. Smith, 574 S.W.2d 45, 1978 Tenn. LEXIS 675 (Tenn. 1978).

71. —Evidence.

Where employee was found dead in badly ventilated mine where he had been doing heavy manual labor, and doctor testified in workers' compensation trial for death benefits that such air and labor would be contributing causes of death from predisposed heart trouble, although laymen testified he looked healthy, there was sufficient substantial evidence to uphold trial judge's award of compensation. Heron v. Girdley, 198 Tenn. 110, 277 S.W.2d 402, 1955 Tenn. LEXIS 341 (1955).

Medical testimony that it “is possible” or “could be responsible” is not alone sufficient on which to predicate a finding of a causal connection between the accident and the injury for which compensation is sought. Mason & Dixon Lines, Inc. v. Gregory, 206 Tenn. 525, 334 S.W.2d 939, 1960 Tenn. LEXIS 390 (1959).

Where preponderance of proof showed plaintiff's intestate's death resulted from deterioration of the body caused by multiple diseases, the fact that driving a tractor-trailer rig may have been a strain on the body was not sufficient to make out a case or liability under Tennessee's Workers' Compensation Act. Kirby v. Dance Freight Lines, 226 F. Supp. 947, 1964 U.S. Dist. LEXIS 6452 (E.D. Tenn. 1964).

Lay testimony is competent to establish simple but important matters such as the existence of pain, its location, inability to work and the like, but it may not be received and relied on to prove matters requiring scientific knowledge. American Enka Corp. v. Sutton, 216 Tenn. 228, 391 S.W.2d 643, 1965 Tenn. LEXIS 573 (1965).

Evidence was sufficient to support the finding that the employee was disabled as a result of coal worker's pneumoconiosis rather than the heart disease from which the employee also suffered. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

In a workers' compensation proceeding for total permanent disability benefits for coal worker's pneumoconiosis, the trial court properly excluded from evidence an application and supporting data submitted by the employee, a coal miner, to the United States department of labor in an effort to obtain black lung benefits under federal statutes where the evidence was offered, not for the purpose of impeaching the employee's testimony or to show a prior inconsistent statement on his part or that of any other witness, but as substantive evidence that the employee had not sustained total disability as a result of pneumoconiosis. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

Where the employee's testimony describing his symptoms and complaints, in general, was admissible, although he was not qualified to testify as to the medical reasons or cause of these, any error of the trial court in not formally striking portions of his testimony from the record was harmless and did not affect the outcome of the case, since the hearing was nonjury and before an experienced chancellor, who was clearly able to eliminate any incompetent evidence from consideration in reaching his decision. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

A state court, although applying federal standards and criteria, such as are set forth in federal regulations, should make an independent determination of the employee's entitlement to compensation, and it may consider any competent evidence presented on that issue by either party. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

The trial court did not err in overruling an objection to a hypothetical question as to whether, assuming that the employee was setting up machinery, which involved a tremendous amount of bending, stooping, stretching and reaching, such exertion could have contributed to the employee's fatal heart attack, where the record indicated that adjusting wood-working machines, which is what the employee was engaged in, did consist of such activity and, moreover, the employer had the opportunity to restate the hypothetical question on cross-examination or frame other questions of his own to point out deficiencies in the question posed by the claimant. Cortrim Mfg. Co. v. Smith, 570 S.W.2d 854, 1978 Tenn. LEXIS 636 (Tenn. 1978).

Where there was direct evidence that prior to his fatal heart attack a part-time high school custodian had moved desks and swept one aisle in the room where his body was found, and there was medical testimony that the exertion required of the custodian could be enough to produce a heart attack, the finding of the chancellor that there was a causal connection between the custodian's activities at work and his fatal heart attack was supported by the evidence, and the supreme court was bound by it. Shelby Mut. Ins. Co. v. Dudley, 574 S.W.2d 43, 1978 Tenn. LEXIS 674 (Tenn. 1978).

In “causal connection” cases, facts and circumstances revealed by lay testimony may often have relevancy upon the ultimate determination of that issue, and therefore it is not exclusively within the realm of medical science. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

The trial judge is not bound to accept physicians' opinions of the extent of the employee's disability, but is entitled to determine the extent of disability from all of the evidence, both expert and nonexpert. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 1983 Tenn. LEXIS 690 (Tenn. 1983).

The preponderance of the evidence established that plaintiff did not injure his chest while at work and that his pulmonary problems for which he was hospitalized were caused by his sickle-cell disease. Sheffield v. Schneider Services Int'l, Inc., 800 S.W.2d 174, 1990 Tenn. LEXIS 432 (Tenn. 1990).

Where the employee testified that she was injured while flipping a piece of wood and the medical records reflected her doctor's opinion that her back condition was work-related, the evidence was sufficient to establish a causal relationship between the employee's work activities and her back injury. Glisson v. Mohon Int'l, Inc., 185 S.W.3d 348, 2006 Tenn. LEXIS 180 (Tenn. 2006).

72. —Burden of Proof.

The plaintiff in a workers' compensation suit, and all civil actions generally, has the burden of proving his case “in all its parts” by a preponderance of the evidence. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

73. — —Circumstantial Evidence.

Accidental death within the Workers' Compensation Law is provable by circumstantial evidence just as any other fact may be proven. Riley v. Knoxville Iron Co., 178 Tenn. 107, 156 S.W.2d 398, 1941 Tenn. LEXIS 37 (1941); Heron v. Girdley, 198 Tenn. 110, 277 S.W.2d 402, 1955 Tenn. LEXIS 341 (1955).

Compensable injury may be shown by circumstantial evidence, but the circumstances relied on must be sufficient to make out a prima facie case and at least take it out of the realm of speculation. Smith v. Fentress Coal & Coke Co., 188 Tenn. 656, 222 S.W.2d 3, 1949 Tenn. LEXIS 386 (1949).

An expert is not required to testify that trauma is the cause of employee's disability but it is sufficient if the expert testifies that trauma could or might be the cause of the disability in determining issue whether trauma or disease is the cause of the disability sustained. Benjamin F. Shaw Co. v. Musgrave, 189 Tenn. 1, 222 S.W.2d 22, 1949 Tenn. LEXIS 394 (1949).

The fact of accident may be established not only by direct evidence but as well by circumstances reasonably leading to an inference that an accident occurred. Railway Express Agency, Inc. v. Clark, 194 F.2d 29, 1952 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1952).

Complaint for compensation which alleged that plaintiff was injured as result of fall did not bar expert testimony that fall aggravated a preexisting disease, hence exclusion of expert testimony by trial court was prejudicial error. Ledford v. Miller Bros. Co., 194 Tenn. 467, 253 S.W.2d 552, 1952 Tenn. LEXIS 405 (1952).

Finding a person dead at his post of duty does not alone raise a prima facie case for compensation, but where physical exertion is also proven a prima facie case may, depending on circumstances, be made out that death was due to an accident arising out of, and in the course of employment. Heron v. Girdley, 198 Tenn. 110, 277 S.W.2d 402, 1955 Tenn. LEXIS 341 (1955).

74. — —Expert Testimony.

Where the cause of an existing condition or injury is in dispute, an expert's opinion may be admitted to the effect that a certain cause could or might produce the condition, but to permit him to testify as to what in his opinion probably did produce it would be error. Sanders v. Blue Ridge Glass Corp., 161 Tenn. 535, 33 S.W.2d 84, 1930 Tenn. LEXIS 40 (1930).

Where previously healthy claimant suffered heart attack while engaged in hot, heavy work, and attendant doctor testified that there was a causal relationship, there was sufficient evidence that the injury arose out of employment. Powers v. Beasley, 197 Tenn. 549, 276 S.W.2d 720, 1955 Tenn. LEXIS 315 (1955).

Optometrist's testimony that prior to accidental splashing of acid into his right eye claimant had 20-20 vision, and after the accident had 20-400 vision therein, was valuable in measuring the sight before and after the accident; however, since his training was not in diseases of the eye, his testimony could not be considered material evidence to support award to claimant for loss of eyesight. American Enka Corp. v. Sutton, 216 Tenn. 228, 391 S.W.2d 643, 1965 Tenn. LEXIS 573 (1965).

Where both an optometrist and workers' compensation claimant testified that splashing of acid in claimant's right eye caused loss of vision, but a specialist in ophthalmology testified that there was no possible connection between the accident and optic neuritis which caused the loss of vision, the evidence failed to support award for loss of use of the eye. American Enka Corp. v. Sutton, 216 Tenn. 228, 391 S.W.2d 643, 1965 Tenn. LEXIS 573 (1965).

Where expert witness testified that employee's work could have been a contributing factor to employee's stroke, there was sufficient evidence to establish a connection between the work and the stroke, and to support a claim for compensation, even though employee was suffering from arteriosclerosis. Forest Products v. Parvin, 532 S.W.2d 908, 1975 Tenn. LEXIS 613 (Tenn. 1975).

Where the physician who testified on the issue of permanence of disability performed several physical examinations, some of which revealed objective signs of injury and treated plaintiff for several months, the fact that he noted no objective signs of back injury on several examinations of plaintiff did not per se destroy the probative value of his testimony. Travelers Ins. Co. v. Flatford, 551 S.W.2d 695, 1977 Tenn. LEXIS 532 (Tenn. 1977).

Where the physician who testified on the issue of permanence of disability was not sure whether the back injury was to a disc or was an acute lumbar strain and the only way to resolve the doubt was to perform an operation which might increase the injury to plaintiff, the court found his testimony sufficient to support a finding for plaintiff. Travelers Ins. Co. v. Flatford, 551 S.W.2d 695, 1977 Tenn. LEXIS 532 (Tenn. 1977).

A trial judge may properly predicate an award on medical testimony to the effect that a given incident “could be” the cause of the plaintiff's injury, when he also has before him lay testimony from which it may reasonably be inferred that the incident was in fact the cause of the injury. P & L Constr. Co. v. Lankford, 559 S.W.2d 793, 1978 Tenn. LEXIS 702 (Tenn. 1978); Cortrim Mfg. Co. v. Smith, 570 S.W.2d 854, 1978 Tenn. LEXIS 636 (Tenn. 1978).

Although the greater number of witnesses were of the opinion that there was no causal connection between the accident and the subsequent optic neuritis, it was within the discretion of the trial judge to conclude that the opinion of one expert should be accepted over those of the other experts and that it contained the most probable explanation. Combustion Engineering, Inc. v. Kennedy, 562 S.W.2d 202, 1978 Tenn. LEXIS 585 (Tenn. 1978).

Testimony of employee and other lay witnesses who first establish a proper factual foundation is admissible on issue of employee's inability to work and may be sufficient to establish that fact without expert medical testimony. Simpson v. Satterfield, 564 S.W.2d 953, 1978 Tenn. LEXIS 543 (Tenn. 1978).

No expert medical testimony is required to show the causal connection between an employee's injury and his inability to work where the nature of the injury and the result produced thereby, as testified to by lay witnesses, makes evident to the lay mind, based upon the common knowledge and experience of mankind, that the causal connection exists. Simpson v. Satterfield, 564 S.W.2d 953, 1978 Tenn. LEXIS 543 (Tenn. 1978).

When causal connection and permanency of the injury have been established by expert medical testimony, the trial judge is not bound to accept the doctors' opinions of the extent of the employee's disability. Trane Co. v. Morrison, 566 S.W.2d 849, 1978 Tenn. LEXIS 557 (Tenn. 1978).

A plaintiff must establish the permanency of his disability by a preponderance of the evidence which must be accomplished through expert medical testimony. A fortiori, any expert medical witness presented must give testimony that preponderates in favor of permanency to qualify as having probative value on that issue. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

The determination of the issue of permanency of all but the most obvious injuries, such as loss of a member, is peculiarly within the realm of scientific knowledge. Thus, an award of permanent partial disability for an injury must be supported by expert medical testimony that the resulting condition is permanent. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

Where employee sought compensation for permanent partial disability to his foot, the doctor's testimony that permanent disability was “just a possibility” and that chances were 40 percent for and 60 percent against permanency clearly failed to preponderate in favor of permanency. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

75. — —“Rule of Reasonable Inference.”

Under the “rule of reasonable inference,” where from the medical testimony, two inferences could be drawn and the medical testimony more strongly supports one of them, as a matter of law the court is authorized to adopt the stronger inference. Howell v. Charles H. Bacon Co., 98 F. Supp. 567, 1951 U.S. Dist. LEXIS 2266 (D. Tenn. 1951), aff'd, 197 F.2d 333, 1952 U.S. App. LEXIS 2625 (6th Cir. Tenn. 1952).

No prima facie case that workers' compensation claimant was killed in course of employment is made out, where night clerk of flop house was found during working hours murdered by persons and for reasons unknown; since where employee is found at post during customary hours and there is no direct evidence of manner of his death, inference may arise that it was in course of employment, but if facts indicate more than one reasonable inference as to cause of death, the rule does not apply. Reed v. Langford, 197 Tenn. 587, 276 S.W.2d 735, 1955 Tenn. LEXIS 322 (1955).

76. — —Statement in Death Certificate — Effect.

A statement in a death certificate that death was “due to probable heart attack” was insufficient, in an action for workers' compensation, to overcome the inference that the employee, an able-bodied, healthy man who collapsed and died while loading timber on a very hot day, died of heat prostration. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

77. —Presumptions Resolved in Favor of Employee.

Where, in the course of and arising out of his employment, an employee in good health and of strong physique suffers physical injury which is followed by serious disabilities, and competent physicians differ as to whether the disabilities are attributable to the injury, but only probable or conjectural reasons or causes are assigned by the physicians in an effort to explain the disabilities on grounds other than the injury, the presumptions should be resolved in favor of the employee rather than against him. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

Award cannot be based solely on medical experts' testimony that accident possibly could cause injury, but it may be if there is other evidence to reasonably infer such result. Lynch v. La Rue, 198 Tenn. 101, 278 S.W.2d 85, 1955 Tenn. LEXIS 351 (1955).

78. —Previous Recovery from Another Employer — Effect.

For law on subsequent injuries, see § 50-6-208.

Recovery from a former employer for permanent loss of an eye does not preclude recovery for the loss of that member against a subsequent employer eight years later. Claimant may show that he and the former employer were mistaken as to such loss, as demonstrated by the event. Loss of an eye not wholly useless is within the schedule of award for loss of an eye. Williams v. S. & W. Const. Co., 167 Tenn. 84, 66 S.W.2d 992, 1933 Tenn. LEXIS 8 (1934).

That the claimant had received compensation for permanent and total loss of the same eye from a previous employer eight years before accident relied upon is competent as tending to show whether the claimant has such an eye to lose. Williams v. S. & W. Const. Co., 167 Tenn. 84, 66 S.W.2d 992, 1933 Tenn. LEXIS 8 (1934).

79. Arising out of and in Course of Employment.

The test of compensable injury is one of contract and not conduct. If the employee is doing that which by his contract, either expressly or by implication is made his duty, he is in the course of his employment, however negligent his conduct may be. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924).

An accident arises “in course of employment” if it occurs while employee is doing what a man so employed may reasonably do in the time during which he is reasonably employed and at a place where he may reasonably be during that time. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928).

An accident arises in course of employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be done and the resultant injury. Chamber of Commerce v. Turner, 158 Tenn. 323, 13 S.W.2d 318, 1928 Tenn. LEXIS 156 (1929); Porter v. Travelers' Ins. Co., 163 Tenn. 526, 43 S.W.2d 1066, 1931 Tenn. LEXIS 144 (1931); Jellico Grocery Co. v. Hendrickson, 172 Tenn. 148, 110 S.W.2d 333, 1937 Tenn. LEXIS 64 (1937); Whaley v. Patent Button Co., 184 Tenn. 700, 202 S.W.2d 649, 1947 Tenn. LEXIS 291 (1947); Davis v. Wabash Screen Door Co., 185 Tenn. 169, 204 S.W.2d 87, 1947 Tenn. LEXIS 316 (1947); Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977, 1951 Tenn. LEXIS 374 (1951); Fink v. Caudle, 856 S.W.2d 952, 1993 Tenn. LEXIS 378 (Tenn. 1993).

In order for an injury to arise out of the course of employment within the meaning of the statute there must exist a causal connection between the conditions of employment and the resulting injury so that it will appear that such injury resulted from a peculiar condition or danger to which the employment exposed the worker. Scott v. Shinn, 171 Tenn. 478, 105 S.W.2d 103, 1937 Tenn. LEXIS 127 (1937); Toombs v. Liberty Mut. Ins. Co., 173 Tenn. 38, 114 S.W.2d 785, 1937 Tenn. LEXIS 10 (1938).

An injury arises out of the employment where there is a causal connection between the injury and the employment. Jellico Grocery Co. v. Hendrickson, 172 Tenn. 148, 110 S.W.2d 333, 1937 Tenn. LEXIS 64 (1937); Employers' Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837, 1937 Tenn. LEXIS 89 (1938); Toombs v. Liberty Mut. Ins. Co., 173 Tenn. 38, 114 S.W.2d 785, 1937 Tenn. LEXIS 10 (1938).

The term “in the course of employment” refers to the time, place and circumstances under which the injury occurred. Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804, 1937 Tenn. LEXIS 16 (1938).

If the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of” the employment. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and have flowed from that source as a rational consequence. Davis v. Wabash Screen Door Co., 185 Tenn. 169, 204 S.W.2d 87, 1947 Tenn. LEXIS 316 (1947).

Mere presence at a place where injury takes place is not sufficient to make injury compensable unless injury is related to the employment. Thornton v. RCA Service Co., 188 Tenn. 644, 221 S.W.2d 954, 1949 Tenn. LEXIS 384 (1949).

An injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work was required to be performed and the resulting injury. T. J. Moss Tie Co. v. Rollins, 191 Tenn. 577, 235 S.W.2d 585, 1951 Tenn. LEXIS 361 (1951); Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

Injury, in order to be considered as arising out of employment under Workers' Compensation Law, must result from a danger peculiar to the work and not common to the neighborhood and an injury purely coincidental, or contemporaneous, or collateral, with the employment will not cause the injury to be considered as arising out of the employment. Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389, 1954 Tenn. LEXIS 464 (1954).

In order to be compensable the injury suffered by the employee must arise out of and in the course of his employment. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965).

Where deceased had left his place of employment and had gone to his apartment on the same premises for rest or association with his family and had retired when fatal heart attack occurred, relationship of master and servant was suspended and injury did not arise out of or in course of his employment where there was no proof of an injury or accident connected with his work to which heart attack could be related. Travelers Ins. Co. v. Googe, 217 Tenn. 272, 397 S.W.2d 368, 1965 Tenn. LEXIS 543 (1965); Bowman v. Smith-Built Homes, Inc., 221 Tenn. 102, 424 S.W.2d 801, 1967 Tenn. LEXIS 358 (1967).

An injury by accident to an employee is “in the course of” employment if it occurred while he was performing a duty he was employed to do and it is an injury “arising out of” employment if caused by a hazard incident to such employment. Travelers Ins. Co. v. Googe, 217 Tenn. 272, 397 S.W.2d 368, 1965 Tenn. LEXIS 543 (1965); Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968); Williams v. Preferred Development Corp., 224 Tenn. 174, 452 S.W.2d 344, 1970 Tenn. LEXIS 310 (1970).

Mere presence of an employee at the place of injury because of employment will not alone result in the injury being considered as arising out of employment and if the injury or death resulted from an exposure which is no more or different from that of any other member of the public similarly situated in place and time it is not compensable. Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765, 1966 Tenn. LEXIS 617, 1966 Tenn. LEXIS 618 (1966), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

An employer is not liable for workers' compensation benefits to an employee who is injured in an attempt to rescue a stranger, under circumstances in which the employer has no pecuniary or proprietary interest in the rescue as such and no responsibility for creating the danger out of which the rescue attempt arose. Lennon Co. v. Ridge, 219 Tenn. 623, 412 S.W.2d 638, 1967 Tenn. LEXIS 453 (1967).

The mere presence of an employee at the place of injury because of employment will not result in the injury being considered as arising out of the employment. Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968).

The fact that employee was on job site at time of death by heart attack was not in and of itself determinative of the question of whether death arose out of and in the course of his employment. Chapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 426 S.W.2d 760, 1968 Tenn. LEXIS 470 (1968).

Where an employee becomes helpless in the course of employment due to illness or other cause not related to his employment, is in dire need of medical attention or other assistance in order to prevent further injury and the employer has the ability to make such medical attention or other assistance available but does not do so, the disability which results from this failure of the employer is to be considered as having arisen out of and in the course of employment; however, an employer is not required to force medical treatment upon an unwilling employee who is conscious and rational at the time. Vanderbilt University v. Russell, 556 S.W.2d 230, 1977 Tenn. LEXIS 612 (Tenn. 1977).

In determining whether an accident arose out of and in the course of the employment, each case must be decided with respect to its own attendant circumstances and not by resort to some formula. Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

Accident and injury were found to have arisen out of and in the course of the employment of the employee. Wellington v. John Morrell & Co., 619 S.W.2d 116, 1981 Tenn. LEXIS 461 (Tenn. 1981).

An injury arises out of and in the course of employment if it has a rational causal connection to the work and occurs while the employee is engaged in the duties of his employment, and any reasonable doubt as to whether an injury arose out of the employment or not is to be resolved in favor of the employee. Hall v. Auburntown Industries, Inc., 684 S.W.2d 614, 1985 Tenn. LEXIS 468 (Tenn. 1985).

If, because of the nature of the work, there is a special risk of exposure, beyond that incurred by the general public, to criminal attacks or to the violence of the elements, the injury is one arising out of the employment. Hall v. Auburntown Industries, Inc., 684 S.W.2d 614, 1985 Tenn. LEXIS 468 (Tenn. 1985).

The mere presence of an employee at the place of injury because of his employment will not alone result in the injury being considered as arising out of the employment; the injury must be occasioned by and must “arise out of” the employment as well as “in the course of” employment. Jordan v. United Methodist Urban Ministries, Inc., 740 S.W.2d 411, 1987 Tenn. LEXIS 1012 (Tenn. 1987).

Plaintiff's medical problems did not arise out of and in the course of his employment. La-Z-Boy Chair Co. v. Reed, 778 F. Supp. 954, 1990 U.S. Dist. LEXIS 19446 (E.D. Tenn. 1990), aff'd, 936 F.2d 573, 1991 U.S. App. LEXIS 19988 (6th Cir. Tenn. 1991).

“In the course of employment,” for plant employees having a fixed time to clock in, embraces a reasonable interval before and after actual working hours while the employee is on the premises engaged in preparatory or incidental acts. Carter v. Volunteer Apparel, Inc., 833 S.W.2d 492, 1992 Tenn. LEXIS 309 (Tenn. 1992).

Employee security guard's death did not arise from generalized employment condition but rather from something beyond the norm even for a security guard, where individuals whom security guard chased from the property not only regularly confronted the guard verbally, but also threatened to return and kill him. Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 2001 Tenn. LEXIS 140 (Tenn. 2001), rehearing denied, Cunningham v. Shelton Sec. Serv., Inc. , — S.W.3d —, 2001 Tenn. LEXIS 381 (Tenn. 2001).

The mere presence of an employee at the place of injury because of employment is not sufficient to establish entitlement to worker's compensation, as the injury must result from a danger or hazard peculiar to the work or be caused by a risk inherent in the nature of the work. Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 2001 Tenn. LEXIS 140 (Tenn. 2001), rehearing denied, Cunningham v. Shelton Sec. Serv., Inc. , — S.W.3d —, 2001 Tenn. LEXIS 381 (Tenn. 2001).

Trial court properly denied an employee workers' compensation benefits under T.C.A. § 50-6-102 as her injury did not result from a danger or hazard peculiar to her work; rather, it occurred while she was undertaking a voluntary test as part of the application process for a job she did not have and may not have gotten even if she passed the test. This case fell within the rule that an injury which is merely coincidental, contemporaneous, or collateral with the employment is not compensable. Blankenship v. Am. Ordnance Sys., LLC, 164 S.W.3d 350, 2005 Tenn. LEXIS 401 (Tenn. 2005).

Where the employee of a nursing home was injured in an automobile accident while traveling to a training facility, the accident arose out of and was in the course of her employment within the meaning of T.C.A. § 50-6-102. This trip fell within the “special errand or mission” exception because it was a special assignment at the direction of the employer. Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 2006 Tenn. LEXIS 301 (Tenn. 2006).

80. —Evidence.

Where there was evidence that petitioner was struck across his lower back by a plank knocking him to the ground and doctor testified that the injury caused the herniated disc, evidence was sufficient to support finding of trial court that employee's herniated disc was the result of an accident arising out of and in the course of employment. Atlas Powder Co. v. Grimes, 200 Tenn. 206, 292 S.W.2d 13, 1956 Tenn. LEXIS 397 (1956).

If there is any conflict in the evidence as to whether an accident arose out of and within the course of employment or in the inferences to be drawn therefrom, or if the evidence is undisputed but the minds of reasonable men may draw different conclusions from the same, it cannot be stated that a pure question of law is presented but rather a question of fact. Volz v. Southerland, 200 Tenn. 344, 292 S.W.2d 385, 1956 Tenn. LEXIS 416 (1956).

The burden rests upon the employee to show a causal connection between his injury and his employment but by causal connection is meant not proximate cause as used in the law of negligence but cause in the sense that the accident had its origin in the hazards to which the employment exposed the employee in doing the work. Volz v. Southerland, 200 Tenn. 344, 292 S.W.2d 385, 1956 Tenn. LEXIS 416 (1956); White v. Whiteway Pharmacy, Inc., 210 Tenn. 449, 360 S.W.2d 12, 1962 Tenn. LEXIS 306 (1962).

Evidence sustained finding of trial court that construction employee whose death resulted from burns suffered when he overturned bucket containing waste and diesel oil which he had lighted to keep warm in ditch where he was working died as a result of an accident arising out of and in the course of his employment. Volz v. Southerland, 200 Tenn. 344, 292 S.W.2d 385, 1956 Tenn. LEXIS 416 (1956).

Where traveling salesman operated under rule by which the salesman remained in the territory in which they were operating until the job was completed unless it would be less expensive for them to return to headquarters and in the particular instance such salesman was more than a hundred miles from the headquarters and he was not told to return home, death of such salesman resulting from automobile accident which occurred while traveling to his home over the weekend did not arise out of and in the course of his employment. Timmerman v. Kerr Glass Mfg. Co., 203 Tenn. 543, 314 S.W.2d 31, 1958 Tenn. LEXIS 329 (1958).

Evidence sustained trial court's finding that work which decedent had done on the day of his death following his period of rest at the dispensary contributed to onset of fatal heart attack and thus his death arose out of his employment. Aetna Casualty & Surety Co. v. Johnson, 278 F.2d 200, 1960 U.S. App. LEXIS 4678 (6th Cir. Tenn. 1960).

Burden is on the claimant to establish that the injury or death arose out of and in the course of the employment. Gridley v. Liberty Mut. Ins. Co., 208 Tenn. 124, 344 S.W.2d 356, 1961 Tenn. LEXIS 403 (1961).

Evidence to the effect that employee left his automobile and deliberately ran 30 feet and placed his body beneath a moving train sustained the finding of the trial judge that employee's death resulted from suicide and did not arise out of and in the course of his employment as sales manager. Gridley v. Liberty Mut. Ins. Co., 208 Tenn. 124, 344 S.W.2d 356, 1961 Tenn. LEXIS 403 (1961).

Injury to policeman during off-duty hours occurring as a result of an offense committed in his presence was compensable where policemen were obligated to make such arrests. Gallatin v. Anderson, 209 Tenn. 392, 354 S.W.2d 84, 1962 Tenn. LEXIS 369 (1962).

From evidence which established that a pot attendant for an aluminum company had a diseased heart when he began work on the day of his heart attack, the court found as a fact that exertion of his work either aggravated the heart condition or his physical disability, or caused the attack which resulted in his death; therefore, the deceased sustained an accident arising out of and in the course of his employment. Blair v. Aluminum Co. of America, 217 F. Supp. 471, 1962 U.S. Dist. LEXIS 3077 (E.D. Tenn. 1962).

If there was a causal connection between deceased's heart attack and his work, then his disability and death resulted from an accident that arose out of and in the course of his employment. Blair v. Aluminum Co. of America, 217 F. Supp. 471, 1962 U.S. Dist. LEXIS 3077 (E.D. Tenn. 1962).

“Arising out of” and “in the course of” are but facets of the single question of whether the injury was accidental and work-connected. Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964).

Evidence that employee suffered heart attack shortly after he returned from lunch hour during which he had mowed lawn on hot day and became ill shortly after return would not support finding of causal connection between injury and employment. Cas Walker's Cash Stores, Inc. v. Livesay, 215 Tenn. 306, 385 S.W.2d 745, 1965 Tenn. LEXIS 618 (1965).

If, upon undisputed proof, it is conjectural whether disability resulted from a cause operating within petitioner's employment, or a cause operating without his employment, there can be no award. Tibbals Flooring Co. v. Stanfill, 219 Tenn. 498, 410 S.W.2d 892, 1967 Tenn. LEXIS 369 (1967).

Where the employer construction company frequently performed work in localities away from its principal office, and the employees were required to provide their own transportation and were not paid for any time up until they actually went to work on the job site, the plaintiff employee was simply a commuter, and the accident which occurred on the 115 mile trip back to his home from the job site did not arise out of his employment. Smith v. Royal Globe Ins. Co., 551 S.W.2d 679, 1977 Tenn. LEXIS 527 (Tenn. 1977).

Where the death certificate stated that the cause of death in an automobile accident was “an apparent heart attack,” and although there was a stipulation that death occurred in the course of deceased's employment, and testimony that deceased was a hard worker and frequent traveler, this was not sufficient to raise presumption that death arose out of employment. Collins v. Liberty Mut. Ins. Co., 561 S.W.2d 456, 1978 Tenn. LEXIS 582 (Tenn. 1978).

The medical proof that the injury was caused in the course of the employee's work must not be speculative or so uncertain regarding the cause of injury that attributing it to the plaintiff's employment would be an arbitrary determination or a mere possibility. Bolton v. CNA Ins. Co., 821 S.W.2d 932, 1991 Tenn. LEXIS 483 (Tenn. 1991).

Evidence supported the trial court's finding that conditions of employment — stress associated with driving a truck through an ice storm — precipitated the employee's stroke. Reeser v. Yellow Freight Sys., 938 S.W.2d 690, 1997 Tenn. LEXIS 107 (Tenn. 1997).

Where an employee suffered a fatal heart attack while driving the employer's vehicle home from work, the employee's widow and son were entitled to death benefits, funeral expenses, and medical expenses; the trial court was permitted to believe his doctor's testimony that the employee's heart attack could have resulted from the physical exertion of his job. Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 2004 Tenn. LEXIS 173 (Tenn. 2004).

Evidence did not preponderate against the trial court's finding that the employee's death arose out of his employment where the shooting was related to the employee's employment as he was outside the employer's office waiting to get paid in accordance with the employer's payment procedure when the shooting occurred; the shooting occurred while the employee was within the time and place of his employment and while he was following the employer's procedures for collecting his paycheck. Hurst v. Ready, 197 S.W.3d 756, 2006 Tenn. LEXIS 598 (Tenn. July 7, 2006).

81. —“Arising out of” and “In Course of” Distinguished.

“Arising out of employment” refers to the origin of the injury, while “in course of employment” refers to time, place and circumstance. Hendrix v. Franklin State Bank, 154 Tenn. 287, 290 S.W. 30, 1926 Tenn. LEXIS 125 (1926); Early Stratton Co. v. Rollison, 156 Tenn. 256, 300 S.W. 569, 1927 Tenn. LEXIS 110 (1927); McConnell v. Lancaster Bros., 163 Tenn. 194, 42 S.W.2d 206, 1931 Tenn. LEXIS 97 (1931); McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956); Shubert v. Steelman, 214 Tenn. 102, 377 S.W.2d 940, 1964 Tenn. LEXIS 454 (1964).

The injury must arise “out of” the employment as well as “in the course of” employment. Thornton v. RCA Service Co., 188 Tenn. 644, 221 S.W.2d 954, 1949 Tenn. LEXIS 384 (1949); McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956).

The qualifying terms of this section are connected by the conjunction and both conditions must obtain before compensation for the injury can be claimed. It is not sufficient that the injury resulted from an accident received in the course of employment. Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771, 1951 Tenn. LEXIS 314 (1951), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

The terms “arising out of employment” and “in the course of employment” are not synonymous, and if an employee suffers an accident in the course of employment it does not necessarily follow that the injury arose out of and in the course of his employment. Sandlin v. Gentry, 201 Tenn. 509, 300 S.W.2d 897, 1957 Tenn. LEXIS 330 (1957).

The phrases “arising out of” and “in the course of” are not synonymous, but, rather, embody distinct concepts which are primarily basic to liability under the Workers' Compensation Law. Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765, 1966 Tenn. LEXIS 617, 1966 Tenn. LEXIS 618 (1966), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

The phrase “in the course of” refers to time and place and “arising out of” to cause or origin. Chapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 426 S.W.2d 760, 1968 Tenn. LEXIS 470 (1968).

The phrase, “in the course of,” refers to time and place, and “arising out of,” to cause or origin; an injury by accident to an employee is “in the course of” employment if it occurred while he was performing a duty he was employed to do, and it is an injury “arising out of” employment if caused by a hazard incident to such employment, citing Travelers Ins. Co. v. Googe, 217 Tenn. 272, 397 S.W.2d 368, 1965 Tenn. LEXIS 543 (1965); Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

The terms “arising out of employment” and “in the course of employment” are not synonymous; an injury occurs “in the course of employment” if it takes place while the employee was performing a duty he was employed to perform; in contrast, “arising out of” employment refers to cause or origin. Houser v. Bi-Lo, Inc., 36 S.W.3d 68, 2001 Tenn. LEXIS 54 (Tenn. 2001).

An injury occurs “in the course of” employment if it takes place while the employee was performing a duty he was employed to perform, whereas an injury arises out of employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be done and the resultant injury. Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 2001 Tenn. LEXIS 140 (Tenn. 2001), rehearing denied, Cunningham v. Shelton Sec. Serv., Inc. , — S.W.3d —, 2001 Tenn. LEXIS 381 (Tenn. 2001).

Statutory requirements that the injury arise out of and occur in the course of the employment are not synonymous; an injury occurs in the course of employment if it takes place while the employee was performing a duty he or she was employed to perform, and therefore the course of employment requirement focuses on the time, place, and circumstances of the injury. Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 2004 Tenn. LEXIS 173 (Tenn. 2004).

82. —“Employment”.

83. — —Construction and Application of Term.

The word “employment” as used in this statute will be given a liberal rather than a restricted meaning. McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956).

Employee may not recover workers' compensation benefits for emotional injuries resulting from sexual harassment by a supervisor because the employee's injuries did not arise out of her employment where supervisor's motive for harassment was purely personal in nature, was not related to furthering the business of the employer and there is no indication that the nature of the employer's business was such that the risk of harassment was a reasonable hazard of or normal component of the employee's working relationship. Anderson v. Save-A-Lot, Ltd., 989 S.W.2d 277, 1999 Tenn. LEXIS 45 (Tenn. 1999), rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 110 (Tenn. Mar. 1, 1999).

84. —Injury within Contemplation — Requirement.

The injury, to be compensable, must be one that by the exercise of foresight the employer might have contemplated as a result of engaging in the business and contracting with his workmen. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924); Davis v. Wabash Screen Door Co., 185 Tenn. 169, 204 S.W.2d 87, 1947 Tenn. LEXIS 316 (1947); Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

Recovery will be denied when the employee voluntarily engages in work not only outside of his employment but involving an added element of peril which could not reasonably have been anticipated as applicable to the work for which he had been employed. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924).

In order to be compensable, an injury need not to have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence, and reasonably have been, if thought of at the time of employment, considered a risk. Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389, 1954 Tenn. LEXIS 464 (1954).

If the injury can be seen to have followed as a natural incident of the work of the employee and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment it arises out of the employment. Volz v. Southerland, 200 Tenn. 344, 292 S.W.2d 385, 1956 Tenn. LEXIS 416 (1956).

An accident arises out of employment when it is apparent to the rational mind upon consideration of all the circumstances that there is a causal connection between work required to be done and the resultant injury. Sandlin v. Gentry, 201 Tenn. 509, 300 S.W.2d 897, 1957 Tenn. LEXIS 330 (1957).

Ordinary and usual exertion at work resulting in injury is compensable. Nashville Pure Milk Co. v. Rychen, 204 Tenn. 575, 322 S.W.2d 432, 1958 Tenn. LEXIS 277 (1958).

In order to be compensable, an injury need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence and reasonably have been, if thought of at the time of employment, considered a risk. West Tennessee Nix-A-Mite Systems, Inc. v. Funderburk, 208 Tenn. 381, 346 S.W.2d 250, 1961 Tenn. LEXIS 296 (1961); Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964); Ward v. Ward, 213 Tenn. 657, 378 S.W.2d 754, 1964 Tenn. LEXIS 434 (1964).

There must be some causal relation between the employment and the injury, but if the injury is one which after the event may seem to have had its origin in the employment, it need not be shown that it is one that ought to have been foreseen or expected. W. S. Dickey Mfg. Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493, 1961 Tenn. LEXIS 323 (1961).

The question of whether a death resulting from a heart attack in the course of employment can be compensable as arising out of the employment is a question of fact to be resolved by the trial court on the basis of whether or not there was a causal connection between the heart attack and the employment. Ward v. Commercial Ins. Co., 213 Tenn. 100, 372 S.W.2d 292, 1963 Tenn. LEXIS 473 (1963); Cas Walker's Cash Stores, Inc. v. Livesay, 215 Tenn. 306, 385 S.W.2d 745, 1965 Tenn. LEXIS 618 (1965).

85. —Acts for Employer's Benefit.

Acts for the employer's benefit are usually held to arise out of the employment, if expressly, impliedly or reasonably authorized. Tallent v. M. C. Lyle & Son, 187 Tenn. 482, 216 S.W.2d 7, 1948 Tenn. LEXIS 454 (1948); McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956); Sharp v. Jenkins, 211 Tenn. 691, 367 S.W.2d 464, 1963 Tenn. LEXIS 392 (1963).

Where duties of employee employed by sole employer were many and varied and include driving employer's automobile both for business purposes and for purposes purely personal to the employer, and where employee was injured while driving employer on a trip which was purely personal to the employer but which was not personal to employee and which employee was making solely because directed to do so by employer, employee's injury arose out of and was in the course of employment and was compensable under statute. McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956).

Where it was undisputed that the usual lunch time procedures, which were known and participated in by employer, regularly involved one of the employees leaving the premises and obtaining lunch for the others who remained at their work stations; that on the date of the accident, plaintiff had brought his own lunch to work with him that morning and therefore had no reason to leave work at lunch time except to obtain lunch for his coworkers; and that plaintiff's journey, although arguably unknown to his employer on February 15, 1980, not only benefitted his employer by allowing the other employees to keep on working while plaintiff was obtaining their lunch, but also subjected plaintiff to a definite risk or hazard on the road, chancellor's finding that plaintiff sustained a compensable injury arising out of and in the course of his employment when he was involved in an accident during the trip would be upheld. McCammon v. Neubert, 651 S.W.2d 702, 1983 Tenn. LEXIS 663 (Tenn. 1983).

86. —Recreation or Social Activities.

Employee injured while playing basketball on break from work at home of customer was not injured as an incident of his employment and was not entitled to workers' compensation. Ward v. Mid-South Home Service, 769 S.W.2d 486, 1989 Tenn. LEXIS 140 (Tenn. 1989).

Neither mere encouragement nor the offer of a nominal cash prize is enough to transform what would otherwise be a voluntary activity into one within the course of employment. Phyllis A. Young v. Taylor-white, LLC., 181 S.W.3d 324, 2005 Tenn. LEXIS 853 (Tenn. Oct. 20, 2005).

Where an employee injured her shoulder while participating in races during an employer-sponsored company picnic, the injury did not occur in the course of her employment; the picnic was held on a Saturday, outside of work hours, at a public park off of the company's premises. Phyllis A. Young v. Taylor-white, LLC., 181 S.W.3d 324, 2005 Tenn. LEXIS 853 (Tenn. Oct. 20, 2005).

87. —Nonbeneficial Acts.

It is not essential that the employee be engaged in an act directly beneficial to his employer in order that the resulting injury may be said to have arisen out of the employment. Chamber of Commerce v. Turner, 158 Tenn. 323, 13 S.W.2d 318, 1928 Tenn. LEXIS 156 (1929).

88. —Emergency.

A timekeeper, a part of whose duties it was to supervise conditions in the yard adjoining his office, when there was a degree of emergency calling for his physical effort in moving a concrete mixer that obstructed the office entrance, was not so far a volunteer as to deprive him of compensation for an injury that resulted. Roehl v. Graw, 161 Tenn. 461, 32 S.W.2d 1049, 1930 Tenn. LEXIS 30 (1930).

An employee performing an act made necessary by an emergency in his employer's business does not thereby lose the protection of the statute. Travelers Ins. Co. v. Dudley, 180 Tenn. 191, 173 S.W.2d 142 (1943).

89. —Acts of God.

Injuries resulting from acts of God are compensable when the employee, by reason of his employment, is subjected to a hazard from such act of God not common to the general public, but peculiar to the nature of the employment and to the conditions under which that employment is required to be performed. Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389, 1954 Tenn. LEXIS 464 (1954).

Where employee was killed by tornado while being driven in employer's truck from the job to sleeping quarters furnished by employer, injury did not arise out of the employment and is not compensable. Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389, 1954 Tenn. LEXIS 464 (1954).

Finding of trial judge to effect that worker killed by lightning was subjected to an extra hazard by his employment so that his death was compensable was supported by substantial evidence where the evidence was to the effect that while such worker was working out-of-doors and pursuant to his duties he was killed in act of cutting off the ignition of an iron or steel irrigation pump with aluminum pipes connected therewith when a lightning stroke was conducted into his body through such instrumentality. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956).

Acts of God are compensable under the statute where the employee by reason of his duties is exposed to a peculiar danger from such act that is greater than that of persons generally in the community. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956).

Where a night watchman on duty was killed when the building in which he was working collapsed after being hit by a tornado, his survivor was not entitled to recover compensation since acts of God are compensable only where the employee, by reason of his employment, is subjected to hazards from such act of God not common to the general public, but peculiar to the nature of the employment and to the conditions under which that employment is required to be performed, in which case they arise out of and in the course of the employment. Hill v. St. Paul Fire & Marine Ins. Co., 512 S.W.2d 560, 1974 Tenn. LEXIS 488 (Tenn. 1974).

The rule of law requiring that, to be compensable as arising out of and in the course of employment, injuries resulting from an act of God must arise from a situation where the employee, by reason of his employment, is subjected to hazards from such act of God not common to the general public, but peculiar to the nature of the employment and to the conditions under which that employment is required to be performed, does not violate the equal protection of laws clause of the U.S. Const., amend. 14. Hill v. St. Paul Fire & Marine Ins. Co., 512 S.W.2d 560, 1974 Tenn. LEXIS 488 (Tenn. 1974).

90. —Servant Engaged in Business of Both Employer and Self.

If the business of the master creates the necessity for the travel, the servant is in the course of his employment although he is furthering at the same time some purpose of his own. Patton v. L. O. Brayton & Co., 184 Tenn. 592, 201 S.W.2d 981, 1947 Tenn. LEXIS 281 (1947).

91. —Union Activity.

A union activity is in the course of employment if the activity is of mutual benefit to the employee and the employer. Jones v. Hartford Acci. & Indem. Co., 811 S.W.2d 516, 1991 Tenn. LEXIS 195 (Tenn. 1991).

Where plaintiff/union chairperson was summoned by a direct order from the owner of the plant to receive and pass along a message to the union's business manager, the content of which was related directly to the plant owner's authority to question employees in general, and plaintiff specifically, about their employment status, the receipt and conveyance of this message served the purpose of and benefited the employer, and was in the course of the plaintiff's employment. Jones v. Hartford Acci. & Indem. Co., 811 S.W.2d 516, 1991 Tenn. LEXIS 195 (Tenn. 1991).

92. —Voluntary Departure from Service of Employer.

No compensation where injury is incurred while employee departs from service and is rendering voluntary aid to a third person. American Casualty Co. v. McDonald, 166 Tenn. 25, 57 S.W.2d 795, 1932 Tenn. LEXIS 107 (1933).

When an employee or worker steps aside from his employment on a personal mission, it is a departure from such employment and an injury during such mission does not arise out of and in the course of his employment. Free v. Indemnity Ins. Co., 177 Tenn. 287, 145 S.W.2d 1026, 1940 Tenn. LEXIS 37 (1941).

Medical testimony and testimony of employee adequately supported trial judge's finding that the employee was disabled and did not quit her job voluntarily. Continental Ins. Co. v. Dowdy, 560 S.W.2d 619, 1978 Tenn. LEXIS 570 (Tenn. 1978).

93. —Violation of Instructions.

An ore shoveler, who departed from his designated field voluntarily and against instructions engaged in work about a freight car where there was added peril, may not recover. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924).

The violation by an employee of an instruction with regard to conduct of the employee within the sphere of his employment will not place the resultant activity of the employee outside the scope of his employment, if it be short of willful misconduct. Kingsport Foundry & Machine Works, Inc. v. Sheffey, 156 Tenn. 150, 299 S.W. 787, 1927 Tenn. LEXIS 97 (1927).

94. —Unauthorized Absence of Employee.

Where a nightwatchman, whose general duties were to remain on the premises and watch employer's plant, was injured while returning from a restaurant where he had gone to obtain food, without the knowledge or acquiescence of employer, he was not entitled to compensation, as the employment was suspended while the employee was off the employer's premises on a personal mission. Toombs v. Liberty Mut. Ins. Co., 173 Tenn. 38, 114 S.W.2d 785, 1937 Tenn. LEXIS 10 (1938).

95. —Right to Limit Scope of Employee's Work.

The employer has a right to limit the scope of the engagement of an employee to a restricted field or portion of work with reference to the employee's peculiar fitness. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924); Roehl v. Graw, 161 Tenn. 461, 32 S.W.2d 1049, 1930 Tenn. LEXIS 30 (1930).

96. —Injury on Premises While Not at Work.

A laundry employee, injured while pressing a skirt for a fellow employee, on a day of the week when individual laundering was forbidden and after regular work hours, was not in the course of employment. Hinton Laundry Co. v. De Lozier, 143 Tenn. 399, 225 S.W. 1037, 1920 Tenn. LEXIS 27, 16 A.L.R. 1361 (1920).

Employee, allowed to eat lunches on premises, in returning to place of work, with lunch procured outside with intent to eat on premises and injured on employer's elevator, is entitled to compensation. Johnson Coffee Co. v. McDonald, 143 Tenn. 505, 226 S.W. 215, 1920 Tenn. LEXIS 37 (1920).

Employee, who fell into a reservoir and was drowned while washing up to go home, according to custom, recovers. Tennessee Chemical Co. v. Smith, 145 Tenn. 532, 238 S.W. 97, 1921 Tenn. LEXIS 93 (1922).

Employee, while departing from but while yet on the employer's premises, and while using a commonly used exit, injured when crawling under a car that blocked such way, recovers. Moore v. Cincinnati, N. O. & T. P. R. Co., 148 Tenn. 561, 256 S.W. 876, 1923 Tenn. LEXIS 43 (1923), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Employee, caretaker of a poultry car in a train, having temporarily dismounted from the car because of necessity or reasonable occasion not involving a departure from the place of work, is entitled to compensation for injury outside of but near to his car. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928).

An injury suffered by an employee during noon intermission while on the premises watching a game of basketball encouraged by the employer is compensable. Kingsport Silk Mills v. Cox, 161 Tenn. 470, 33 S.W.2d 90, 1930 Tenn. LEXIS 31 (1930).

As regards obligation of employer to protect servant, the relation of master and servant is not suspended during the noon hour, where the master expressly or by fair implication invites his servants to remain on the premises in the immediate vicinity of the work. Kingsport Silk Mills v. Cox, 161 Tenn. 470, 33 S.W.2d 90, 1930 Tenn. LEXIS 31 (1930).

Injury caused by employee's attempt in a sportive spirit to jump over the hood of an automobile is not compensable. Hawkins v. National Life & Acci. Ins. Co., 164 Tenn. 36, 46 S.W.2d 55, 1931 Tenn. LEXIS 7 (1932). See Kingsport Silk Mills v. Cox, 161 Tenn. 470, 33 S.W.2d 90, 1930 Tenn. LEXIS 31 (1930).

Where an employer provided a cafeteria for his employees and an employee while on the employer's premises and en route to the cafeteria had an accident, the injury arose out of and in the course of the employment and was compensable under this act. Kaylor v. Magill, 181 F.2d 179, 1950 U.S. App. LEXIS 2576 (6th Cir. Tenn. 1950).

“Premises” under compensation statute means the part of employer's property where the employee is required to work, including part which he is required to use for ingress and egress, in issue of whether employee is injured in course of employment after work. Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386, 1955 Tenn. LEXIS 337 (1955), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

An employee may be injured on the employer's property and still not be involved in conduct which will make the injury compensable, the mere fact that the employee was injured on the employer's premises or property not being determinative. Travelers Indem. Co. v. Charvis, 221 Tenn. 593, 428 S.W.2d 797, 1968 Tenn. LEXIS 489 (1968).

Employee, who asked permission to leave employer's premises to get a dress for her own use after work and was struck by car in employer's parking lot near her own automobile which was parked in lot for her convenience, was on a personal mission and not entitled to compensation. Shelby Mutual Ins. Co. v. Cates, 223 Tenn. 442, 446 S.W.2d 682, 1969 Tenn. LEXIS 429 (1969).

Where employee was required to be on employer's premises at night and was accidentally shot to death by fellow employee while at living quarters provided by employer on such premises, death arose out of and in course of employment. Williams v. Preferred Development Corp., 224 Tenn. 174, 452 S.W.2d 344, 1970 Tenn. LEXIS 310 (1970).

Where employer required employees to go to and from work through lunch and locker room, such place became an “element or factor” in the employment so that employer owed employees same duty of protection there as where they worked, and employee injured after work when she leaned against table in lunch and locker room when table collapsed, was injured by accident, which arose out of and in course of employment. Drinnon v. Knox Mfg. Co., 481 S.W.2d 380, 1972 Tenn. LEXIS 345 (Tenn. 1972).

Where employee slipped on an icy slab as she came out of the building where she worked en route to a lunch wagon, her injury arose out of and in the course of her employment. Hankins v. Camel Mfg. Co., 492 S.W.2d 212, 1973 Tenn. LEXIS 510 (Tenn. 1973).

Where employee was injured after leaving work by stepping into hole in employer-owned and maintained parking lot, such hole having been hidden by water after heavy downpour of rain, employee's injury arose out of and in the course of her employment. Kellwood Co. v. Gibson, 581 S.W.2d 645, 1979 Tenn. LEXIS 438 (Tenn. 1979), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Where the employee is injured on the employee's premises during a break period provided by the employer, such an injury is generally compensable. Drew v. Tappan Co., 630 S.W.2d 624, 1982 Tenn. LEXIS 395 (Tenn. 1982); Holder v. Wilson Sporting Goods Co., 723 S.W.2d 104, 1987 Tenn. LEXIS 814 (Tenn. 1987).

97. —Injury as Result of Assault.

An assault “arises out of the employment” if the assault is causally related to the work. Whaley v. Patent Button Co., 184 Tenn. 700, 202 S.W.2d 649, 1947 Tenn. LEXIS 291 (1947).

An injury as a result of an assault is held to be one arising out of the employment, hence compensable, if a causal connection appears between the employment and the assault, or the assault was a risk peculiarly incident to the particular employment. Thornton v. RCA Service Co., 188 Tenn. 644, 221 S.W.2d 954, 1949 Tenn. LEXIS 384 (1949).

It is now well settled in these workers' compensation cases that the fact that an injury is the result of the willful or criminal assault of another does not prevent the injury from being accidental. Turner v. Bluff City Lumber Co., 189 Tenn. 621, 227 S.W.2d 1, 1950 Tenn. LEXIS 401 (1950).

Murder of claimant's decedent in workers' compensation case did not arise out of or in the course of his employment where it resulted from fellow employee's belief that decedent had framed him in an illicit love affair, rather than antagonism over their job relationship. Dismuke v. Arkansas-Best Freight Systems, Inc., 346 F.2d 145, 1965 U.S. App. LEXIS 5461 (6th Cir. Tenn. 1965).

Where an altercation between the decedent and another employee originated in an argument concerning the work that the other employee was performing and the entire focus of the dispute was apparently related to the employment setting, the death of the decedent as a result of being shot by the other worker arose out of the decedent's employment. Woods v. Harry B. Woods Plumbing Co., 967 S.W.2d 768, 1998 Tenn. LEXIS 194 (Tenn. 1998).

98. —Injury by Fellow Servant.

As a general rule, where an employee is intentionally injured by a fellow servant, there is no liability. Milne v. Sanders, 143 Tenn. 602, 228 S.W. 702, 1920 Tenn. LEXIS 48 (1921).

Where an employee, driver of a truck, and another employee, a shipping clerk who had charge of the former, had an altercation about the former's work, and the latter called in a third employee whose duty it was to keep the trucks in order and who fired a shot that killed the truck driver, in an effort to take him before the employer, the death was in the course of employment. Early Stratton Co. v. Rollison, 156 Tenn. 256, 300 S.W. 569, 1927 Tenn. LEXIS 110 (1927).

An employee injured in the course of employment by the horseplay of his fellow workers in which he took no part may recover. Borden Mills, Inc. v. McGaha, 161 Tenn. 376, 32 S.W.2d 1039, 1930 Tenn. LEXIS 15 (1930).

Death of an employee shot by another, where there was no right of supervision, as result of ill will engendered by language used in previous conversation, had no relation to the employment, but arose out of a matter purely personal. Forbess v. Starnes, 169 Tenn. 594, 89 S.W.2d 886, 1935 Tenn. LEXIS 87 (1936).

There can be no award for an assault by a fellow employee in a personal difficulty to employees if the difficulty was unrelated to their employment or not in furtherance of their employer's business. Kinkead v. Holliston Mills, 170 Tenn. 684, 98 S.W.2d 1066, 1936 Tenn. LEXIS 49 (1936).

Award of compensation was proper where the petitioner sustained injuries to his finger during the course of an argument with a fellow employee while in the performance of his duties as an employee. Turner v. Bluff City Lumber Co., 189 Tenn. 621, 227 S.W.2d 1, 1950 Tenn. LEXIS 401 (1950).

Petitioner's injury “arose out of” his employment where it resulted from a fight between him and a coworker, out of a personal altercation between them over accusations by the coworker that petitioner had stolen his pistol, although the employer had not instructed and did not require the coworker to possess a pistol in connection with his employment and did not know that he had one, where it could reasonably be said that one would expect petitioner and his coworkers, performing their duties as they did, to have a weapon of some sort nearby to protect themselves. Jim Reed Chevrolet Co. v. Watson, 194 Tenn. 617, 254 S.W.2d 733, 1953 Tenn. LEXIS 278 (1953).

Where employee was shot and killed by fellow servant after he made an unprovoked attack on such fellow servant in an encounter which was personal between the parties, such homicide did not arise out of and in the course of employment. Sandlin v. Gentry, 201 Tenn. 509, 300 S.W.2d 897, 1957 Tenn. LEXIS 330 (1957).

Where one employee assaults another solely to gratify his feeling of anger or hatred, such an act results from the voluntary act of the assailant and cannot be said to arise either directly out of the employment or as an incident thereto; however, when the assault is incidental to some duty of the employment, such assault is ordinarily held to arise out of the employment. W. S. Dickey Mfg. Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493, 1961 Tenn. LEXIS 323 (1961).

If an assault by a fellow employee grew out of an argument over the work, the possession of tools or equipment used in the work or out of similar circumstances, such assault is compensable. W. S. Dickey Mfg. Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493, 1961 Tenn. LEXIS 323 (1961).

Where the environment of the employment increases the probability of quarrels and an employee is thus injured, such injury is compensable. W. S. Dickey Mfg. Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493, 1961 Tenn. LEXIS 323 (1961).

The death of an employee murdered at work by a fellow-employee who accused him of framing him in an illicit love affair was noncompensable. Dismuke v. Arkansas-Best Freight Systems, Inc., 346 F.2d 145, 1965 U.S. App. LEXIS 5461 (6th Cir. Tenn. 1965).

Where an encounter or altercation between two employees is “personal” between the parties, the resulting injuries do not arise out of and in the course of employment. Brimhall v. Home Ins. Co., 694 S.W.2d 931, 1985 Tenn. LEXIS 526 (Tenn. 1985).

99. —Injury by Third Person.

A porter, who, while sweeping out a showroom, was shot by an air rifle in the hands of children accompanying employer's customer, was entitled to recover. Carmichael v. J. C. Mahan Motor Co., 157 Tenn. 613, 11 S.W.2d 672, 1928 Tenn. LEXIS 228 (1928).

The term “arising out of employment” refers to the origin of the cause of the injury. Death of employee in course of his employment from shot fired by third party as result of a purely personal difficulty unconnected with the employment was not compensable. McConnell v. Lancaster Bros., 163 Tenn. 194, 42 S.W.2d 206, 1931 Tenn. LEXIS 97 (1931).

Employee shot while operating a machine by disappointed former employee who fired a rifle through window of factory was entitled to recover compensation, since there was a causal connection between the work being performed and the resulting injury. Whaley v. Patent Button Co., 184 Tenn. 700, 202 S.W.2d 649, 1947 Tenn. LEXIS 291 (1947).

Death of employee who was killed by husband at place of employment as result of domestic argument did not arise out of her employment. White v. Whiteway Pharmacy, Inc., 210 Tenn. 449, 360 S.W.2d 12, 1962 Tenn. LEXIS 306 (1962).

Injuries suffered during rape of convenience store manager, who was custodian of her employer's valuable property and visibly identified as such, arose out of such employment. Jesse v. Savings Products, 772 S.W.2d 425, 1989 Tenn. LEXIS 247 (Tenn. 1989).

Where the injury occurred near place of employment while the employee was riding home along the usual and most direct route in an automobile which overturned by reason of the incomplete state of the road, on which he was working, he had not passed beyond what, in a broad sense, was the working premises or place and work upon which he was engaged. Washington County v. Evans, 156 Tenn. 197, 299 S.W. 780, 1927 Tenn. LEXIS 103 (1927).

The general rule is that an injury on the way to or from work, away from the employer's premises, is not compensable. Little v. Johnson City Foundry & Machine Co., 158 Tenn. 102, 11 S.W.2d 690, 1928 Tenn. LEXIS 129 (1928), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989); Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771, 1951 Tenn. LEXIS 314 (1951), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989); Webster v. Teledyne Lewisburg & Argonaut Ins. Co., 674 S.W.2d 725, 1984 Tenn. LEXIS 832 (Tenn. 1984).

Where the employee was at the time of the injury traveling on a public street 500 feet away from the place of work selected by his own choice and not imposed in any way by the contract of employment, he was not allowed compensation. Little v. Johnson City Foundry & Machine Co., 158 Tenn. 102, 11 S.W.2d 690, 1928 Tenn. LEXIS 129 (1928), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Though the general rule is that injury on way to or from work is not compensable, compensation may be recovered where the employee is on the street so near to the place of work as “to be intended by the contract of employment as being the means of access to the work.” Little v. Johnson City Foundry & Machine Co., 158 Tenn. 102, 11 S.W.2d 690, 1928 Tenn. LEXIS 129 (1928), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

The general rule as to compensation where employee is injured on way to or from work is subject to an exception where the contract of employment subjects the employee to such hazards as are incident to performance of duty. Thus, where employee was injured while crossing a street near the office of employment carrying reports and funds for delivery to the employer, he was in course of employment. Central Surety & Ins. Corp. v. Court, 162 Tenn. 477, 36 S.W.2d 907, 1930 Tenn. LEXIS 111 (1931).

While on his way to the office of employer, an employee collector as one of a crowd was held up for robbery, not because he was a collector, but as one of a crowd held up at the same time. Employee's death was not compensable. Porter v. Travelers' Ins. Co., 163 Tenn. 526, 43 S.W.2d 1066, 1931 Tenn. LEXIS 144 (1931).

A police officer, having no hour or limitation on his services and whose place of employment included the entire territory within the municipal boundaries, who was on his way home in uniform when struck by an automobile driven by a drunken driver was in the course of employment at the time of his injury. Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804, 1937 Tenn. LEXIS 16 (1938).

The relation between master and his servant is suspended when the servant leaves the place of actual employment to go to his home for rest or food or to associate with his family. Free v. Indemnity Ins. Co., 177 Tenn. 287, 145 S.W.2d 1026, 1940 Tenn. LEXIS 37 (1941); Patton v. L. O. Brayton & Co., 184 Tenn. 592, 201 S.W.2d 981, 1947 Tenn. LEXIS 281 (1947).

In cases where an employee is departing from or coming to his work, an injury off the premises of the employer or place of work is not compensable unless the injury is so close by or so nearly adjoining that it might reasonably be considered as in effect at the place, or unless he is using immediate means of access to or from the work so that he was directly and immediately connected with it. Free v. Indemnity Ins. Co., 177 Tenn. 287, 145 S.W.2d 1026, 1940 Tenn. LEXIS 37 (1941).

Where used car salesman was injured when he fell on ice on his way to his car from his place of employment and where his intention at the time was to drive to the grocery store to buy groceries for his personal use and then proceed to the place of employment of a prospective customer to tell him of the rejection of an offer to buy a car and after this to go home for supper and then return to the office for work, such employee had departed from the scope of his employment at the time of his injury and was on a private mission so that he was not entitled to compensation. Free v. Indemnity Ins. Co., 177 Tenn. 287, 145 S.W.2d 1026, 1940 Tenn. LEXIS 37 (1941).

An accident occurring upon public way is not compensable unless employee is engaged in work for his employer. Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771, 1951 Tenn. LEXIS 314 (1951), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

The supreme court has rejected the general statement that an accident suffered by an employee in going to and coming from work was compensable if it occurred on the employer's premises, or so near the place of employment as reasonably would be regarded as in effect at the place. Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771, 1951 Tenn. LEXIS 314 (1951), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

If a process of going to and from work is furnished by the employer, or is required by the employer to be done in a certain manner or over a certain way, and this submits the employee to a definite special hazard, then in such event such accidents are compensable. The employee is not to be considered in the course of his employment until he has actually arrived at his place of employment ready to begin his activities in the employer's work unless these qualifications are applicable. Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771, 1951 Tenn. LEXIS 314 (1951), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Where plaintiff was injured in fall on sidewalk in front of employer's place of business while on her way home, such injury was not in the course of her employment where there was no allegation that the sidewalk was defective nor that the wax which plaintiff alleged adhered to her shoe was the cause of her fall, and there was no allegation that work for employer which plaintiff contemplated doing at home was other than voluntary. James v. Sanders Mfg. Co., 203 Tenn. 274, 310 S.W.2d 466, 1958 Tenn. LEXIS 300 (1958).

Where employee of beauty salon located in department store was injured when she entered store while on her way to work, but at an entrance where employees were not supposed to enter, and before she reached the place where her record card and money bag were located, the injury was not in the course of her employment. Anderson v. Royal Indem. Co., 169 F. Supp. 122, 1958 U.S. Dist. LEXIS 3287 (D. Tenn. 1958).

As a general proposition, injuries arise out of and in the course of employment when an employee is using the transportation provided by his employer in going to and returning from his work. Ward v. Ward, 213 Tenn. 657, 378 S.W.2d 754, 1964 Tenn. LEXIS 434 (1964).

Employee who was fatally injured in company car while on his way back to place of employment in Tennessee after visiting his family in Alabama and who was instructed to stop on the way to check a completed job in another town was killed in accident arising out of and in the course of his employment. Ward v. Ward, 213 Tenn. 657, 378 S.W.2d 754, 1964 Tenn. LEXIS 434 (1964).

Claimant's activities were not sufficiently within the scope of his employment to warrant coverage under the Workers' Compensation Act where, on his way home from work, he had purchased supplies for the job and, on his way to employment the following morning, transporting such supplies, an automobile accident resulted in his death. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965).

Where it was customary for employee to pick up small equipment on his way home and take them to work with him the following day but equipment could have been picked up or delivered during the day and such action was not expressly authorized but only permitted, facts were such as to indicate that trips were primarily for benefit of employee and to sustain action of trial court in denying compensation for death of employee killed on way to work. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965).

An employee is not entitled to compensation for injury in parking lot of employer before starting the day's work and while walking to that part of the premises where the work was required where the parking of the automobile in the lot was permitted but not required and the route taken to work was of the employee's own choosing. McKinney v. Hardwick Clothes, Inc., 217 Tenn. 457, 398 S.W.2d 265, 1966 Tenn. LEXIS 605 (1966).

In order for an injury along a required access to place of employment to be compensable the access must not only be required but the usage of the route must subject the employee to a special or inherent hazard of the route. Travelers Indem. Co. v. Charvis, 221 Tenn. 593, 428 S.W.2d 797, 1968 Tenn. LEXIS 489 (1968).

The general rule is that an employee is not in a compensable status until he has reached his station or place of employment. Travelers Indem. Co. v. Charvis, 221 Tenn. 593, 428 S.W.2d 797, 1968 Tenn. LEXIS 489 (1968); Potts v. Heil-Quaker Corp., 482 S.W.2d 135, 1972 Tenn. LEXIS 355 (Tenn. 1972), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

The general rule is that an accidental injury received by an employee while en route to or from his place of employment is not compensable unless the journey itself is a substantial part of the service for which the employee was employed and compensated. Douglas v. Lewis Bros. Bakeries, Inc., 477 S.W.2d 202, 1972 Tenn. LEXIS 390 (Tenn. 1972).

Death of employee who worked regular shift and was also subject to call at any time to make machinery repairs and who was killed in automobile accident en route to place of employment on special call, did not arise out of and in course of his employment. Douglas v. Lewis Bros. Bakeries, Inc., 477 S.W.2d 202, 1972 Tenn. LEXIS 390 (Tenn. 1972).

Where plaintiff was injured in a parking lot which was not on her employer's premises while taking an unpaid lunch break during which she was free to eat lunch at any place of her choice, she was not entitled to workers' compensation benefits, even though her employer requested that she leave the premises during lunch hour. Pacific Employers Ins. Co. v. Booker, 553 S.W.2d 586, 1977 Tenn. LEXIS 586 (Tenn. 1977).

The general rule is that injuries sustained en route to work are not compensable because they do not arise out of and in the course of employment. Frazier v. Normak International, 572 S.W.2d 650, 1978 Tenn. LEXIS 658 (Tenn. 1978), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

There is no iron-clad rule which calls for payment of benefits under the Workers' Compensation Law where an employee suffers a heart attack while at work and for the denial of benefits where the employee suffers a heart attack while on the way home from work. The key to the recovery or denial of benefits is whether the heart attack is precipitated by the physical activity and exertion of the employee's work. Shelby Mut. Ins. Co. v. Dudley, 574 S.W.2d 43, 1978 Tenn. LEXIS 674 (Tenn. 1978).

Where claimant worked in Knoxville and planned an employment-related trip to Paris Landing State Park, and was in Jackson on the morning of the trip, as opposed to Knoxville, but his employer had no interest in any particular route, then at the time of his injury, on the way from Jackson to the state park, the claimant was engaged in a trip made necessary by the requirements of his employment, and thus his injury arose out of and in the course of his employment. Watson v. United States Fire Ins. Co., 577 S.W.2d 668, 1979 Tenn. LEXIS 403 (Tenn. 1979).

A truck driver is exposed to the hazards of the street and where driver was shot by two or three assailants while returning to his truck cab with a carry-out lunch, his injury arose out of his employment. Hudson v. Thurston Motor Lines, Inc., 583 S.W.2d 597, 1979 Tenn. LEXIS 448 (Tenn. 1979).

The need to carry tools coupled with reimbursement of travel expenses removed the case from the general rule of nonliability. Pool v. Metric Constructors, Inc., 681 S.W.2d 543, 1984 Tenn. LEXIS 902 (Tenn. 1984).

The Woods v. Warren rule, understood as encompassing the cases leading up to Woods v. Warren as well as the cases following it, has failed as a test for determining when en route injuries are “in the course of employment.” Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

A worker who is on the employer's premises coming to or going from the actual work place is acting in the course of employment. Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

If the employer has provided a parking area for its employees, that parking area is part of the employer's premises regardless of whether the lot is also available to customers or the general public. Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

The “course of employment” includes not only the time for which the employee is actually paid, but also a reasonable time during which the employee is necessarily on the employer's premises while passing to or from the place where the work is actually done. Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Death of employee, who was killed in accident while on her way home to pick up company document during her lunchbreak, did not arise out of and in the course of employment because employer did not specifically instruct the employee to retrieve the document during her lunchbreak. Stephens v. Maxima Corp., 774 S.W.2d 931, 1989 Tenn. LEXIS 399 (Tenn. 1989).

100. — —Transportation Furnished by Employer.

Generally where an employer is to furnish the employee transportation as an incident to his employment and such employee is accidentally killed or injured on the way to or from work, such injury or death is one that arises out of the course of employment. Norwood v. Tellico River Lumber Co., 146 Tenn. 682, 244 S.W. 490, 1922 Tenn. LEXIS 16, 24 A.L.R. 1227 (1922); W. C. Sharp Drug Stores v. Hansard, 176 Tenn. 595, 144 S.W.2d 777, 1940 Tenn. LEXIS 106 (1940); Vaughn v. Standard Surety & Casualty Co., 27 Tenn. App. 671, 184 S.W.2d 556, 1944 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1944); Choate v. Athens Mfg. Co., 675 S.W.2d 169, 1984 Tenn. LEXIS 837 (Tenn. 1984).

An injury to an employee while riding on a free pass on employer's logging train, out of work hours, while returning to his home after a personal visit, is not compensable. Norwood v. Tellico River Lumber Co., 146 Tenn. 682, 244 S.W. 490, 1922 Tenn. LEXIS 16, 24 A.L.R. 1227 (1922).

Fatal injury of employee, riding to his work on horse supplied by his employer, when horse became frightened at a passing train arose out of and in the course of his employment despite fact that deceased was in immediate control of the horse. McClain v. Kingsport Improv. Corp., 147 Tenn. 130, 245 S.W. 837, 1922 Tenn. LEXIS 26 (1922).

Where drug store was to furnish transportation to its motorcycle messenger and the motorcycle so furnished was to be stored at night at the home of the messenger and where the employee sometimes brought packages home for delivery on the way to work the following morning, the accidental death of such employee which occurred on the way to work while he was riding his own motorcycle on which the store was paying rent after its own motorcycle broke down arose out of and in the course of the employment. W. C. Sharp Drug Stores v. Hansard, 176 Tenn. 595, 144 S.W.2d 777, 1940 Tenn. LEXIS 106 (1940).

Where an employee of a construction outfit was transported to and from work in the employer's truck but was paid only for the hours actually on the job, the transportation was incidental to the employment contract and a part thereof. Vaughn v. Standard Surety & Casualty Co., 27 Tenn. App. 671, 184 S.W.2d 556, 1944 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1944).

Where an employee was injured when being transported from work in his employer's truck, which transportation was incidental to the employment contract and a part thereof, he could not recover on an insurance policy protecting the employer which expressly excluded actions compensable under the Workers' Compensation Law. Vaughn v. Standard Surety & Casualty Co., 27 Tenn. App. 671, 184 S.W.2d 556, 1944 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1944).

Accident arose out of and in the course and scope of the employment where the company provided employee a business use vehicle that he was authorized and expected to use in going to and from work sites to his home. Eslinger v. F & B Frontier Constr. Co., 618 S.W.2d 742, 1981 Tenn. LEXIS 456 (Tenn. 1981).

Where car dealer allowed a salesman to drive demonstrator car home from work, but specified no particular route, a minor deviation from the salesman's usual route did not take the trip outside the scope of the salesman's employment. Anderson v. Sam Monday Motors, 619 S.W.2d 382, 1981 Tenn. LEXIS 467 (Tenn. 1981).

101. — —Transportation for Employer's Benefit.

Where petitioner from the time of his employment to the day of his accident transported some of his fellow employees to and from work, and his employer was interested in this activity, the finding of the chancellor, based upon evidence, that the transportation of employees was a part of the contract of hire, was conclusive, and even apart from this finding, petitioner was entitled to compensation for an injury received in making adjustments to his automobile while waiting for the employer to bring other employees to the point where the automobile was parked and waiting to receive them. Tallent v. M. C. Lyle & Son, 187 Tenn. 482, 216 S.W.2d 7, 1948 Tenn. LEXIS 454 (1948).

102. —Accident Occurring on Public Way.

An accident occurring upon a public way, when the employee is not doing anything for the employer by reason of the employment, is not compensable because not arising out of his employment and not occurring in the course of his employment. Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771, 1951 Tenn. LEXIS 314 (1951), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Ordinarily, if the employment occasions the employee's use of the street, the risk of the street is the risk of the employment. Crane Rental Service v. Rutledge, 219 Tenn. 433, 410 S.W.2d 418, 1966 Tenn. LEXIS 542 (1966).

Where crane operator drove truck carrying part of boom of crane a short distance on street in direction of location of job and then stopped truck and started walking back in direction of employer's premises when he was struck by automobile on street and suffered brain damage which precluded him from testifying, chancellor was justified in reaching conclusion that injuries arose out of and in course of employment. Crane Rental Service v. Rutledge, 219 Tenn. 433, 410 S.W.2d 418, 1966 Tenn. LEXIS 542 (1966).

Where employee gets out of his car in the course of his business to do something for his employer and injury or death is occasioned thereby and a prima facie case is made to this effect, injury or death is compensable. Crane Rental Service v. Rutledge, 219 Tenn. 433, 410 S.W.2d 418, 1966 Tenn. LEXIS 542 (1966).

Employees who must cross a public way that bisects an employer's premises and who are injured on that public way while traveling a direct route between an employer's plant facility and parking lot are entitled to workers' compensation benefits. Copeland v. Leaf, Inc., 829 S.W.2d 140, 1992 Tenn. LEXIS 295 (Tenn. 1992), rehearing denied, — S.W.2d —, 1992 Tenn. LEXIS 305 (Tenn. Apr. 13, 1992).

103. —Traveling Employees.

Where employment requires employee to travel from place to place, the risks of travel are a part of the employment. Where insurance company's inspector was injured by falling from second floor, when he was returning to his hotel room to make out daily reports for his employer, the injury arose out of and in the course of his employment. Employers' Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837, 1937 Tenn. LEXIS 89 (1938) (decision under Kentucky statute).

Where an employee, who is traveling from place to place for his employer, takes time off to engage in some personal venture, the continuity of the employment is broken, and the employee cannot recover compensation for any injury caused in whole or in part by such voluntary venture. Employers' Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837, 1937 Tenn. LEXIS 89 (1938) (decision under Kentucky statute).

Where a traveling salesman on a sales trip and on his regular itinerary met his death in a hotel fire while staying at a hotel where he customarily stopped while on such trips, such salesman met his death by accident arising out of and in the course of his employment. Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

Employee whose employment required him to travel from town to town and who stopped at a restaurant along the way for lunch where he was injured by the assault of an insane man was not entitled to compensation as his injuries were not related to his employment. Thornton v. RCA Service Co., 188 Tenn. 644, 221 S.W.2d 954, 1949 Tenn. LEXIS 384 (1949).

If the duty of the employee creates the necessity for travel, then the risks of travel are directly incident to the employment itself and in such cases resulting injuries are the proper subject for compensation. Martin v. Free Service Tire Co., 189 Tenn. 327, 225 S.W.2d 249, 1949 Tenn. LEXIS 433 (1949).

Where a collector of accounts used his own car to service his accounts with expenses paid by his employer, and, with the knowledge of at least his immediate superior, he often worked beyond 5:30 p.m., it was held that an injury suffered by him from an accident occurring after he had detoured to eat supper with his brother-in-law was an accident arising out of and in the course of his employment. Martin v. Free Service Tire Co., 189 Tenn. 327, 225 S.W.2d 249, 1949 Tenn. LEXIS 433 (1949).

If employee makes trip for benefit of his employer, he is within the scope of his employment while going to and returning from trip, but if trip is for benefit of employee he is not within the scope of his employment while going to and returning from trip. Lumbermen's Mut. Cas. Co. v. Dedmon, 196 Tenn. 94, 264 S.W.2d 567, 1951 Tenn. LEXIS 358 (1951).

A lumber inspector on 24 hour call, who stayed in hotels overnight, who was struck by a car one evening while returning from a personal errand to sportsman shop located across the street from restaurant where he normally ate, was not covered by act, since detour for personal benefit had not been completed at the time of the accident. Lumbermen's Mut. Cas. Co. v. Dedmon, 196 Tenn. 94, 264 S.W.2d 567, 1951 Tenn. LEXIS 358 (1951).

When the duties of an employee require travel, injuries received as a result of hazards to travel are compensable. Gregory v. Porter, 204 Tenn. 582, 322 S.W.2d 591, 1959 Tenn. LEXIS 312 (1959); West Tennessee Nix-A-Mite Systems, Inc. v. Funderburk, 208 Tenn. 381, 346 S.W.2d 250, 1961 Tenn. LEXIS 296 (1961).

Injury received by traveling employee during detour for personal mission is not compensable. Gregory v. Porter, 204 Tenn. 582, 322 S.W.2d 591, 1959 Tenn. LEXIS 312 (1959).

Where traveling employee was injured while driving employer's automobile and returning to city of residence and employment by one of two alternate routes after completing business mission for employer, injury was compensable in absence of evidence to rebut presumption that he was on a business errand. Gregory v. Porter, 204 Tenn. 582, 322 S.W.2d 591, 1959 Tenn. LEXIS 312 (1959).

An unauthorized deviation may preclude recovery of compensation for an injury caused by an added peril to which the employee is exposed during the deviation, but the compensability of an injury occurring after the deviation has ended and the employee is again in the course of his employment is not ordinarily affected thereby. West Tennessee Nix-A-Mite Systems, Inc. v. Funderburk, 208 Tenn. 381, 346 S.W.2d 250, 1961 Tenn. LEXIS 296 (1961).

Evidence that truck driver was killed in traffic accident after resuming trip after deviation to obtain money for food and gasoline which employer had not provided was sufficient to establish that accident arose out of and in course of employment. West Tennessee Nix-A-Mite Systems, Inc. v. Funderburk, 208 Tenn. 381, 346 S.W.2d 250, 1961 Tenn. LEXIS 296 (1961).

Where a trip is undertaken by both the employer and the employee, the service of the employer must at least be a concurrent cause of the trip. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965).

Where the employee is engaged in travel which is not ordinarily within the scope of his employment, the relationship of the accident to the injury is an essential point of inquiry, with the question being whether the employer exposed the employee to the risk. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965).

Where a private purpose and a service of the employer coexist, the facts must permit the inference that the journey would have been made even though the private purpose had been abandoned, the test being whether it was the employment or something else that impelled the journey and exposed the traveler to its risks. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965).

Recently transferred employee of finance company who was killed in automobile accident while being taken around his territory by his employer's manager to familiarize him with the different places he would have to go in making collections was acting in course and scope of employment at time of death. American Plan Corp. v. Mecredy, 223 Tenn. 183, 443 S.W.2d 453, 1969 Tenn. LEXIS 401, 1969 Tenn. LEXIS 402 (1969).

Where employee was killed in motor vehicle accident in employer's truck while returning to his home by usual and best route after having serviced equipment of employer's customers, his widow was entitled to death benefits even though his activities were unaccounted for, for seven hours after having serviced last customer and alcohol content in his blood was sufficient to evidence intoxication since employee had resumed his duty and was on way home at time of accident and there was no evidence to show that intoxication was cause of accident. Gentry v. Lilly Co., 225 Tenn. 708, 476 S.W.2d 252, 1971 Tenn. LEXIS 332 (1971); Herron v. Fletcher, 503 S.W.2d 84, 1973 Tenn. LEXIS 428 (Tenn. 1973).

A traveling employee is generally considered to be in the course of his or her employment continuously during the duration of the entire trip, except when there is a distinct departure on a personal errand. Thus, the injury or death of a traveling employee that occurred while the employee was reasonably engaged in a reasonable recreational or social activity arose out of and in the course of employment. McCann v. Hatchett, 19 S.W.3d 218, 2000 Tenn. LEXIS 233 (Tenn. 2000).

104. —Injuries within Scope of Employment — Examples.

Two employees were dipping chairs; the tank being empty, the foreman ordered one to bring wax and fill it. The other, without direct order or being forbidden to assist the other employee, joined in filling the tank, which would enable both to resume their regular work sooner. The task undertaken was not hazardous and the assisting employee did not go out of the scope of his employment and compensation was proper. Milne v. Sanders, 143 Tenn. 602, 228 S.W. 702, 1920 Tenn. LEXIS 48 (1921).

Where an employee acted with specific intent to recover property wrongfully taken from his employer, though with motive or purpose to take the property to his home for his own use, a causal connection between his employment and his death which resulted from the act is sufficiently established to show the death to have arisen out of his employment in asserting the authority of employer. Chamber of Commerce v. Turner, 158 Tenn. 323, 13 S.W.2d 318, 1928 Tenn. LEXIS 156 (1929).

The risk of an employee, who was a collector of money, of being attacked on his route for robbery is a risk of employment where the attack is occasioned by the nature of the employment. Porter v. Travelers' Ins. Co., 163 Tenn. 526, 43 S.W.2d 1066, 1931 Tenn. LEXIS 144 (1931).

Provisions contained in a compensation policy making it applicable to injuries to employees while engaged in operation necessary, incident, appurtenant thereto, or connected therewith, and in the scope of general contractor engaged in building and repairing houses, include painting as an operation that comes within the coverage of the policy. Welch v. Reiling, 170 Tenn. 698, 99 S.W.2d 216, 1936 Tenn. LEXIS 51 (1936).

“Arising out of employment” refers to origin of injury, and injury from automobiles is a hazard of a policeman's duties, and where a policeman was injured while on duty by an automobile driven by a drunken driver, there was a causal connection between conditions under which work was required to be done and the injury, and the injury arose out of the employment. Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804, 1937 Tenn. LEXIS 16 (1938).

An employee of American Red Cross who was drowned while doing rescue work during a flood met with an accidental death arising out of and in the course of his employment. American Red Cross v. Hinson, 173 Tenn. 667, 122 S.W.2d 433, 1938 Tenn. LEXIS 52 (1938).

Worker who was primarily employed as a stockroom clerk but who performed any duties which he was called upon to do and who was injured while helping repair a truck on the highway at the request of another employee suffered an injury “arising out of and in the course of employment.” Templeton v. Wilson, 174 Tenn. 65, 123 S.W.2d 824, 1938 Tenn. LEXIS 64 (1939).

A laborer employed by the city water and light department whose duties included attending large fires and cooperating with the fire department at such fires who was killed when the wall of a building fell on him at such a fire while he was engaged in playing a fire hose on the fire after two firemen were burned and had to leave was killed as the result of an accident arising out of and in the course of his employment. Travelers Ins. Co. v. Dudley, 180 Tenn. 191, 173 S.W.2d 142 (1943).

Deceased's injuries, sustained by an accident while he was on duty and carrying out the orders of the superior in keeping trespassers off of his employer's property, arose out of and in consequence of his employment. United States Fidelity & Guaranty Co. v. Barnes, 182 Tenn. 400, 187 S.W.2d 610, 1945 Tenn. LEXIS 233 (1945).

The construction of the driveway was incident to a bottling business since driveway was being made for the purpose of furthering that business, and it was not a separate business enterprise of the employer. Mashburn v. Ne-Hi Bottling Co., 191 Tenn. 135, 229 S.W.2d 520, 1950 Tenn. LEXIS 495 (1950), rehearing denied, 191 Tenn. 135, 232 S.W.2d 11, 1950 Tenn. LEXIS 557 (1950).

Where worker was killed by lightning while working on road on which there was much road machinery made out of metal, such death grew out of his employment. Oman Constr. Co. v. Hodge, 205 Tenn. 627, 329 S.W.2d 842, 1959 Tenn. LEXIS 402 (1959).

Where truck driver took his lunch break, between the unloading and reloading of his truck, at a time convenient for the employer, and when returning to the truck cab with a carry-out lunch, he was shot by two or three assailants, such injury occurred in the course of employment. Hudson v. Thurston Motor Lines, Inc., 583 S.W.2d 597, 1979 Tenn. LEXIS 448 (Tenn. 1979).

Injury arose out of and in the course of employment, where the victim was assaulted by one who, upon learning that the victim was employed by the same company that employed the assailant's girlfriend, became enraged over the victim's presence at a late night sales meeting also attended by the girlfriend. Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

Evidence supported the conclusion that an employee had suffered mental injuries that arose out of and had occurred in the course of his employment as a truck driver when he came into contact with hazardous liquid labeled “radioactive” that he was transporting for disposal in Utah, and he was 100 percent permanently disabled. Saylor v. Lakeway Trucking, Inc., 181 S.W.3d 314, 2005 Tenn. LEXIS 1035 (Tenn. 2005).

Finding that the employee's workers'  compensation claim was compensable was appropriate pursuant to T.C.A. §§ 50-6-102 and 50-6-241(d)(1)(A) in that he was subjected to a higher risk of injury from the tornado because of his employment than the general public would have had. Accordingly, his injury arose out of his employment. Dixon v. Travelers Indem. Co., 336 S.W.3d 532, 2011 Tenn. LEXIS 188 (Tenn. Mar. 3, 2011).

105. —Aggravation of Condition, Weakness or Disease.

An underlying condition of asthma and bronchitis, caused by heavy smoking over decades, did not arise prior to employment and did not arise out of or in the course of employment, but rather it developed during employment. Thus, where the disability, such as that resulting from exposure to industrial pollutants, arose out of and in the course of employment, the general rule of aggravation applied, providing for liability for disability which was the result of the activation or aggravation of a preexisting weakness, condition or disease brought about by the occupation. Arnold v. Firestone Tire & Rubber Co., 686 S.W.2d 65, 1984 Tenn. LEXIS 910 (Tenn. 1984).

106. —Carpal Tunnel Syndrome.

Where twenty-eight year old certified registered nurse suffered from carpal tunnel syndrome which decreased her strength by approximately 75%, caused her to suffer daily pain in her hands, and required her to modify her lifestyle, she suffered a compensable injury to each arm. Story v. Legion Ins. Co., 3 S.W.3d 450, 1999 Tenn. LEXIS 434 (Tenn. 1999).

There is no iron-clad rule which calls for payment of benefits to an employee who is disabled from a heart attack while on the employer's premises and for denial of benefits to an employee who is disabled from a heart attack that occurs while the employee is on the way home from work. Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 2004 Tenn. LEXIS 173 (Tenn. 2004).

In order to recover when there is no physical exertion, but there is emotional stress, worry, shock, or tension, the heart attack must be immediately precipitated by a specific acute or sudden stressful event, rather than generalized employment conditions; thus, if a worker's heart attack is caused by a mental or emotional stimulus rather than physical exertion or strain, there must be a climatic event or series of incidents of an unusual or abnormal nature if a recovery is to be permitted. Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 2004 Tenn. LEXIS 173 (Tenn. 2004).

Tennessee's heart attack cases can be categorized into two groups: those that are precipitated by physical exertion or strain, and those resulting from mental stress, tension, or some type of emotional upheaval; if the heart attack results from physical exertion or strain, it is unnecessary that there be extraordinary exertion or unusual physical strain. Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 2004 Tenn. LEXIS 173 (Tenn. 2004).

Res judicata barred an employee's second suit because the employee's right carpal tunnel syndrome was not a new injury; at the time that a left carpal tunnel release surgery was performed in 2003, carpal tunnel syndrome was also found on the right and when the employee filed her first lawsuit, she sought compensation, in part, for the carpal tunnel injury to her right upper extremity and received a vocational disability of 9.87% to the right upper extremity. Barnett v. Milan Seating Sys., 215 S.W.3d 828, 2007 Tenn. LEXIS 38 (Tenn. 2007), superseded by statute as stated in, Meeks v. Hartford Ins. Co., — S.W.3d —, 2010 Tenn. LEXIS 716 (Tenn. Aug. 30, 2010), superseded by statute as stated in, Tomlinson v. Zurich Am. Ins., — S.W.3d —, 2010 Tenn. LEXIS 713 (Tenn. Aug. 30, 2010), superseded by statute as stated in, Jenkins v. Yellow Transp., Inc., — S.W.3d —, 2011 Tenn. LEXIS 344 (Tenn. Apr. 13, 2011), superseded by statute as stated in, House v. YRC, Inc., — S.W.3d —, 2012 Tenn. LEXIS 413 (Tenn. June 22, 2012), superseded by statute as stated in, Raines v. Vought Aircraft Indus., Inc., — S.W.3d —, 2012 Tenn. LEXIS 505 (Tenn. Aug. 17, 2012), superseded by statute as stated in, Freeman v. GM Co., — S.W.3d —, 2012 Tenn. LEXIS 750 (Tenn. Oct. 22, 2012).

Evidence preponderated against trial court's finding that carpal tunnel syndrome arose out of employee's employment where medical records failed to link employee's carpal tunnel syndrome to any work associated with employer; lay testimony, without support of medical evidence, was insufficient to establish casual relationship between employee's work activities with employer. Crew v. First Source Furniture Group, 259 S.W.3d 656, 2008 Tenn. LEXIS 418 (Tenn. June 24, 2008).

107. —Injuries Not within Scope of Employment — Examples.

There must be a causal relation between the employment and the injury, but carrying a shotgun borrowed for personal use was not so related to duty of petitioner as cashier of a bank carrying by automobile a deposit to the bank, where gun's accidental discharge caused the injury. Hendrix v. Franklin State Bank, 154 Tenn. 287, 290 S.W. 30, 1926 Tenn. LEXIS 125 (1926).

Death of night watchman of ice company from electric shock was not compensable where manner of contact with current was unknown but it appeared likely that he could have come into contact therewith only by climbing up transformer tower to height of ten feet where the duties of his employment did not require him to be, general instructions of company to employees being to avoid machinery and electrical apparatus in the plant. Home Ice Co. v. Franzini, 161 Tenn. 395, 32 S.W.2d 1032, 1930 Tenn. LEXIS 18 (1930).

Petitioner was regularly employed in a firm's repair shop, but was injured while at work in repairing the house of one of the partners, in which house the firm was not interested and for which work it received nothing. Such injury did not arise out of his employment by the firm. Elliott v. Elliott Bros., 165 Tenn. 23, 52 S.W.2d 144, 1931 Tenn. LEXIS 166 (1932).

In a suit to recover compensation for the accidental death of a driver salesman of a bottling company, who was shot after he entered a lunchroom in the course of his employment, by a holdup man who was robbing the place, complainant cannot recover in the absence of a showing of causal connection between the nature of the employee's employment and his injury which resulted in death, since walking in on a holdup cannot be a peculiar danger to which his employment exposed him. Scott v. Shinn, 171 Tenn. 478, 105 S.W.2d 103, 1937 Tenn. LEXIS 127 (1937).

Where a rural grocery salesman suffered a broken leg on the front steps of his home while returning from his route and where it had been suggested by his superiors that he have his orders written up at home by some member of his family due to the illegibility of his own writing and where it was his intent to have the day's orders so written up upon arriving home but where the evidence showed that the only interest of the company in having the orders written up at home was to insure the legibility of such orders, such injury did not arise out of and in the course of the employment within the meaning of the statute. Jellico Grocery Co. v. Hendrickson, 172 Tenn. 148, 110 S.W.2d 333, 1937 Tenn. LEXIS 64 (1937).

Sawyer's helper who was not required to do any sawing and who was injured while operating saw could not recover compensation as injury resulted from an act which had no causal connection with the employment. Davis v. Wabash Screen Door Co., 185 Tenn. 169, 204 S.W.2d 87, 1947 Tenn. LEXIS 316 (1947).

Where the employer is not a contractor or builder, injuries received by an employee on a construction project not an incident of or related to the real business of the employer, are not within the scope of the employee's employment, and so not compensable under the statute, but this rule is not to be extended to regular and general employees about a plant in connection with its usual business who happen to be at the time of the accident engaged, at the direction and under the supervision of the company's managers, on work of a repair or construction character. Mashburn v. Ne-Hi Bottling Co., 191 Tenn. 135, 229 S.W.2d 520, 1950 Tenn. LEXIS 495 (1950), rehearing denied, 191 Tenn. 135, 232 S.W.2d 11, 1950 Tenn. LEXIS 557 (1950).

Where decedent died of a heart attack in bed at his home more than 12 hours after he left work, although he complained of pains in his arm while at work and was given pills by the company doctor, there was no showing that the death arose out of his employment. Hagewood v. E.I. Du Pont De Nemours & Co., 206 Tenn. 239, 332 S.W.2d 660, 1960 Tenn. LEXIS 516 (1960).

Where death of decedent resulted from heart attack and on the morning of the attack he complained of indigestion before he went to work and after arriving at his place of work did not actually perform any of his duties but went to the first aid station to obtain something for a cold and indigestion and returned and lay down on his work bench and thereafter died it could not be said that his death was the result of an accident growing out of and in the course of his employment. Jakes v. Union Carbide Nuclear Co., 206 Tenn. 466, 334 S.W.2d 720, 1960 Tenn. LEXIS 384 (1960).

Where evidence supported findings of trial court that employee's fall resulted from failure of his leg to respond as a result of an idiopathic attack and that condition of steps on which employee fell did not contribute to the fall but that fall would have occurred whether or not he was on the steps, no hazard incident to the employment was shown as the immediate cause of the injury so that injury did not arise out of the employment. Greeson v. American Lava Corp., 216 Tenn. 461, 392 S.W.2d 931, 1965 Tenn. LEXIS 591 (1965).

Where construction workers were working in a city other than their regular location and were paid a specified additional sum per day for living expenses but such employees were free to commute between their home and the location of their work or to room at any facility available where the work was located and still receive the same additional daily compensation, death resulting from asphyxiation at their place of lodging did not arise out of and in the course of employment. Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765, 1966 Tenn. LEXIS 617, 1966 Tenn. LEXIS 618 (1966), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Where the record as a whole inescapably indicated that worker's death was caused by “the inexorable march” of heart disease, his death would not be considered as accidental nor to arise out of his employment merely because he suffered a preliminary seizure during working hours. Bowman v. Smith-Built Homes, Inc., 221 Tenn. 102, 424 S.W.2d 801, 1967 Tenn. LEXIS 358 (1967).

Where the accident and injury resulted from the act of appellee “goosing” another employee in the ribs which was contrary to an order of his foreman, the accident and injury did not arise out of the employment. Insurance Co. of America v. Hogsett, 486 S.W.2d 730, 1972 Tenn. LEXIS 330 (Tenn. 1972).

Findings of fact, taken together with all other circumstances, adequately supported the trial court's legal conclusions that appellant was not at the time of her injury using a route required or furnished by her employer, and that her injuries did not therefore arise out of and in the course of her employment. Harper v. Daun Ray Casuals, Inc., 596 S.W.2d 822, 1980 Tenn. LEXIS 432 (Tenn. 1980), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Although risk of assault or robbery was an inherent part of employment of a route salesman for a soft drink distributor, injury which occurred when the employee left the scene of an assault and attempted robbery, at which nothing belonging to the employer was taken, to search for the assailants' car was not within the scope of or arising out of the employment. Alder v. Mid-South Beverages, Inc., 783 S.W.2d 544, 1990 Tenn. LEXIS 35 (Tenn. 1990).

108. —Positional Risk Doctrine.

The court rejected the positional risk doctrine which provides that compensation is allowed whenever the injury occurred because the employment required the claimant to occupy what turned out to be a place of danger. Hall v. Mason Dixon Lines, Inc., 743 S.W.2d 148, 1987 Tenn. LEXIS 1035 (Tenn. 1987).

109. —Street Risk Doctrine.

The correct focus in assault cases involves a consideration of the risks and dangers inherent in the employment. An employee need only show that an assault has a rational, causal connection to the employment in order to establish the injury arose out of the employment. To establish this causal connection, workers whose employment exposes them to the hazards of the street, or who are assaulted under circumstances that fairly suggest they were singled out for attack because of their association with their employer, are entitled to establish this causal connection with the aid of the street risk doctrine. Braden v. Sears, Roebuck & Co., 833 S.W.2d 496, 1992 Tenn. LEXIS 537 (Tenn. 1992).

Worker who was attacked while engaged in removing his route sheet from the back of a van was engaged in an activity that furthered his employer's business, and his injuries were sustained in the course of his employment, even though the attack occurred at a time when the worker was not “on the clock” and at a place, his home, removed from the work environment. Braden v. Sears, Roebuck & Co., 833 S.W.2d 496, 1992 Tenn. LEXIS 537 (Tenn. 1992).

110. —Practice and Procedure.

111. — —Necessary Allegations.

In all compensation cases the petitioner must allege sufficient facts to warrant a reasonable inference, prima facie at least, that the injuries sustained arose out of and in the course of the employment. Farris v. Yellow Cab Co., 189 Tenn. 46, 222 S.W.2d 187, 1949 Tenn. LEXIS 397 (1949).

Complaint which alleged that employee died from bullet wounds sustained while sitting in his taxicab at 1:00 a.m. failed to state a cause of action since facts stated raised more than one reasonable inference as to cause of death. Farris v. Yellow Cab Co., 189 Tenn. 46, 222 S.W.2d 187, 1949 Tenn. LEXIS 397 (1949).

Pleadings in compensation proceedings must be sufficient to advise employer as to nature of claim asserted. Ledford v. Miller Bros. Co., 194 Tenn. 467, 253 S.W.2d 552, 1952 Tenn. LEXIS 405 (1952).

Petition for compensation based on fall when leg collapsed due to condition of phlebitis as result of prior injury while working for the same employer stated a cause of action, though present hazard incident to employment was not clearly set forth, as evidence to such hazard would be admissible on trial. Workman v. General Shoe Corp., 196 Tenn. 290, 265 S.W.2d 883, 1954 Tenn. LEXIS 377 (1954).

112. — —Burden of Proof.

In a suit for the death of an employee in an oil room fire, claimed by the employer to have been intentionally started by a fellow servant to burn the injured employee, the plaintiffs, by proving that the fire suddenly appeared when a lighted match was thrown into the room, shifted the burden to the employer to prove that the fire was intentionally started. Milne v. Sanders, 143 Tenn. 602, 228 S.W. 702, 1920 Tenn. LEXIS 48 (1921).

Burden of showing death from accident arising out of and in course of employment is not sustained by proof that coal miner died from rupture of branch of one of coronary or anterior arteries of heart which might have taken place under any circumstances. Battle Creek Coal & Coke Co. v. Martin, 155 Tenn. 34, 290 S.W. 18, 1926 Tenn. LEXIS 16 (1927).

The burden of proof is on the petitioner to show that his injury arose out of and in the course of his employment. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928); Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717, 1928 Tenn. LEXIS 177 (1929); Home Ice Co. v. Franzini, 161 Tenn. 395, 32 S.W.2d 1032, 1930 Tenn. LEXIS 18 (1930); McBrayer v. Dixie Mercerizing Co., 178 Tenn. 135, 156 S.W.2d 408, 1941 Tenn. LEXIS 41 (1941); Patton v. L. O. Brayton & Co., 184 Tenn. 592, 201 S.W.2d 981, 1947 Tenn. LEXIS 281 (1947); Davis v. Wabash Screen Door Co., 185 Tenn. 169, 204 S.W.2d 87, 1947 Tenn. LEXIS 316 (1947); Kellon v. American Bakeries Co., 210 Tenn. 184, 357 S.W.2d 56, 1962 Tenn. LEXIS 422 (1962).

If upon undisputed proof it is conjectural whether death resulted from a cause operating within the employment or a cause operating without the employment, there can be no award to the employee's dependents. Hagewood v. E.I. Du Pont De Nemours & Co., 206 Tenn. 239, 332 S.W.2d 660, 1960 Tenn. LEXIS 516 (1960).

In order to recover the claimant is obligated to prove: (1) that he is an employee; (2) that he sustained an accidental injury; and (3) that such accident and injury grew out of and in the course of his regular employment. Federated Mut. Implement & Hardware Co. v. Shoemaker, 211 Tenn. 523, 366 S.W.2d 129, 1963 Tenn. LEXIS 377 (1963).

In order for an employee to recover he must prove that he is an employee, that he sustained an accidental injury, that such accident and injury grew out of and in course of his employment and that he gave notice to his employer either in writing or in person. Smith v. Tennessee Furniture Industries, Inc., 212 Tenn. 291, 369 S.W.2d 721, 1963 Tenn. LEXIS 423 (1963).

Burden was on compensation claimant to prove a causal relation between industrial injury of her husband and his death nearly two years later. Neas v. Snapp, 221 Tenn. 325, 426 S.W.2d 498, 1968 Tenn. LEXIS 468 (1968).

Because the physicians who opined that the employee's neck and shoulder injury were caused by the accident that occurred on July 14, 2008, had an incomplete picture of the condition of the employee's neck and shoulder prior to that accident, and because the orthopedic surgeon, who was the only physician with knowledge of the pre-accident state of the employee's left shoulder, found that the post-accident MRI was entirely consistent with the normal progression of the condition he had previously treated the employee for from 2006 through 2008, the employee failed to sustain his burden of proof that a work-related activity was the cause of his injuries, and he was not entitled to receive permanent partial disability benefits. Johnson v. Express Am. Trucking, Inc., — S.W.3d —, 2015 Tenn. LEXIS 176 (Tenn. Mar. 3, 2015), aff'd, — S.W.3d —, 2015 Tenn. LEXIS 175 (Tenn. Mar. 3, 2015).

113. — —Rules of Evidence.

The rules as to hearsay evidence and res gestae apply. Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717, 1928 Tenn. LEXIS 177 (1929); Patton v. L. O. Brayton & Co., 184 Tenn. 592, 201 S.W.2d 981, 1947 Tenn. LEXIS 281 (1947).

114. — —Summary Judgment.

A workers' compensation appeal from a summary judgment is not controlled by the material evidence rule; it is governed by Tenn. R. Civ. P. 56. Blocker v. Regional Medical Center, 722 S.W.2d 660, 1987 Tenn. LEXIS 815 (Tenn. 1987).

115. — —Doubts Resolved in Favor of Employee.

Any reasonable doubt as to whether the act or injury of the employee arose out of the employment should be resolved in favor of the employee or dependent. Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977, 1951 Tenn. LEXIS 374 (1951).

Generally, an injury arises out of and in the course of the employment if it has a rational causal connection to the work and occurs while the employee is engaged in the duties of his employment; and, any reasonable doubt as to whether an injury “arose out of the employment” is to be resolved in favor of the employee. Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977, 1951 Tenn. LEXIS 374 (1951); Great American Indem. Co. v. Friddell, 198 Tenn. 360, 280 S.W.2d 908, 1955 Tenn. LEXIS 381 (1955); Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

116. — —Inferences of Fact.

Where an employee is found dead at his post of labor, without direct evidence as to the manner of his death, an inference may arise of an accident springing out of and in the course of his employment. Tennessee Chemical Co. v. Smith, 145 Tenn. 532, 238 S.W. 97, 1921 Tenn. LEXIS 93 (1922); Tennessee Eastman Corp. v. Russell, 150 Tenn. 331, 265 S.W. 540, 1924 Tenn. LEXIS 8 (1924); Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928); Home Ice Co. v. Franzini, 161 Tenn. 395, 32 S.W.2d 1032, 1930 Tenn. LEXIS 18 (1930).

Theory of employees being injured while engaged in theft must be supported by more than inference. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928).

Where an employee was killed in a vehicle which he was employed to drive and there was no suggestion that he was going on any personal mission, there may arise an inference that his death arose out of and in the course of his employment. Kennedy v. Columbian Casualty Co., 163 Tenn. 312, 43 S.W.2d 201, 1931 Tenn. LEXIS 118 (1931).

The mere presence at the place of injury because of employment will not result in the injury's being considered as arising out of the employment. Thornton v. RCA Service Co., 188 Tenn. 644, 221 S.W.2d 954, 1949 Tenn. LEXIS 384 (1949).

Where petitioner alleged that her husband, a cab driver, was killed by some unknown person while sitting in his cab at a regular cab stand, a demurrer to the petition was properly sustained upon the ground that the petition stated no fact or circumstance from which it could be reasonably inferred that the killing was an accident which arose out of and in the course of the cab driver's employment. Farris v. Yellow Cab Co., 189 Tenn. 46, 222 S.W.2d 187, 1949 Tenn. LEXIS 397 (1949).

There is no presumption, prima facie case or reasonable inference that workers' compensation claimant's decedent, allegedly healthy was killed in an accident arising out of his employment on the fact alone that he was found dead at his post of duty, where no physical exertion to any extent is shown. Wilson v. St. Louis Terminal Distributing Co., 198 Tenn. 171, 278 S.W.2d 681, 1955 Tenn. LEXIS 359 (1955).

A presumption may arise that an accidental injury received by an employee arose out of and in the course of employment, as where the employee is found injured or dead under circumstances indicating that injury or death occurred within the time or space limitations of the employment, but such presumption is rebuttable and disappears on the introduction of evidence to the contrary. Crane Rental Service v. Rutledge, 219 Tenn. 433, 410 S.W.2d 418, 1966 Tenn. LEXIS 542 (1966).

The rule that death at the post of labor is presumed to have resulted from the employment may not be relied upon to support a theory of accidental injury which in light of the evidence is conjectural. Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968).

Mere fact that employee who suffered heart attack on street while attending union convention was subject to be called to duty 24 hours a day would not raise a presumption that his heart attack arose out of and in course of his employment. Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968).

117. — —Conjecture.

Conjectures as to cause of death are insufficient to support finding that death of coal miner was due to accident arising out of and in course of his employment within this act. Battle Creek Coal & Coke Co. v. Martin, 155 Tenn. 34, 290 S.W. 18, 1926 Tenn. LEXIS 16 (1927).

If upon undisputed proof it is conjectural whether the death resulted from a cause operating within his employment, there can be no award. Home Ice Co. v. Franzini, 161 Tenn. 395, 32 S.W.2d 1032, 1930 Tenn. LEXIS 18 (1930); Graybeal v. Smith, 189 Tenn. 412, 225 S.W.2d 556, 1949 Tenn. LEXIS 447 (1949).

A finding that death was occasioned by an accident arising out of and in the course of employment cannot be based on mere conjecture or speculation. McBrayer v. Dixie Mercerizing Co., 178 Tenn. 135, 156 S.W.2d 408, 1941 Tenn. LEXIS 41 (1941).

If the cause of the accident and injury is a matter of speculation it is not compensable. McCann Steel Co. v. Carney, 192 Tenn. 94, 237 S.W.2d 942, 1951 Tenn. LEXIS 386 (1951).

Compensation will not be awarded where cause of death is a matter of speculation. Neas v. Snapp, 221 Tenn. 325, 426 S.W.2d 498, 1968 Tenn. LEXIS 468 (1968).

If, upon undisputed proof it is conjectural as to whether death resulted from a cause operating within decedent's employment or a cause operating without his employment, there can be no award. Neas v. Snapp, 221 Tenn. 325, 426 S.W.2d 498, 1968 Tenn. LEXIS 468 (1968).

A workers' compensation award cannot be based upon conjecture. It must be based on material evidence. La-Z-Boy Chair Co. v. Reed, 778 F. Supp. 954, 1990 U.S. Dist. LEXIS 19446 (E.D. Tenn. 1990), aff'd, 936 F.2d 573, 1991 U.S. App. LEXIS 19988 (6th Cir. Tenn. 1991).

118. Scope of Review by Supreme Court.

The 1985 amendment to T.C.A. § 50-6-225 replaced the “material evidence” standard of review with a new standard, that of de novo review upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Alley v. Consolidation Coal Co., 699 S.W.2d 147, 1985 Tenn. LEXIS 562 (Tenn. 1985).

119. Disability — What Constitutes.

In determining work disability as distinguished from clinical disability, the trial judge may consider the employee's job skills, education and training, duration of disability and job opportunities for the disabled. Trane Co. v. Morrison, 566 S.W.2d 849, 1978 Tenn. LEXIS 557 (Tenn. 1978).

120. Tort Law.

Although concepts of tort law, such as the “rescue” doctrine applicable to negligence cases may be helpful, they are not controlling in the workers' compensation field. Hall v. Mason Dixon Lines, Inc., 743 S.W.2d 148, 1987 Tenn. LEXIS 1035 (Tenn. 1987).

121. Notice Period.

Trial court had not erred in finding that a sole proprietor had coverage under his workers'  compensation policy and was entitled to benefits because he had substantially complied with the non-mandatory thirty-day waiting period in T.C.A. § 50-6-102 where the insured fully completed the I-4 form and his insurance agent sent it to the department, which stamped it as received; the insured had also filled out a policy application, paid a deposit premium, had his agent submit the application to the insurer, and received temporary evidence of coverage in the form of a binder letter. Scheele v. Hartford Underwriters Ins. Co., 218 S.W.3d 636, 2007 Tenn. LEXIS 136 (Tenn. 2007).

Supreme court of Tennessee has established no bright-line rule to measure substantial compliance with a workers'  compensation notice provision of T.C.A. § 50-6-102; the question as to whether there has been a sufficient compliance depends on the facts of the individual cases. Scheele v. Hartford Underwriters Ins. Co., 218 S.W.3d 636, 2007 Tenn. LEXIS 136 (Tenn. 2007).

Supreme court of Tennessee found the thirty-day notice requirement of T.C.A. § 50-6-102 directory, not mandatory; a sole proprietor's substantial compliance with the statute's thirty-day notice requirement is legally sufficient. Scheele v. Hartford Underwriters Ins. Co., 218 S.W.3d 636, 2007 Tenn. LEXIS 136 (Tenn. 2007).

Collateral References.

Application of the “mutual benefit” doctrine to workers'  compensation cases. 11 A.L.R.6th 351.

Compensability under occupational disease statutes of emotional distress or like injury suffered by claimant as result of nonsudden stimuli. 113 A.L.R.5th 115.

Employee's injuries sustained in use of employer's restroom as covered by workers' compensation. 80 A.L.R.5th 417.

Employee's operation of employer's vehicle outside regular working hours as within scope of employment. 51 A.L.R.2d 120.

Injury while crossing or walking along railroad or street railway tracks, going to or from work, as arising out of and in the course of employment. 50 A.L.R.2d 363.

Presumption or inference that accidental death of employee engaged in occupation of manufacturing or processing arose out of and in course of employment. 47 A.L.R.5th 801.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Compensability under particular circumstances. 108 A.L.R.5th 1.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Requisites of, and factors affecting, compensability. 106 A.L.R.5th 111.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Right to compensation under particular statutory provisions. 97 A.L.R.5th 1.

Right to workers'  compensation for injury suffered by worker en route to or from worker's home where home is claimed as “work situs.”. 15 A.L.R.6th 633.

Right to workers'  compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli — Compensability under particular circumstances. 39 A.L.R.6th 445.

Right to workers'  compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli — Requisites of, and factors affecting, compensability. 13 A.L.R.6th 209.

Right to workers' compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli — Right to compensation under particular statutory provisions. 122 A.L.R.5th 653.

Right to workers' compensation for physical injury or illness suffered by claimant as result of sudden mental stimuli — Compensability under particular circumstances. 107 A.L.R.5th 441.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden stimuli involving nonpersonnel action — Compensability under particular circumstances. 84 A.L.R.5th 249.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden stimuli involving nonpersonnel action-right to compensation under particular statutory provisions and requisites of, and factors affecting, compensability. 83 A.L.R.5th 103.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden emotional stimuli involving personnel action. 82 A.L.R.5th 149.

Right to workers' compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli — Compensability of particular physical injuries or illnesses. 112 A.L.R.5th 509.

Right to workers' compensation for physical injury or illness suffered by claimant as result of sudden mental stimuli — Right to compensation under particular statutory provisions and requisites of, and factors affecting, compensability. 109 A.L.R.5th 161.

Sufficiency of proof that cancer resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 384.

Sufficiency of proof that cardiovascular or respiratory condition resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 401.

Sufficiency of proof that condition of skin or sensory organ resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 446.

Sufficiency of proof that digestive condition resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 360.

Sufficiency of proof that hernia resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 434.

Sufficiency of proof that mental or neurological condition complained of resulted from accident or incident in suit rather than preexisting condition. 2 A.L.R.3d 487.

Sufficiency of proof that musculoskeletal condition resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 290.

Sufficiency of proof that urogenital condition resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 464.

Workers' compensation as precluding employee's suit against employer for sexual harassment in the workplace. 51 A.L.R.5th 163.

Workers' compensation: coverage of employee's injury or death from exposure to the elements — modern cases. 20 A.L.R.5th 346.

Workers' compensation: law enforcement officer's recovery for injury sustained during exercise or physical recreation activities. 44 A.L.R.5th 569.

Workers' compensation: Lyme disease. 22 A.L.R.5th 246.

Workmen's compensation: injury sustained while attending employer-sponsored social affair as arising out of and in the course of employment. 47 A.L.R.3d 566.

NOTES TO DECISIONS

1. Injuries Covered.

Granting summary judgment as to whether an employer was liable for the cost of a knee replacement was error where the medical evidence created a genuine issue of material fact as to whether the employee's need for the replacement was caused by earlier compensable injuries. Federated Rural Elec. Ins. Exch. v. Hill, — S.W.3d —, 2010 Tenn. LEXIS 1228 (Tenn. Oct. 7, 2010), aff'd, Federated Rural Elec. Ins. Exch. v. Hill, — S.W.3d —, 2010 Tenn. LEXIS 1208 (Tenn. Dec. 21, 2010).

Evidence supported a trial court's decision that the decedent's illness and death arose out of his employment as a mechanic where the treating physicians, which included specialists in infectious disease, internal medicine, pulmonary medicine and critical care, opined that his death, more likely than not, was due to workplace exposure, the decedent reported breathing in grout and epoxy type substances at work prior to his illness, and lay witnesses confirmed dusty work conditions and a rapid decline in the decedent's health. Holbert v. JBM Inc., — S.W.3d —, 2017 Tenn. LEXIS 709 (Tenn. Nov. 1, 2017).

In a case in which the employee orally informed her supervisor that she was quitting and fell on her way out of the store, the employee was entitled to workers'  compensation benefits as the employee remained covered by the workers'  compensation statutes during the time that she was leaving the work site because the injury occurred within a reasonable time after termination of her employment, and because walking to the door of the convenience store to exit the workplace was a normal incident of the employment relation. Duck v. Cox Oil Co., — S.W.3d —, 2017 Tenn. LEXIS 734 (Tenn. Nov. 21, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 735 (Tenn. Nov. 21, 2017).

Employee whose employment is terminated remains covered by the Workers'  Compensation statutes for a reasonable period of time for the employee to effectuate the termination of employment, such as by gathering belongings and exiting the workplace. That holding is a natural extension of the Tennessee cases holding that injuries incurred before an employee's work shift begins or after it ends may be compensable. Duck v. Cox Oil Co., — S.W.3d —, 2017 Tenn. LEXIS 734 (Tenn. Nov. 21, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 735 (Tenn. Nov. 21, 2017).

In a workers'  compensation case in which the employee, who was employed by the city as a trash collector, allegedly sustained a low back injury on May 22, 2012, when lifting a wet sofa into a refuse truck, the trial court did not err in holding that the employee sustained a compensable injury and awarded 6% permanent partial disability benefits because the employee suffered a compensable injury as the testimonies of the employee, the employee's mother, and a board-certified orthopedic surgeon, and his supporting documentation, demonstrated that the May 22, 2012, workplace injury advanced the severity of the employee's preexisting condition; and the city failed to rebut the surgeon's impairment rating by clear and convincing evidence. Jordan v. City of Murfreesboro, — S.W.3d —, 2017 Tenn. LEXIS 853 (Tenn. Dec. 28, 2017).

1.5. Injuries Not Covered.

Workers'  Compensation Appeals Board properly reversed the trial court's determination that the claimant's knee injury was compensable as his injury arose from his voluntary participation in a mud run charity event because his participation in the mud run was not required as the individual, who was the primary source of pressure on the claimant to participate, had no supervisory authority over the claimant, and the claimant was not threatened with any adverse employment action if he declined to participate; and the mud run was not work-related as the claimant was not compensated for his time, he was not required to make sales or to network, and his participation in the mud run was a departure from his normal duty of selling cars. Pope v. Nebco of Cleveland, Inc., — S.W.3d —, 2018 Tenn. LEXIS 146 (Tenn. Jan. 16, 2018).

2. Failure to Rebut Presumption.

Trial court correctly found that an employee failed to rebut by clear and convincing evidence the presumption that the drugs revealed in his drug screen were the proximate cause of his injury because the evidence he submitted consisted entirely of his own testimony; the expert medical witness testified that the results of the drug screen were inconsistent with the employee's version of events because they showed he had taken non-prescribed medications shortly before the accident. Austin v. Roach Sawmill & Lumber Co., — S.W.3d —, 2016 Tenn. LEXIS 748 (Tenn. Oct. 26, 2016), aff'd, — S.W.3d —, 2016 Tenn. LEXIS 747 (Tenn. Oct. 26, 2016).

NOTES TO DECISIONS

1. Employers Covered.

Parent corporation was not an employer and thus could be sued in a wrongful death action arising from an explosion in parent company's factory where decedent was an employee of a wholly owned subsidiary which paid decedent on its own paychecks, maintained separate payroll deduction returns, held its own charter, produced seat belts essentially dissimilar from the air bags manufactured by the parent, and hired its own employees, paying them on its own checks, and where decedent was never notified that she was actually working for the parent company. Latham v. Technar, Inc., 390 F. Supp. 1031, 1974 U.S. Dist. LEXIS 6079 (E.D. Tenn. 1974).

2. Injuries Covered.

Where the employee is injured on the employer's premises during a break period provided by the employer, such an injury is generally compensable. Holder v. Wilson Sporting Goods Co., 723 S.W.2d 104, 1987 Tenn. LEXIS 814 (Tenn. 1987).

Injury sustained while employee was en route to friend's home to see if the friend would fill in the next day on a work crew was compensable as arising out of the course of employment where the employer implicitly permitted employee to bring prospective workers to the job. Loy v. North Bros. Co., 787 S.W.2d 916, 1990 Tenn. LEXIS 159 (Tenn. 1990).

Where an employee is injured while en route to or from work, the injury is in the course of employment if it occurs on the employer's premises or on a necessary route between the work facility and the areas provided for employee parking. Once the employee has exited the parking area and begins traveling on personal time, away from the employer's premises, he is no longer in the course of employment. McCurry v. Container Corp. of Am., 982 S.W.2d 841, 1998 Tenn. LEXIS 606 (Tenn. 1998), rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 59 (Tenn. Feb. 1, 1999).

Young v. Taylor-White, LLC, 181 S.W.3d 324, 2005 Tenn. LEXIS 853 (Tenn. 2005) should not be read expansively because, while the voluntary nature of an activity in some circumstances may be a very important factor in determining whether an injury occurred in the course of employment, neither this factor or any other single factor can be the “touchstone” for all cases; thus, workers'  compensation benefits were improperly denied to a widow of an employee who died of an acute myocardial infarction suffered while participating in an employer-sanctioned basketball game during his work break. Gooden v. Coors Tech. Ceramic Co., 236 S.W.3d 151, 2007 Tenn. LEXIS 779 (Tenn. Sept. 6, 2007).

Employees of a credit union who were allegedly sickened by exposure to carbon monoxide emanating from a hot water heater in the basement of their building were limited to the remedies afforded by the workers'  compensation law because their injuries had a rational, causal connection with their employment and the conditions under which their work was required to be performed. Coleman v. St. Thomas Hosp., 334 S.W.3d 199, 2010 Tenn. App. LEXIS 500 (Tenn. Ct. App. Aug. 4, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1061 (Tenn. Nov. 15, 2010).

Worker's compensation award arising out of an employee's fall at work was affirmed because the evidence did not preponderate against the trial court's conclusion that the employee sustained a compensable injury arising out of her employment for purposes of T.C.A. § 50-6-103(a); the employee stated that her foot “stuck” and that her inability to lift her foot interrupted her gait, causing her to fall, and, although the employee conceded that it was “speculation” as to what, if any, substance was on the floor, the trial court accredited her testimony that the fall had occurred as she described and found that the hazard was incident to her employment. Although the employer's witnesses testified that they found no substance on the floor or any irregularity in the floor, the trial court concluded that the nursing staff could have tracked away whatever substance was present on the floor. Vandall v. Aurora Healthcare, LLC, 401 S.W.3d 28, 2013 Tenn. LEXIS 426 (Tenn. Apr. 24, 2013).

3. Injuries Not Covered.

One of the fundamental purposes of workers'  compensation law is to compensate employees for work-related injuries irrespective of fault; thus, recognizing hedonic damages as a basis for recovering benefits would run counter to the exclusive-remedy principle which reinforces the policy balance of workers'  compensation law. Lang v. Nissan North America, Inc., 170 S.W.3d 564, 2005 Tenn. LEXIS 659 (Tenn. Aug. 16, 2005).

Trial court did not err in granting summary judgment to an attorney in his former client's legal malpractice suit claiming he was negligent in not re-filing a workers'  compensation lawsuit within one year after a voluntary non-suit, as the client's evidence in the underlying workers'  compensation action regarding the death of her husband at work was insufficient to establish the damages element of the legal malpractice action. Shearon v. Seaman, 198 S.W.3d 209, 2005 Tenn. App. LEXIS 792 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 479 (Tenn. 2006).

Award of 35 percent permanent partial disability award to the employee's body as a whole in a workers'  compensation action was improper under T.C.A. § 50-6-103(a) because the injuries did not qualify as work-related; an injury occurring as an employee walked on a level, obstacle-free, concrete surface was not compensable unless a hazard contributed to the injury. Wilhelm v. Krogers, 235 S.W.3d 122, 2007 Tenn. LEXIS 743 (Tenn. Aug. 17, 2007).

Employee's injuries, although they occurred at home, were suffered during the course of her employment, but still did not arise out of her employment pursuant to T.C.A. § 50-6-103(a); the employee was engaged in a permissible incidental activity at her sanctioned work site when she was attacked, but the assailant was not part of a working employment relationship. Wait v. Travelers Indem. Co., 240 S.W.3d 220, 2007 Tenn. LEXIS 1033 (Tenn. Nov. 16, 2007).

Nurse's claim for workers' compensation benefits, based upon the nurse's claim that the nurse had contracted tuberculosis when the nurse's hand came into contact with the blood of a patient who was subsequently diagnosed with tuberculosis, was dismissed because the nurse failed to present competent medical evidence that the nurse had contracted tuberculosis as a result of the nurse's employment. Wheetley v. State, — S.W.3d —, 2014 Tenn. LEXIS 467 (Tenn. June 25, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 468 (Tenn. June 25, 2014).

Collateral References.

Construction of phrase “establishment” or “factory, establishment, or other premises” within unemployment compensation statute rendering employee ineligible during labor dispute or strike at such location. 60 A.L.R.3d 11, 63 A.L.R.3d 88.

Employee's injuries sustained in use of employer's restroom as covered by workers' compensation. 80 A.L.R.5th 417.

Injury to employee as arising out of or in course of employment for purposes of state workers'  compensation statute — Effect of employer-provided living quarters, room and board, or the like. 42 A.L.R.6th 61.

Presumptions, constitutionality of statute making one fact prima facie evidence of another. 51 A.L.R. 1179, 86 A.L.R. 179, 162 A.L.R. 495.

Recovery for discharge from employment in retaliation for filing workers' compensation claim. 32 A.L.R.4th 1221.

Right to compensation under state workers'  compensation statute for injuries sustained during or as result of horseplay, joking, fooling, or the like. 41 A.L.R.6th 207.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Right to compensation under particular statutory provisions. 97 A.L.R.5th 1.

Right to workers' compensation for injury suffered by employee while driving employer's vehicle. 28 A.L.R.6th 1.

Tort liability of workers' compensation insurer for wrongful delay or refusal to make payments due. 8 A.L.R.4th 902.

NOTES TO DECISIONS

1. Benefit Corporation — Operations for Profit.

Injury to a carpenter, who was working on a reservoir of an eleemosynary corporation, which was not needed for the corporation's own water supply but was needed to insure uniform supply to a town furnished water therefrom to the profit of the corporation, was compensable under this statute. Lincoln Memorial University v. Sutton, 163 Tenn. 298, 43 S.W.2d 195, 1931 Tenn. LEXIS 115 (1931).

NOTES TO DECISIONS

1. Validity.

Acts 1943, ch. 120, amending this section by striking out subsection (a) and substituting new subsection (a), did not violate the provisions of Tenn. Const., art. II, § 17, requiring all acts that repeal, revive or amend to recite in the caption the title or the substance of the law repealed, revived or amended, as the caption of the amendatory act specified that it was amending this section of the official code. Basham v. Southeastern Motor Truck Lines, Inc., 184 Tenn. 532, 201 S.W.2d 678, 1947 Tenn. LEXIS 407 (1947).

Acts 1943, ch. 120, removing exemption of common carriers engaged in interstate commerce from provisions of Workers' Compensation Law, was not invalid on the ground that it extended enforcement of statute beyond state borders, since basis of Workers' Compensation Law is based on a contractual relationship regardless as to where the accident or injury occurred. Basham v. Southeastern Motor Truck Lines, Inc., 184 Tenn. 532, 201 S.W.2d 678, 1947 Tenn. LEXIS 407 (1947).

2. Scope.

The Workers' Compensation Law, as is evident from the several express exceptions set out in this section, does not undertake to cover the entire subject of master and servant. Olsen v. Sharpe, 191 Tenn. 503, 235 S.W.2d 11, 1950 Tenn. LEXIS 464 (1950).

3. Carriers.

Although there are cases preceding the 1976 amendment to subdivision (1) holding T.C.A. § 50-6-113, the principal contractor liability provision, applicable to the contract trucking situation, the 1976 amendment, removing common carriers from consideration as the statutory employer of an owner-operator or leased-operator, makes these cases and the principal contractor liability theory inapplicable to such situations. Long v. Stateline Systems, Inc., 738 S.W.2d 622, 1985 Tenn. LEXIS 542 (Tenn. 1985).

Railroads engaged in interstate commerce were excepted. Vaught v. East T. & W. N. C. R. Co., 148 Tenn. 379, 255 S.W. 595, 1923 Tenn. LEXIS 25, 29 A.L.R. 1202 (1923); Prince v. Nashville, C. & S. L. Ry., 152 Tenn. 189, 274 S.W. 13, 1925 Tenn. LEXIS 61 (1925).

Employee injured while loading an intrastate shipment into an interstate car was not compensable under this statute. Vaught v. East T. & W. N. C. R. Co., 148 Tenn. 379, 255 S.W. 595, 1923 Tenn. LEXIS 25, 29 A.L.R. 1202 (1923).

A section hand engaged in work preparatory to unloading gravel for ballasting an interstate track was engaged in such interstate commerce. Prince v. Nashville, C. & S. L. Ry., 152 Tenn. 189, 274 S.W. 13, 1925 Tenn. LEXIS 61 (1925).

To take the case out of the statute the work in which the employer and employee were jointly engaged at the time of the injury had to be an act of interstate commerce or so closely related thereto as to be a practical part of such commerce. Prince v. Nashville, C. & S. L. Ry., 152 Tenn. 189, 274 S.W. 13, 1925 Tenn. LEXIS 61 (1925); Williams v. Carolina, C. & O. R. Co., 154 Tenn. 224, 289 S.W. 520, 1926 Tenn. LEXIS 117 (1926).

4. —Election Requirement.

The filing requirement of T.C.A. § 50-6-106(1)(B) is merely directory and an election may be accomplished by substantial compliance with the workers' compensation statute; thus, where a carrier advised a leased-operator that he was covered by workers' compensation when he was hired and stated in its answers to interrogatories that the operator was covered, the carrier complied in substantial manner with the election requirement. Perkins v. Enterprise Truck Lines, 896 S.W.2d 123, 1995 Tenn. LEXIS 98 (Tenn. 1995).

5. Telegraph Companies.

Telegraph companies were not excepted from operation of the statute. Western Union Tel. Co. v. Byrd, 155 Tenn. 455, 294 S.W. 1099, 1926 Tenn. LEXIS 66 (1927).

6. Maritime Statutes — Application.

Where an employee of the American Red Cross who was engaged in rescue work during a flood drowned when a boat in which he was riding was overturned while crossing a navigable stream but occurred at a point ordinarily dry land and not covered by water except during flood times, the accident occurred on “overflowed lands” and not on a navigable stream and the widow was entitled to an award under the state Workers' Compensation Law and not under federal statutes relating to compensation as to such accidents occurring on navigable waters. American Red Cross v. Hinson, 173 Tenn. 667, 122 S.W.2d 433, 1938 Tenn. LEXIS 52 (1938).

Where maritime employee was killed while on his way into city on an errand for employer his exclusive remedy was under the Jones Act (46 U.S.C. App. § 688). Rudolph v. Industrial Marine Service, Inc., 187 Tenn. 119, 213 S.W.2d 30, 1948 Tenn. LEXIS 417 (1948).

7. Casual Employee — Meaning and Application.

The word “casual” signifies something which is without regularity and is occasional and incidental. Murphy v. Gaylord, 160 Tenn. 660, 28 S.W.2d 348, 1930 Tenn. LEXIS 151 (1930).

Unless an employee is engaged with reference to the usual course of the master's trade, business or occupation, he is a casual employee not protected by this statute, but if he is engaged with reference to his master's usual business, he may be protected, though his employment is casual as distinguished from regular. Gibbons v. Roller Estates, Inc., 163 Tenn. 373, 43 S.W.2d 198, 1931 Tenn. LEXIS 125 (1931).

Before an injured employee is entitled to compensation, he must show that his employment was not casual, and that he was injured in the course of his employment, and that the injury arose out of the employment. Parks v. E. M. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285, 1934 Tenn. LEXIS 70 (1935).

Test of casual employment is whether individual concerned is employed in usual course of trade, business, profession or occupation of the employer and period of work is immaterial. Parks v. E. M. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285, 1934 Tenn. LEXIS 70 (1935); D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897, 1947 Tenn. LEXIS 365 (1947).

An employee may come within the protection of the statutes, if engaged with reference to the usual course of the master's trade or business, although his employment is casual as distinguished from regular employment. Parks v. E. M. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285, 1934 Tenn. LEXIS 70 (1935).

In determining whether or not the employee is entitled to compensation, the test as applied under subsection (b) (now subdivision (2)) is whether or not such employee was injured in the usual course of trade, business, profession or occupation of the employer and not with reference to such facts as related to the employee. Dancy v. Abraham Bros. Packing Co., 171 Tenn. 311, 102 S.W.2d 526, 1936 Tenn. LEXIS 93 (1937).

The general rule that construction work is not in the usual course of an employer's business where the employer is not a contractor or builder will not be extended to regular and general employees about a plant in connection with its usual business who happen to be at the time of the accident engaged on work of a repair or construction nature at the direction and under the supervision of the company's managers. United States Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184, 1937 Tenn. LEXIS 112 (Tenn. Mar. 7, 1938).

The amount of compensation paid and the length of time one is employed is not determinative of whether or not employment is regular or casual. Brady v. Reed, 186 Tenn. 556, 212 S.W.2d 378, 1948 Tenn. LEXIS 581 (1948).

In determining whether employment is casual, it is not the regularity of the employment of an injured workman that is important but the regularity of the employer's exercise of a given employment. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956); Federated Mut. Implement & Hardware Co. v. Shoemaker, 211 Tenn. 523, 366 S.W.2d 129, 1963 Tenn. LEXIS 377 (1963).

In determining whether the worker is entitled to recover under subsection (b) (now subdivision (2)), the test is not whether he was engaged in the usual course of his trade or occupation but whether he was injured in the usual course of the trade, business, profession or occupation of the employer. Federated Mut. Implement & Hardware Co. v. Shoemaker, 211 Tenn. 523, 366 S.W.2d 129, 1963 Tenn. LEXIS 377 (1963).

Where an employer regularly employs employees in a given class of work this may be evidence that such work is in the usual course of the employer's trade, business or occupation. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Maintenance, repair, painting, cleaning and the like are generally in the course of business, since the business could not be carried on without them and they are an expectable, routine and inherent part of carrying on an enterprise. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965); Winchester v. Seay, 219 Tenn. 321, 409 S.W.2d 378, 1966 Tenn. LEXIS 531 (1966).

So long as compensation claimant was a member of a class doing some work necessary in carrying on defendant's business, he fell within the classification of those regularly employed. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

So-called “relative nature of the work” test is of vital significance on the issue of whether an individual is an employee or casual employee but is of less significance where the question is whether the injured person is an employee or independent contractor. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969).

Where plaintiff was employee of supplier of temporary manpower and was supplied to defendant who requested some temporary day labor, defendant was a coemployer with employment agency at the time of plaintiff's injury and plaintiff was limited to a cause of action under title 50, chapter 6 and precluded from bringing an action in negligence against defendant. Bennett v. Mid-South Terminals Corp., 660 S.W.2d 799, 1983 Tenn. App. LEXIS 627 (Tenn. Ct. App. 1983).

T.C.A. § 50-6-106 excludes those persons employed for the purpose of engaging in activity that is not in the usual course of business of the employer. It cannot be used to exclude employees employed for the purpose of performing work in the usual business of the employer who happened to be, at the time of the accident, engaged in work outside the usual course of the employer's business, at the direction and under the supervision of the employer. Yearout v. Trusty, 684 S.W.2d 612, 1984 Tenn. LEXIS 878 (Tenn. 1984), superseded by statute as stated in, Dulin v. Dulin, — S.W.3d —, 2003 Tenn. App. LEXIS 628 (Tenn. Ct. App. Sept. 3, 2003).

The word “usual” as used in T.C.A. § 50-6-106(2) means the normal operations of the business. Creek v. MacLennan, 752 S.W.2d 511, 1988 Tenn. LEXIS 202 (Tenn. 1988).

8. —Issue of “Casualness” — When Raised.

The question of “casualness” of the employment as a basis for defeating recovery of compensation by an injured employee is not in issue if it has been determined that the employment was not in the usual course of the employer's business. Parks v. E. M. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285, 1934 Tenn. LEXIS 70 (1935).

9. —Question of Casual Employment in Specific Cases.

Employer, a garage owner, not engaged in the building business, was erecting a building aside from the usual course of his business. Petitioner was employed from time to time by the hour and lost a finger while oiling a concrete mixer. His injury was not compensable. Murphy v. Gaylord, 160 Tenn. 660, 28 S.W.2d 348, 1930 Tenn. LEXIS 151 (1930).

Death of boy while assisting in repainting office building was not compensable by owners of the building, the deceased not being employed in the usual course of trade, business or occupation of the owners. Gibbons v. Roller Estates, Inc., 163 Tenn. 373, 43 S.W.2d 198, 1931 Tenn. LEXIS 125 (1931).

Where structural iron worker was employed for temporary period to assist in carrying heating equipment to building site for installation by steam fitters because workers employed for job could not do work because of lack of membership in union, the iron worker was not a casual employee as work performed was work generally performed by structural iron workers. Parks v. E. M. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285, 1934 Tenn. LEXIS 70 (1935).

Where carpenter was injured while engaged in construction of a hydrant house to protect the control valves for an automatic sprinkler system designed to protect meat packing plant from fire but where such packing company did not regularly maintain a force of carpenters for such work and the custom was for the chief engineer to call in a carpenter whenever the occasion demanded odd carpenter jobs and where the injured employee was so employed such employee was not engaged in the regular course of the employer's business so as to recover under the statute. Dancy v. Abraham Bros. Packing Co., 171 Tenn. 311, 102 S.W.2d 526, 1936 Tenn. LEXIS 93 (1937).

Where employee of manufacturer of cord fabrics was injured while unloading lumber to be used in construction of addition to the plant from a freight car, evidence that employee was hired to unload box cars and work around the yard as a common laborer, that he engaged in such work since the start of his employment and that he was working under the direction of the employer's supervisors was material evidence showing that the employment at the time of the injury was not casual. United States Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184, 1937 Tenn. LEXIS 112 (Tenn. Mar. 7, 1938).

Deceased employed as a guard for a period of three months by defendant contractor engaged on war control project for U.S. Navy was not a “casual employee” of defendant but was employed in usual course of trade, business, profession or occupation of defendant. McDonald v. Dunn Const. Co., 182 Tenn. 213, 185 S.W.2d 517, 1945 Tenn. LEXIS 212 (1945).

Claimant was not a casual employee where he was engaged in work on a new house being constructed by defendant engaged in business of manufacturing and selling lumber where defendant had built as many as 100 new houses and had 20 more houses in process of construction. D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897, 1947 Tenn. LEXIS 365 (1947).

Window washer who washed windows for building corporation was employed in usual course of business of corporation and not a casual employee where corporation under its contract with tenants furnished window washing free. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

Plumber employed by automobile garage to install a water pipe in garage was a casual employee and not entitled to compensation for fall from ladder. Harper v. Grady Counce & Son, 194 Tenn. 279, 250 S.W.2d 371, 1952 Tenn. LEXIS 379 (1952).

Where welding company contracted to move equipment of machinist's school by means of cranes owned by welding company engaged in supervising operation of crane was not a casual employee of machinist's school, but an employee of the welding company. Still v. Penn. Threshermen & Farmers' Mut. Cas. Ins. Co., 195 Tenn. 323, 259 S.W.2d 538, 1953 Tenn. LEXIS 344 (1953).

Uncontradicted testimony that employer maintained an average of more than five men working around pleasure resort and that particular workman was employed at such resort while not working at crops on land owned by such employer and operated by such workman on a share crop basis was sufficient to support trial court's finding that operation of such resort was in the regular course of employer's business and that workman's employment was not casual. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956).

Fact that employer was engaged in business of commercial trucking was not per se evidence that it was not regularly engaged in some other business or that employee killed by lightning while shutting off irrigation apparatus on pleasure resort operated by such employer was a casual employee. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956).

A person who worked for a university as a painter during the summer months and was employed from July 5th to time of injury in early October was not a “casual” employee. Smith v. Lincoln Memorial University, 202 Tenn. 238, 304 S.W.2d 70, 1957 Tenn. LEXIS 386 (1957).

Where a farmer who carried workers' compensation on his regular employees testified that such employees had, at times, painted the buildings as part of their regular work, a painter, whom he hired to paint certain buildings on a particular day, and retained right to terminate the employment at any time, was not an independent contractor nor a casual employee and was covered by the compensation law, the upkeep and maintenance of the buildings being an essential part of the farming. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Where service station and appliance store operator decided to build a retaining wall across the rear of the property and to do so hired two persons experienced in construction work to take charge of the work of building such wall, additional helpers also being hired by the service station operator for such work, the completion of such construction to take about 75 days, the persons hired to take charge of such work were employees of the service station and appliance store operator and, although casual employees and excluded from coverage so far as a service station and appliance store were concerned, the business of constructing such wall was considered a separate business engaged in by the service station operator and as employees in such business were not casual employees and were covered by the Workers' Compensation Act. Black v. Corder, 217 Tenn. 613, 399 S.W.2d 762, 1966 Tenn. LEXIS 616 (1966).

Where worker was injured while cutting metal strip to fit under air conditioner over door of restaurant such employee was engaged in such maintenance or repair work as to be entitled to compensation and was not excluded therefrom as a “casual employee” even though he was a regular employee of a nearby hotel where he was working under the direction of owner of the restaurant and not of his regular employer. Winchester v. Seay, 219 Tenn. 321, 409 S.W.2d 378, 1966 Tenn. LEXIS 531 (1966).

Men employed on an hourly basis solely for the purpose of painting a grocery store are casual employees under this section as such employment is not part of the normal operations which regularly constituted the business. Travelers Ins. Co. v. Dozier, 219 Tenn. 525, 410 S.W.2d 904, 1966 Tenn. LEXIS 543 (1966).

Farmer who brought load of tobacco to warehouse and was told by warehouse owner that if he unloaded the tobacco he would be paid for it and who was injured while performing the same function of unloading tobacco as warehouse's other employees was a regular employee even though only engaged in unloading tobacco from one truck. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

Painter hired by company to paint its building who was paid weekly by the hour, had income and social security taxes withheld from his pay, was required to clock in and out, and was furnished paint, brushes and ladders was a regular employee of the company, not a casual employee. Garan, Inc. v. Surratt, 525 S.W.2d 137, 1975 Tenn. LEXIS 653 (Tenn. 1975).

Absent facts which would clothe the entire transaction with all indicia of employer-employee relationship, a worker hired solely to paint business premises which were not regularly repainted was a casual employee. Freeman's Furniture Co. v. Large, 546 S.W.2d 582, 1977 Tenn. LEXIS 518 (Tenn. 1977).

Where person who was engaged in the business of carpet sales, installation and service purchased new building for its business and hired two carpenters to prepare the new building, such carpenters constituted casual employees not covered by the Workers' Compensation Act. Feathers v. Duncan, 582 S.W.2d 385, 1979 Tenn. LEXIS 445 (Tenn. 1979).

10. —Evidence.

If the employer regularly employs workers in a given class of work this may be evidence that such work is in the usual course of the employer's trade, business or occupation. Dancy v. Abraham Bros. Packing Co., 171 Tenn. 311, 102 S.W.2d 526, 1936 Tenn. LEXIS 93 (1937); Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956); Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Although not determinative, the occupation of the employee may be looked to and has evidential value as bearing on the nature of the work of the employer with reference to the work in which the employee was engaged. United States Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184, 1937 Tenn. LEXIS 112 (Tenn. Mar. 7, 1938).

Fact that employer was engaged in business of commercial trucking was not per se evidence that it was not regularly engaged in some other business. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956).

If the employer regularly employs employees in a given class of work, this may be evidence that such work is in the regular course of such employer's trade, business or occupation. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956).

Where employer regularly employs employees in a given class of work, this may be evidence that such work is in the usual course of such employer's trade. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

11. —Payment of Compensation to Casual Employee — Effect.

Where petitioner was a casual employee only, the fact that the insurance carrier paid compensation to petitioner for many weeks did not estop the employers to deny liability under the Workers' Compensation Law. Harper v. Grady Counce & Son, 194 Tenn. 279, 250 S.W.2d 371, 1952 Tenn. LEXIS 379 (1952).

12. Agricultural Laborers.

Whether a laborer is an agricultural or farm laborer is determined from the whole character of the work he is required to perform, and not from the general occupation or business of the employer. Ginn v. Forest Nursery Co., 165 Tenn. 9, 52 S.W.2d 141, 1931 Tenn. LEXIS 164 (1932).

One employed to till the soil, to tend the plants and shrubs of a commercial nursery, to prepare the products for market, and to deliver them to a shipping point, is an agricultural laborer. Ginn v. Forest Nursery Co., 165 Tenn. 9, 52 S.W.2d 141, 1931 Tenn. LEXIS 164 (1932).

One may be engaged at same time in both farming and mining or sawmilling, but to bring him within the statute he must be engaged in the occupation other than farming as a business. Robinson v. Stockley, 166 Tenn. 380, 61 S.W.2d 677, 1932 Tenn. LEXIS 145 (1933).

Employer whose principal occupation was farming was a farmer and exempt from operation of this statute though engaged in cutting and logging of timber, where the purpose of the cutting was to get the valuable merchantable timber off the land in order to put the land in cultivation. Robinson v. Stockley, 166 Tenn. 380, 61 S.W.2d 677, 1932 Tenn. LEXIS 145 (1933).

Employee on 500 acre farm operated by nursery who did any and all work required on the farm including hauling of nursery stock to employer's shipping plant located in town was a farm laborer, and fatal injury to such employee while steering disabled truck across a bridge was not covered. Dills v. Tennessee Nursery Co., 188 Tenn. 241, 218 S.W.2d 992, 1949 Tenn. LEXIS 336 (1949).

Where partnership engaged in operation of grain mill and 1,000 acre farm took a workers' compensation policy which provided coverage for farm employees other than in servants and insurance company accepted premiums based in part on wages paid to farm laborers, a farm laborer was entitled to recover on policy in suit against insurer though farm laborers were excluded from coverage under provisions of subdivision (3). Eidson v. Hardware Mut. Casualty Co., 191 Tenn. 430, 234 S.W.2d 836, 1950 Tenn. LEXIS 455 (1950).

Whether a laborer is or is not a farm laborer is determined from the character of the work he is required to perform; neither the pending task nor the place where it is being performed is the test. The whole character of the employment must be looked at, to determine whether he is a farm laborer. McWhirter v. Kimbro, 742 S.W.2d 255, 1987 Tenn. LEXIS 1030 (Tenn. 1987), rehearing denied, 742 S.W.2d 255, 1987 Tenn. LEXIS 1050 (Tenn. 1987).

13. Domestic Servants.

Employee of lumber company who was injured while mowing lawn of owner of such lumber company was not excluded from compensation as a domestic servant where employee for period of time had spent one day per week working about his employer's house but was only paid through lumber company and was injured during regular working hours. Sharp v. Jenkins, 211 Tenn. 691, 367 S.W.2d 464, 1963 Tenn. LEXIS 392 (1963).

14. Employers of Five Persons.

This section was impliedly amended by Acts 1923, ch. 84, § 2 so as to make the act cover employers using services of not less than five persons, though not specifically referred to in express terms. Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355, 1924 Tenn. LEXIS 5 (1924).

Workers' compensation attaches to an employer on the first day that five or more persons may be classified as regular employees and may not be withdrawn solely by the device of reducing the work force to four or fewer regular employees. Ganus v. Asher, 561 S.W.2d 756, 1978 Tenn. LEXIS 580 (Tenn. 1978).

Individual was counted as the fifth employee for purposes of T.C.A. § 50-6-106(4) where she admitted taking cash out of the “money bag” before plaintiff was injured to reimburse herself for money spent running errands for the store. Garner v. Reed, 856 S.W.2d 698, 1993 Tenn. LEXIS 196 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 249 (Tenn. June 28, 1993).

15. Employers of Fewer Than Five Persons.

This section does not require employer having less than five employees to wait 30 days before being bound, and such employer can accept the provisions of the law immediately. Commercial Ins. Co. v. Young, 209 Tenn. 608, 354 S.W.2d 779, 1961 Tenn. LEXIS 425 (1961).

The provisions of subdivision (4), that where less than five persons are regularly employed the employer may accept the provisions of the law by filing written notice with the bureau of workers' compensation at least 30 days before the happening of an accident or death, is permissive only and not exclusive, and does not prohibit the employer from accepting the provisions of the law by other methods or means including by agreement of the parties. Commercial Ins. Co. v. Young, 209 Tenn. 608, 354 S.W.2d 779, 1961 Tenn. LEXIS 425 (1961).

Where employer of less than five regular employees neglected to give notice to department of workers' compensation of its election to be bound by the law but it was understood by employer and employee that they were to be bound, employer's insurance carrier would not be permitted to assert the technical defense that employer had not given such notice. Commercial Ins. Co. v. Young, 209 Tenn. 608, 354 S.W.2d 779, 1961 Tenn. LEXIS 425 (1961).

The Workers' Compensation Law is silent with respect to an express procedure for withdrawal from coverage by an employer who was subject to the act by virtue of having five or more employees but thereafter reduced the work force below five. Karstens v. Wheeler Millwork Cabinet & Supply Co., 614 S.W.2d 37, 1981 Tenn. LEXIS 417 (Tenn. 1981).

An employer employing five or more persons who has filed proof of insurance pursuant to T.C.A. §§ 50-6-401 — 50-6-406, who thereafter reduces his work force to less than five persons, shall be deemed to have elected to remain subject to the act until notice of withdrawal is filed with the division of workers' compensation in accord with T.C.A. § 50-6-106(4). Karstens v. Wheeler Millwork Cabinet & Supply Co., 614 S.W.2d 37, 1981 Tenn. LEXIS 417 (Tenn. 1981); Whitehead v. Watkins, 741 S.W.2d 327, 1987 Tenn. LEXIS 1029 (Tenn. 1987).

A mere reduction in the employer's work force does not withdraw an employer from coverage under the Workers' Compensation Act, T.C.A. § 50-6-101 et seq.Whitehead v. Watkins, 741 S.W.2d 327, 1987 Tenn. LEXIS 1029 (Tenn. 1987).

The five-employee limitation for workers' compensation liability was not applicable to principle contractor liable because subcontractor failed to secure workers' compensation insurance. Brown v. Canterbury Corp., 844 S.W.2d 134, 1992 Tenn. LEXIS 609 (Tenn. 1992).

Plaintiff did not carry her burden of demonstrating that individual was anything other than a gratuitous worker where he was not compensated, nor did he receive any consideration for his services, in any form whatever; therefore, he could not be counted as a person who was regularly employeed for purposes of T.C.A. § 50-6-101(4) et seq.Garner v. Reed, 856 S.W.2d 698, 1993 Tenn. LEXIS 196 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 249 (Tenn. June 28, 1993).

In counting the number of individuals for purposes of deciding whether the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., applied, dispositive emphasis was not placed on business records alone, since everyone who ever worked at the establishment was paid in cash, not by check, and more importantly, there was some question about the reliability of the business records themselves. Garner v. Reed, 856 S.W.2d 698, 1993 Tenn. LEXIS 196 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 249 (Tenn. June 28, 1993).

Pursuant to T.C.A. § 50-6-106(5), Tennessee Workers'  Compensation Act did not apply to employer that only had three employees, and therefore personal injury complaint against employer alleged damages only in common law tort. Maggart v. Almany Realtors, Inc., 259 S.W.3d 700, 2008 Tenn. LEXIS 534 (Tenn. Aug. 14, 2008).

16. State, Counties and Municipalities.

State, counties and municipalities are not within the statute unless they elect to accept its provisions. Bohannon v. Putnam County, 157 Tenn. 170, 7 S.W.2d 58, 1927 Tenn. LEXIS 62 (1928); Johnson v. Chattanooga-Hamilton County Hospital Authority, 749 S.W.2d 36, 1988 Tenn. LEXIS 73 (Tenn. 1988).

In view of subdivision (5), demurrer will be sustained to petition which seeks recovery for injury during employment by county but which does not allege election of county to operate under the statute, presumption of acceptance of statute under § 50-6-103 not pertaining to those expressly exempted. Bohannon v. Putnam County, 157 Tenn. 170, 7 S.W.2d 58, 1927 Tenn. LEXIS 62 (1928).

Upon acceptance of statute by a city, the terms of this section are written by law into its contracts with its employees. Cornett v. Chattanooga, 165 Tenn. 563, 56 S.W.2d 742, 1932 Tenn. LEXIS 86 (1933).

A policeman of a city is an officer, and not under any contract of hire so as to be an employee. Cornett v. Chattanooga, 165 Tenn. 563, 56 S.W.2d 742, 1932 Tenn. LEXIS 86 (1933).

Though the city accepted the provisions of the statute and in so doing referred to members of the police force as within the provisions of the statute, it is not estopped to deny liability where it is not shown that the suing policeman or the petitioner had knowledge of the fact prior to the accident. Cornett v. Chattanooga, 165 Tenn. 563, 56 S.W.2d 742, 1932 Tenn. LEXIS 86 (1933).

City was not liable for compensation to employee of emergency relief administration who was injured while working on city streets under supervision of foreman provided by city, as emergency relief administration was in control of job. Shelton v. Greeneville, 169 Tenn. 366, 87 S.W.2d 1016, 1935 Tenn. LEXIS 56 (1935).

Where petitioner suing under the Workers' Compensation Law knew that town of Shelbyville had accepted the provisions of such law, but did not know that it had withdrawn from such provisions and where there was no evidence that the town had given the notice of withdrawal required by this section to the commissioner of labor, the town was bound by the provisions of the statute. Shelbyville v. Hamilton, 170 Tenn. 297, 95 S.W.2d 43, 1935 Tenn. LEXIS 136 (1936).

Where insurance company carried compensation insurance insuring the employees of city water and light department for six or seven years, collected the premiums therefor and paid claims of employees of such department, including one claim of the deceased worker, the insurance company was estopped to assert the failure of the city to elect to come within the provisions of the compensation statute by complying with the provisions of this section as a defense to a claim for compensation for the death of an employee of such department arising out of and in the course of his employment. Travelers Ins. Co. v. Dudley, 180 Tenn. 191, 173 S.W.2d 142 (1943).

Where city accepted provisions of Workers' Compensation Law and entered into a contract with an insurance company for a policy designated as “Standard Workers' Compensation and Employer's Liability” and schedule listed policemen as covered, widow of a city policeman killed in the line of duty was entitled to recover compensation. Woods v. La Follette, 185 Tenn. 655, 207 S.W.2d 572, 1947 Tenn. LEXIS 370 (1947).

Where county highway department accepted Workers' Compensation Law by notice to division of workers' compensation and there was no evidence of withdrawal of acceptance, insolvency of county's insurance carriers did not relieve county of its contractual liability under the act or permit it to assert governmental immunity. Sevier County Highway Dep't v. Wells, 217 Tenn. 130, 395 S.W.2d 800, 1965 Tenn. LEXIS 525 (1965).

A legislatively created hospital district which acts on behalf of a governmental entity and performs a governmental function falls within the statutory exemption for subdivisions of the state and counties as does a hospital operated as a subsidiary of the hospital district. Finister v. Humboldt Gen. Hosp., 970 S.W.2d 435, 1998 Tenn. LEXIS 291 (Tenn. 1998).

The savings statute (T.C.A. § 28-1-105) cannot be used to extend the limitations period against a defendant protected by sovereign immunity in a workers' compensation case, even though the protected employer has opted to accept the provisions of the Workers' Compensation Act, T.C.A. § 50-6-101 et seq.Roettger v. Metropolitan Gov't, 991 S.W.2d 244, 1999 Tenn. LEXIS 286 (Tenn. Special Workers' Comp. App. Panel 1999), aff'd, Roettger v. Metro Gov't of Nashville, 1999 Tenn. LEXIS 285 (Tenn. May 27, 1999).

Denial of the municipal corporation's motion to dismiss or transfer the claimant's workers'  compensation action was affirmed because the corporation was subject to the venue provisions of the Workers'  Compensation Act when it voluntarily entered into the workers'  compensation system pursuant to an express grant of authority from the Tennessee General Assembly, which thus effected a waiver of its sovereign immunity; the specific venue provisions of the Workers'  Compensation Act controlled venue and applied and the corporation could be sued in the claimant's county of residence. Lanius v. Nashville Elec. Serv., 181 S.W.3d 661, 2005 Tenn. LEXIS 1047 (Tenn. 2005).

County that does not opt into the workers'  compensation statutes as provided for in T.C.A. § 50-6-106(6) may not exempt itself from liability under the Governmental Tort Liability Act (GTLA), T.C.A. §§ 29-20-101 — 29-20-408, by adopting a civil service policy that purports to provide county employees with an exclusive remedy for recovering for work-related injuries. Such policies are void to the extent that they operate to preclude injured employee from pursuing their remedies under the GTLA. Crawley v. Hamilton County, 193 S.W.3d 453, 2006 Tenn. LEXIS 432 (Tenn. 2006).

17. —Eleemosynary Institutions.

An eleemosynary institution is not exempt by this section. Smith v. Lincoln Memorial University, 202 Tenn. 238, 304 S.W.2d 70, 1957 Tenn. LEXIS 386 (1957).

18. School Board.

A school board, which is initially exempted by statute from providing workers' compensation coverage, may divide employees along professional and nonprofessional lines and may elect to provide workers' compensation benefits for nonprofessional, nonunion employees while excluding professional, certified teachers who are represented by a union. Muhlheim v. Knox County Bd. of Educ., 2 S.W.3d 927, 1999 Tenn. LEXIS 431 (Tenn. 1999), rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 620 (Tenn. Nov. 6, 2000).

19. —Agreement to Accept Provisions.

Employees exempted by this section may be brought within the provisions of the statute by agreement of the parties. Eidson v. Hardware Mut. Casualty Co., 191 Tenn. 430, 234 S.W.2d 836, 1950 Tenn. LEXIS 455 (1950).

20. Lease Agreements.

Where independent contractor owner-operator (lessor) of truck had lease agreement requiring that lessor provide both the vehicle and a driver for the vehicle, the driver, for unemployment compensation purposes, was not an employee of the lessee but was an employee of the lessor owner operator, was himself a leased operator, and in each of those capacities precluded from being an employee of the lessee. Joslin v. Michigan Mut. Ins. Co., 742 S.W.2d 263, 1987 Tenn. LEXIS 1046 (Tenn. 1987).

21. Defenses — Nature of Question Raised.

When any of the provisions of this section are relied on in defense to a compensation suit, such defense raises a question of fact, and if the finding of the trial court is supported by material evidence it will be affirmed on appeal. Standard Sur. & Cas. Co. v. Sloan, 180 Tenn. 220, 173 S.W.2d 436, 1943 Tenn. LEXIS 20, 149 A.L.R. 407 (1943).

22. Raising Question on Appeal.

Where the petition charged that at the time of the injury the employer “was operating under the Workers' Compensation Law, and carried compensation insurance on petitioner and other employees” with a named insurance company and the employer and the insurance company jointly answered and expressly “admitted” these charges and pleaded specially several specific defenses, the defendants could not on appeal raise for the first time the contention that the parties were engaged in interstate commerce at the time of the injury. Standard Sur. & Cas. Co. v. Sloan, 180 Tenn. 220, 173 S.W.2d 436, 1943 Tenn. LEXIS 20, 149 A.L.R. 407 (1943).

23. Leased Vehicles.

An owner-operator is a person who owns and operates the leased vehicle, whereas a leased-operator must be construed to be a nonowner operating a vehicle pursuant to a lease agreement. Long v. Stateline Systems, Inc., 738 S.W.2d 622, 1985 Tenn. LEXIS 542 (Tenn. 1985).

T.C.A. § 50-6-106 excludes “employees” of owner-operators or leased-operators. Long v. Stateline Systems, Inc., 738 S.W.2d 622, 1985 Tenn. LEXIS 542 (Tenn. 1985).

Collateral References.

Award of workers' compensation benefits to professional athletes. 112 A.L.R.5th 365.

Continuity and duration of employment required by provision making applicability of act depend on number of persons employed. 81 A.L.R. 1232.

Liability for injury to window washer. 28 A.L.R. 624.

Property owner's liability for injury to workmen engaged in building or repairing structure under provisions as to casual employment. 15 A.L.R. 735.

Validity, construction, and application of statutory provisions exempting or otherwise restricting farm and agricultural workers from worker's compensation coverage. 40 A.L.R.6th 99.

What is casual employment. 33 A.L.R. 1452, 60 A.L.R. 1195, 107 A.L.R. 934.

Tort liability for window washer's injury or death. 69 A.L.R.4th 207.

NOTES TO DECISIONS

1. Company Not Operating under Statute — Restricted Defenses.

If a coal company fails to comply with the Workers' Compensation Law, it is deprived of the common-law defenses of assumption of risk and contributory negligence, and the defense that the injury is due to the negligence of a fellow servant. Moore Coal Co. v. Brown, 166 Tenn. 516, 64 S.W.2d 3, 1933 Tenn. LEXIS 109 (1933).

NOTES TO DECISIONS

1. Exclusivity.

Where an employee sued an employer and several employees, alleging defamation, intentional infliction of emotional distress negligent infliction of emotional distress, invasion of privacy, negligence, false imprisonment, and misrepresentation based on allegations that a coworker falsely accused him of violating the company's alcohol policy, and that, based on these allegations, he was subjected to breath and blood alcohol tests and suspended until the results thereof, the claim were barred the workers'  compensation statute provided the exclusive remedy for an employee who was injured during the course and scope of his employment. Wiggins v. Kimberly-Clark Corp., 641 Fed. Appx. 545, 2016 U.S. App. LEXIS 2558, 2016 FED App. 94N (6th Cir.) (6th Cir. Tenn. 2016).

Although the Tennessee Workers'  Compensation Law, T.C.A. § 50-6-101, is the exclusive remedy for employees who are subject to it, the statute does not apply to a common carrier doing an interstate business while engaged in interstate commerce that is already regulated as to the employer's liability by act of Congress. Therefore, a railroad company engaged in interstate commerce, and its liability for employee injuries is determined by applying the Federal Employer Liability Act, 45 U.S.C.S. §§ 51 - 60, to substantive issues. McBee v. CSX Transp., Inc., — S.W.3d —, 2017 Tenn. App. LEXIS 129 (Tenn. Ct. App. Feb. 24, 2017).

In a case arising from a motor vehicle accident involving two co-workers, plaintiff was limited exclusively to his recovery in workers'  compensation and could not bring a common law negligence claim against his co-worker for the same incident. Williams v. Buraczynski, — S.W.3d —, 2017 Tenn. App. LEXIS 487 (Tenn. Ct. App. July 19, 2017).

Employee's claim of outrageous conduct/intentional infliction of emotional distress filed against his employer was properly dismissed based on the exclusivity of his workers'  compensation remedy because the employee had previously filed a workers'  compensation claim against the employer, seeking compensation for injuries arising out of the same incident; the employee did not allege facts showing that the agents actually intended that he be injured by their actions; and it would be inappropriate to infer actual intent to injure as the actions taken by his supervisors were related to an alleged violation of company policy, establishing a business related justification for their actions. Byrd v. Appalachian Elec. Coop., — S.W.3d —, 2018 Tenn. App. LEXIS 216 (Tenn. Ct. App. Apr. 25, 2018).

Pertinent language in the statute, which describes the benefits available under the Workers'  Compensation Law as an injured worker's exclusive remedy, has not changed; as a result, the Tennessee Supreme Court finds nothing in the Workers'  Compensation Reform Act of 2013, or subsequent amendments, that authorizes an award of pre-judgment interest. Batey v. Deliver This, Inc., — S.W.3d —, 2019 Tenn. LEXIS 18 (Tenn. Jan. 29, 2019).

Circuit court was without jurisdiction to consider an injured worker's tort claims based on negligence, fraud, and intentional misrepresentation because, although it was not determined whether the worker was employed by the general contractor or a subcontractor, the exclusive remedies provided by the Tennessee Workers'  Compensation Law, T.C.A. §§ 50-6-101 to 50-6-108, applied as the worker's personal injuries arose within the course and scope of the worker's employment at a construction site. Swindle v. Goodlow, — S.W.3d —, 2020 Tenn. App. LEXIS 72 (Tenn. Ct. App. Feb. 20, 2020).

2. Rights of Action Not Barred by Section.

Exclusivity provision of the workers'  compensation law did not apply, as the evidence did not support a finding that the assault on the restaurant manager was a natural incident of her employment, nor was it causally connected to her employment, as the assault did not occur in order to force open the safe, as she had permitted the assailant to rob the safe, and the sexual assault was not a risk inherent in her employment or a condition under which her work was required to be performed. Doe v. P.F. Chang's China Bistro, — S.W.3d —, 2017 Tenn. App. LEXIS 584 (Tenn. Ct. App. Aug. 29, 2017).

NOTES TO DECISIONS

1. Validity of Section.

This statute does not violate the constitution as a deprivation of a property right of an employee without just compensation. An employee has no property right in the common-law rules of liability applicable to relation of employer and employee prior to occurrence of an injury. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This section, in providing that rights under Workers' Compensation Law are exclusive and in precluding wife's right to sue for loss of consortium resulting from compensable injuries to husband occurring after effective date of statute, did not amount to the taking of a right without due process of law. Nichols v. Benco Plastics, Inc., 225 Tenn. 334, 469 S.W.2d 135, 1971 Tenn. LEXIS 347 (1971).

2. Construction With Other Provisions.

The state and federal statutes governing the operation of strip mines were not designed to remove the exclusive remedy provisions of the workers' compensation statute. King v. Ross Coal Co., 684 S.W.2d 617, 1984 Tenn. App. LEXIS 2992 (Tenn. Ct. App. 1984).

The phrase “in all cases” in T.C.A. § 56-7-105 and the exclusive remedy in T.C.A. § 50-6-108 denote the same degree of exclusiveness. Chandler v. Prudential Ins. Co., 715 S.W.2d 615, 1986 Tenn. App. LEXIS 3011 (Tenn. Ct. App. 1986).

T.C.A. § 50-6-108 clearly expresses a legislative intent that any potential liability of the employer arising from “injury or death” is abolished in favor of the remedy provided by workers' compensation. Harman v. Moore's Quality Snack Foods, Inc., 815 S.W.2d 519, 1991 Tenn. App. LEXIS 189 (Tenn. Ct. App. 1991).

In determining whether an employee's claims under the Tennessee Human Rights Act, T.C.A. § 4-21-101 et seq., are barred by the exclusive remedy provision of T.C.A. § 50-6-108, trial court must determine whether an employee's claim is based upon real discrimination or arises from employer misconduct that is a normal part of the employment relationship; T.C.A. § 50-6-108 will bar claims of the latter type. Harman v. Moore's Quality Snack Foods, Inc., 815 S.W.2d 519, 1991 Tenn. App. LEXIS 189 (Tenn. Ct. App. 1991).

Principal contractor liable under T.C.A. § 50-6-113 is immune to tort actions of injured employee to the same extent as the subcontractor. Mathis v. Bowater, Inc., 985 F.2d 277, 1993 U.S. App. LEXIS 1895 (6th Cir. Tenn. 1993).

Defendants in a suit for personal injuries based on allegations of negligence and strict liability in tort could not assert as an affirmative defense that the plaintiff's employer caused or contributed to the plaintiff's injuries and damages notwithstanding that the injuries were sustained in the course and scope of the plaintiff's employment. Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 1996 Tenn. LEXIS 57 (Tenn. 1996).

3. Application.

If accident arose out of and in the course of the employment, the provisions of this section control. Kaylor v. Magill, 181 F.2d 179, 1950 U.S. App. LEXIS 2576 (6th Cir. Tenn. 1950).

As between employer and employee, rights of the employee against the employer as provided by the compensation law are exclusive of all other rights and remedies. Trammell v. Appalachian Electric Co-operative, 135 F. Supp. 512, 1955 U.S. Dist. LEXIS 2610 (D. Tenn. 1955); Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 1963 Tenn. LEXIS 410 (1963); Clower v. Memphis Light, Gas & Water Div., 54 Tenn. App. 716, 394 S.W.2d 718, 1965 Tenn. App. LEXIS 288 (Tenn. Ct. App. 1965).

Decision in state court that employee was not injured in course of employment under Workers' Compensation Law would not prevent employee from recovering in civil tort action against employer in federal court. Palm Beach Co. v. Crum, 262 F.2d 586, 1958 U.S. App. LEXIS 3458 (6th Cir. Tenn. 1958).

The Workers' Compensation Act constitutes a complete substitute for the previous remedies in tort on the part of the employee. Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 1963 Tenn. LEXIS 410 (1963).

Where widow was receiving compensation benefits under Illinois law for death of her husband, employee of tower erector, she could not recover from prime contractor on theory that the tower erector was negligent and prime contractor was his employer, as both Illinois and Tennessee law provide that if an employee accepts workers' compensation, this will be the exclusive remedy against employer. Mooney v. Stainless, Inc., 338 F.2d 127, 1964 U.S. App. LEXIS 4741 (6th Cir. Tenn. 1964), cert. denied, 381 U.S. 925, 85 S. Ct. 1561, 14 L. Ed. 2d 684, 1965 U.S. LEXIS 1173 (1965).

The Workers' Compensation Law bars a common law action against the employer for injuries sustained as a result of intentional assault and battery by a fellow employee but the statute does not bar a common law action against a fellow employee who commits an intentional and malicious assault and battery upon the employee. Williams v. Smith, 222 Tenn. 284, 435 S.W.2d 808, 1968 Tenn. LEXIS 432 (1968).

T.C.A. § 50-6-108 provides the exclusive remedy for permanent disfigurement arising out of and in the course of employment. Clayton v. Pizza Hut, Inc., 673 S.W.2d 144, 1984 Tenn. LEXIS 820 (Tenn. 1984).

Where permanent disfigurement is not compensable, but the worker is compensated, or is entitled to compensation for temporary disability or medical expenses, the exclusive remedy provision of the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., extends to the entire injury and all its damages. Clayton v. Pizza Hut, Inc., 673 S.W.2d 144, 1984 Tenn. LEXIS 820 (Tenn. 1984).

Owner of project site was acting as a principal contractor, and was therefore immune to tort liability. Mathis v. Bowater, Inc., 985 F.2d 277, 1993 U.S. App. LEXIS 1895 (6th Cir. Tenn. 1993).

If an employee is able to prove that the employer had an actual intent to injure the employee, then the exclusive provisions of the Workers' Compensation Act, T.C.A. § 50-6-101 et seq., do not apply. Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 1993 Tenn. App. LEXIS 96 (Tenn. Ct. App. 1993).

The law in Tennessee requires proof of an actual intent to injure an employee in order to avoid the exclusive remedy provisions of the Workers' Compensation Act, T.C.A. § 50-6-101 et seq.Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 1993 Tenn. App. LEXIS 96 (Tenn. Ct. App. 1993).

Contract between employer and contractor recognized that the employer would be responsible for the maintenance of workers'  compensation insurance, thus implying that its workers'  compensation insurer would be looked to for the payment of benefits if an employee was injured; accordingly, the insurer was unable to show that it was an unintended third-party beneficiary of the contract and had no standing to file a claim based on the breach of contract. Travelers Prop. Cas. Co. of Am. v. Unitrac R.R. Materials, — S.W.3d —, 2007 Tenn. App. LEXIS 556 (Tenn. Ct. App. Aug. 29, 2007).

Summary judgment was properly granted to a decedent's employer in a wrongful death action on the ground that the decedent's injury was compensable under the workers’ compensation laws and that, therefore, the exclusive remedy provision in T.C.A. § 50-6-108(a) did not apply, because the time, place and circumstances test was satisfied, in that the accident occurred a reasonable interval after the decedent finished work while she was engaged in the incidental activity of talking with her co-workers. Further, the injury arose out of the decedent's employment because the danger of getting struck by a car and killed while standing off the roadway was one peculiar to her employment as a construction zone flagger. Clawson v. Burrow, 327 S.W.3d 638, 2010 Tenn. App. LEXIS 306 (Tenn. Ct. App. Apr. 30, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1094 (Tenn. Nov. 12, 2010).

After the workers'  compensation claim of an employee of a real estate and auction company was settled, the employee's common law tort claims against the employer's managing broker were dismissed because T.C.A. § 50-6-108(a) limited the employee's rights and remedies to the workers'  compensation settlement, as the employee was injured in the course of the employee's employment while assisting the managing broker of the company to move cattle panels on the managing broker's personal farm. However, the employee was permitted, under T.C.A. § 50-6-112(a), to maintain common law tort claims against the managing broker's adult child, who was called to assist after the injury occurred, because the adult child was not an affiliate, officer, director, employee, agent or representative of the employer when the employee sustained injuries and the adult child did not come within the terms of the release which the employee signed. Ridenour v. Carman, — S.W.3d —, 2013 Tenn. App. LEXIS 180 (Tenn. Ct. App. Mar. 15, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 691 (Tenn. Aug. 14, 2013).

If the employee sought to recover damages resulting from his on-the-job injury, his exclusive avenue for such a recovery was the Tennessee workers' compensation statutes because the employee had not alleged an intentional tort on the part of any defendant in the case. Thurmer v. Charter Communs., LLC, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 59713 (E.D. Tenn. Apr. 30, 2014).

4. —Employee of Independent Contractor.

Employee of independent contractor which contracted to make certain changes in paper mill was not an employee of the paper mill and therefore such employee could sue paper mill for negligence. Bowaters Southern Paper Corp. v. Brown, 253 F.2d 631, 1958 U.S. App. LEXIS 5205 (6th Cir. Tenn. 1958).

5. —Loaned Servant.

Where plaintiff was a loaned servant of defendant, the immunity from common-law liability applied both to defendant and defendant's regular employees in the same manner as in the uncomplicated case involving only one employer and his direct employees. Carpenter v. Hooker Chemical & Plastics Corp., 553 S.W.2d 356, 1977 Tenn. App. LEXIS 286 (Tenn. Ct. App. 1977).

6. —Intentional Tort Exception.

The courts have carved out an exception to exclusivity provisions of T.C.A. § 50-6-101 for intentional torts committed by an employer against an employee; these torts give rise to a common law action for damages. Coffey v. Foamex L.P., 2 F.3d 157, 1993 U.S. App. LEXIS 20135 (6th Cir. Tenn. 1993).

Tennessee courts have consistently defined the scope of the intentional tort exception to the exclusivity provisions narrowly, holding that “gross or criminal negligence” is not considered an intentional tort for this purpose. Coffey v. Foamex L.P., 2 F.3d 157, 1993 U.S. App. LEXIS 20135 (6th Cir. Tenn. 1993).

Although the Tennessee courts consider fraud to be an intentional tort, allegations of fraud resulting in worker injury do not necessarily fall outside the workers' compensation scheme. The existence of the defendant's actual intent, not the nature of the tort, determines whether common law suit is permitted; it takes more than a mere inference of tortious intent to convert the defendant's negligence into an intentional tort. Coffey v. Foamex L.P., 2 F.3d 157, 1993 U.S. App. LEXIS 20135 (6th Cir. Tenn. 1993).

In a tort action against their employer, where employees did not state that the employer actually intended to injure them, but alleged only that the employer's conduct was willful, wanton, deliberate, and grossly negligent, their claims were barred by the exclusivity provisions of T.C.A. § 50-6-108. Scarborough v. Brown Group, 935 F. Supp. 954, 1995 U.S. Dist. LEXIS 21110 (W.D. Tenn. 1995).

Employee's discrimination claims under 42 U.S.C.S. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., were not barred by the exclusive remedy provisions of the Tennessee Workers'  Compensation Law (TWCL), T.C.A. § 50-6-101 et seq., because the employee had alleged intentionally discriminatory acts which resulted in his injuries, and those contentions alone removed the case out of the exclusivity protection of the TWCL. Medrano v. MCDR, Inc., 366 F. Supp. 2d 625, 2005 U.S. Dist. LEXIS 15074 (W.D. Tenn. 2005).

Heirs'  tort claims against a decedent's employers were properly dismissed because the complaint failed to allege facts showing that employers, by requiring the decedent to to work near toxic mold, actually intended to injure her within the meaning of the intentional tort exception to T.C.A. § 50-6-108, the exclusive remedy requirement of the Tennessee Workers'  Compensation Act. Rodgers v. GCA Servs. Group, — S.W.3d —, 2013 Tenn. App. LEXIS 99 (Tenn. Ct. App. Feb. 13, 2013).

7. Guarantor of Self-Insured.

The guarantor of a self-insured employer's obligations is entitled to the same immunity as a workers' compensation insurer. Malkiewicz v. R.R. Donnelley & Sons Co., 703 F. Supp. 49, 1989 U.S. Dist. LEXIS 290 (M.D. Tenn. 1989), aff'd without opinion, 932 F.2d 968, 1991 U.S. App. LEXIS 14568 (6th Cir. Tenn. 1991).

There is no “principled” distinction between the status of a workers' compensation insurer and that of a “guarantor” who guarantees the employer's financial ability to comply with the workers' compensation statutes. Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728, 1990 Tenn. LEXIS 306 (Tenn. 1990).

Inclusion of a guarantor within the definition of “employer” so as to afford it the benefit of exclusive remedy provisions is consistent with the legislative purpose of insuring solvent and responsible sources of recovery under the compensation program. Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728, 1990 Tenn. LEXIS 306 (Tenn. 1990).

8. Election to Come under Statute — Effect on Remedies.

Before the 1973 amendment to § 50-6-103, it was held that an employee was bound by the remedies prescribed by the statute by his election to come under the statute though ignorant of its provisions. Mitchell v. Usilton, 146 Tenn. 419, 242 S.W. 648, 1921 Tenn. LEXIS 24 (1921).

9. Insufficient Facts to Show Acceptance — Effect.

Defense that employer has complied with the statute is not available in common law action where it appeared that employer had taken out insurance but had not notified commissioner as required by § 50-6-405. Cain v. Sisk, 18 Tenn. App. 84, 72 S.W.2d 1061, 1934 Tenn. App. LEXIS 15 (Tenn. Ct. App. 1934).

To show an acceptance of benefits under the compensation statute so as to exclude common-law recovery, it is not sufficient that the employer thought that the employee was applying for and receiving such benefits when the evidence does not show that he actually did so, especially where the employer rendered monthly statements of money advanced which evidenced an intention to claim repayment. Cain v. Sisk, 18 Tenn. App. 84, 72 S.W.2d 1061, 1934 Tenn. App. LEXIS 15 (Tenn. Ct. App. 1934).

10. Rights of Action Barred by Section.

This section prevents a common-law action. Williams v. Carolina, C. & O. R. Co., 154 Tenn. 224, 289 S.W. 520, 1926 Tenn. LEXIS 117 (1926); McCreary v. Nashville, C. & S. L. Ry., 161 Tenn. 691, 34 S.W.2d 210, 1930 Tenn. LEXIS 56 (1931).

If an employer has complied with the Workers' Compensation Law it is not subject to a common law suit for damages for personal injuries, since the remedy provided in the Workers' Compensation Law is exclusive. Copeland v. Cherry, 20 Tenn. App. 122, 95 S.W.2d 1275, 1936 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1936); Napier v. Martin, 194 Tenn. 105, 250 S.W.2d 35, 1952 Tenn. LEXIS 356 (1952).

Where employees of a subcontractor operating under the compensation statute were injured when a scaffold on which they were working was struck by a truck driven by an employee of the principal contractor, such employees could not maintain an action against the principal contractor and an intermediate contractor as such parties were primarily liable under the provisions of § 50-6-113, and were not “third parties” so as to be liable to suit at common law. Adams v. Hercules Powder Co., 180 Tenn. 340, 175 S.W.2d 319, 1943 Tenn. LEXIS 21, 151 A.L.R. 1352 (1943).

Widow of watchman killed while attempting to operate gate which fell upon him was not entitled to sue contractor on naval project for damages but was restricted to recovery of compensation where contractor was in charge of guards and had complied with provisions of Workers' Compensation Law. McDonald v. Dunn Const. Co., 182 Tenn. 213, 185 S.W.2d 517, 1945 Tenn. LEXIS 212 (1945).

Subcontractor for construction of road could not be sued for damages by driver of truck furnished by company for hauling stone of stone company who had contracted to furnish stone to subcontractor since subcontractor was not a third party. McVeigh v. Brewer, 182 Tenn. 683, 189 S.W.2d 812, 1945 Tenn. LEXIS 266 (1945).

Where husband was subject to Workers' Compensation Law and employer was paying him benefits under such statute for injuries, wife did not have the right to maintain common-law action for loss of services and consortium of husband as a result of such injuries. Napier v. Martin, 194 Tenn. 105, 250 S.W.2d 35, 1952 Tenn. LEXIS 356 (1952).

No action for punitive damages is allowable in a workers' compensation case. Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 1963 Tenn. LEXIS 410 (1963).

Where, under contract between defendant and plaintiff's immediate employer, the latter furnished men to work under the direction and control of defendant's representatives reconstructing generating station, plaintiff worker having collected compensation from his immediate employer's insurance carrier for injuries suffered on the reconstruction project, must be treated and considered as an employee of defendant and cannot maintain a common-law action against defendant. Clower v. Memphis Light, Gas & Water Div., 54 Tenn. App. 716, 394 S.W.2d 718, 1965 Tenn. App. LEXIS 288 (Tenn. Ct. App. 1965).

Those provisions of the act making the principal contractor liable for injuries to a subcontractor's employee to the same extent as the immediate employer, place primary liability on the principal contractor along with the subcontractor and therefore the principal contractor is not a “third party” liable to a common-law action by an employee of the subcontractor. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

This section operated to preclude wife whose husband was receiving workers' compensation benefits from employer from bringing action for loss of consortium on basis of compensable injuries to husband. Nichols v. Benco Plastics, Inc., 225 Tenn. 334, 469 S.W.2d 135, 1971 Tenn. LEXIS 347 (1971).

The Tennessee Workers' Compensation Law bars third party actions by making the rights and remedies granted to the plaintiffs the exclusive remedy. McCoy v. Wean United, Inc., 67 F.R.D. 495, 1975 U.S. Dist. LEXIS 13502 (D. Tenn. 1975).

Workers' compensation is the exclusive remedy except where the injury is caused by a third party. McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240, 1977 Tenn. LEXIS 535 (Tenn. 1977).

Where claimant was a hospital employee who suffered injury arising out of and in the course of her employment, and subsequently was admitted to the employer hospital where her injury was aggravated by negligent treatment, she was barred from suing the hospital at common law for any injury incurred while she was a patient, since the hospital was her employer and not a third party. McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240, 1977 Tenn. LEXIS 535 (Tenn. 1977).

Even if employer was guilty of gross or criminal negligence which resulted in injury to employee, so long as employer did not cause the injury intentionally employer could not be sued at common law, but sole remedy was under the Workers' Compensation Law. Cooper v. Queen, 586 S.W.2d 830, 1979 Tenn. App. LEXIS 334 (Tenn. Ct. App. 1979).

An allegation that the defendant intentionally operated its store in a negligent manner which caused the worker's injuries does not take the case out of the exclusive remedy provision of T.C.A. § 50-6-108. Estate of Schultz v. Munford, Inc., 650 S.W.2d 37, 1982 Tenn. App. LEXIS 429 (Tenn. Ct. App. 1982).

Taking together T.C.A. §§ 50-6-113 and 50-6-108 tort recovery is barred against a principal contractor. Posey v. Union Carbide Corp., 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

Co-employees are not liable for breach of an employer's duty to provide a safe work place, and the rights and remedies granted to an employee subject to this statute, on account of personal injury or death by accident, exclude all other rights and remedies. Hamilton v. Bean, 745 F.2d 1034, 1984 U.S. App. LEXIS 16951 (6th Cir. 1984).

The exclusive remedy provision of the Tennessee Workers' Compensation Law, T.C.A. § 50-6-101 et seq., bars an employee who has sustained a compensable injury covered by the law from maintaining an independent action against the workers' compensation carrier of the employer on the grounds of alleged bad faith in handling the workers' compensation claim, negligence in regard to handling that claim, and outrageous conduct. Perry v. Transamerica Ins. Group, 703 S.W.2d 151, 1985 Tenn. App. LEXIS 3143 (Tenn. Ct. App. 1985).

Consortium claims and derivative actions are within the ambit of workers' compensation exclusivity. Brewer v. Monsanto Corp., 644 F. Supp. 1267, 1986 U.S. Dist. LEXIS 21504 (M.D. Tenn. 1986).

Allegations that defendant knowingly permitted dangerous working conditions to exist and violated safety regulations is not sufficient to subject defendant to common law liability. The Workers' Compensation Law, T.C.A. § 50-6-101 et seq., provides the exclusive remedy for the entire injury and all of its damages. Mize v. Conagra, Inc., 734 S.W.2d 334, 1987 Tenn. App. LEXIS 2513 (Tenn. Ct. App. 1987).

Even though the employer allowed plaintiff to work with explosives and plaintiff was untrained and inexperienced in their use, plaintiff's allegations were insufficient as a matter of law to constitute the actual intent to injure which was necessary to avoid the exclusive remedy provisions of the Tennessee Workers' Compensation Act, T.C.A. § 50-6-101 et seq.Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 1993 Tenn. App. LEXIS 96 (Tenn. Ct. App. 1993).

Proof of safety violations, even if they are shown to be willful, do not provide a sufficient basis to infer actual intent to injure a plaintiff and, thus, deprive an injury of its accidental character for the purposes of subjecting an employer to a common law action. Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 1993 Tenn. App. LEXIS 96 (Tenn. Ct. App. 1993).

T.C.A. § 50-6-108 barred an action in tort for personal injuries brought by the employee of a subcontractor against a contractor, where the employee had recovered all workers' compensation benefits to which he was entitled from the insurer of his employer. Campbell v. Dick Broadcasting Co., 883 S.W.2d 604, 1994 Tenn. LEXIS 254 (Tenn. 1994).

Where plaintiff was covered by the workers' compensation law, he did not have a right to sue his employer in tort prior to or subsequent to the adoption of comparative fault. Castleman v. Ross Eng'g, 958 S.W.2d 720, 1997 Tenn. LEXIS 626 (Tenn. 1997).

Defendant's status as independent contractor did not place it outside the purview of T.C.A. § 50-6-108 because it was performing a non-delegable duty of the workers' compensation carrier when it failed to pay plaintiff's claim. Davis v. Alexsis, Inc., 2 S.W.3d 228, 1999 Tenn. App. LEXIS 203 (Tenn. Ct. App. 1999), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 449 (Tenn. Sept. 13, 1999).

An employer was not allowed to offer an employee an alternative benefit option that would have circumvented Tennessee workers' compensation law when the employer was aware that the employee's injury was work-related. Frayser v. Dentsply Int'l, 78 S.W.3d 242, 2002 Tenn. LEXIS 303 (Tenn. 2002), aff'd, 78 S.W.3d 242, 2002 Tenn. LEXIS 302 (Tenn. 2002).

Judicially created exception to the exclusive remedy requirement of workers compensation law, which requires actual intent, was not broad enough to include an employer's conduct that was “substantially certain” to cause injury or death. In the absence of an allegation of actual intent, the employee was limited to his workers compensation remedies. Valencia v. Freeland & Lemm Constr. Co., 108 S.W.3d 239, 2003 Tenn. LEXIS 572 (Tenn. 2003).

Court dismissed the employee's state tort law claims against the general contractor because under T.C.A. § 50-6-108, an employee could not bring a cause of action under the common law on account of personal injury or death. Medrano v. MCDR, Inc., 366 F. Supp. 2d 625, 2005 U.S. Dist. LEXIS 15074 (W.D. Tenn. 2005).

Employee, Tennessee resident who was injured in Texas, could not pursue common law tort claims against a general contractor or a co-worker as Tennessee workers'  compensation benefits had been awarded under T.C.A. § 50-6-115; exclusivity provision barred the claims under T.C.A. § 50-6-108 because the employer as a subcontractor had provided workers' compensation insurance under T.C.A. § 50-6-113. Scott v. AMEC Kamtech, Inc., 583 F. Supp. 2d 912, 2008 U.S. Dist. LEXIS 73662 (E.D. Tenn. Sept. 24, 2008).

In a personal injury case in which a worker sued a company and the company moved for summary judgment, arguing that the worker's suit was precluded by the principal contractor and exclusivity provisions of Tennessee's Workers'  Compensation Law, the worker unsuccessfully argued that his employer, not the company, retained the complete authority to control his work and that the company could not be his statutory employer. Bray v. TVA, 742 F. Supp. 2d 911, 2010 U.S. Dist. LEXIS 110222 (W.D. Tenn. Sept. 24, 2010).

Employees of a credit union who were allegedly sickened by exposure to carbon monoxide emanating from a hot water heater in the basement of their building were limited to the remedies afforded by the workers'  compensation law because their injuries had a rational, causal connection with their employment and the conditions under which their work was required to be performed. Coleman v. St. Thomas Hosp., 334 S.W.3d 199, 2010 Tenn. App. LEXIS 500 (Tenn. Ct. App. Aug. 4, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1061 (Tenn. Nov. 15, 2010).

In a personal injury case in which a worker, who had been employed by a subcontractor to a general contractor, appealed a district court's entry of summary judgment in favor of the general contractor, under T.C.A. § 50-6-108(a), the Tennessee Workers'  Compensation Act provided the worker with his exclusive remedy, the general contractor was immune under T.C.A. § 50-6-113 to the same extent as the worker's employer, and T.C.A. § 50-6-115 and was relevant to the case. Scott v. AMEC Kamtech, Inc., 412 Fed. Appx. 818, — F.3d —, 2011 U.S. App. LEXIS 3758, 2011 FED App. 111N (6th Cir.).

Employer could not be held liable for its actions as the proximate, or legal cause of a worker's injury due to its statutory immunity even though the trial court properly found that its actions were an intervening cause of the worker's injury. Long v. Quad Power Prods., LLC, — S.W.3d —, 2015 Tenn. App. LEXIS 131 (Tenn. Ct. App. Mar. 20, 2015).

11. Rights of Action Not Barred by Section.

This section does not prevent the maintenance of a common law action against third persons. Bristol Tel. Co. v. Weaver, 146 Tenn. 511, 243 S.W. 299, 1921 Tenn. LEXIS 29 (1921).

A suit by a hospital to recover for medical services rendered employee under a contract with employer is not a suit by the employee and is not barred by this section. Weakley County Hospital v. Kentucky-Tennessee Light & Power Co., 171 Tenn. 662, 107 S.W.2d 226, 1937 Tenn. LEXIS 148 (1937).

There are many injuries which are not compensable under the statute and which cannot be made compensable under the court's rule of liberal interpretation, and in such cases the injured employee may have a common law right of action for the injury sustained. Matthews v. Hardaway Contracting Co., 179 Tenn. 98, 163 S.W.2d 59, 1941 Tenn. LEXIS 99 (1942).

When the relationship of master and servant is shown to exist, the contract of employment is governed by the common law except when abrogated or modified by statute. Hammett v. Vogue, Inc., 179 Tenn. 284, 165 S.W.2d 577, 1942 Tenn. LEXIS 22 (1942).

An employee who suffers an injury not covered by the Workers' Compensation Law may have his action at law for damages, and he is not deprived of such lawful remedy because of a mistaken view of the proper remedy. Hammett v. Vogue, Inc., 179 Tenn. 284, 165 S.W.2d 577, 1942 Tenn. LEXIS 22 (1942).

Exclusive right of compensation to all employees provided for in this section did not apply where engineer employed by general contractor was run over by truck driven by employee of subcontractor since engineer did not have right or remedy of compensation against subcontractor. Olsen v. Sharpe, 191 Tenn. 503, 235 S.W.2d 11, 1950 Tenn. LEXIS 464 (1950).

Where injury to worker was aggravated by improper treatment by physician, employed by employer on a fee basis, injured employee could bring action against the physician for malpractice, notwithstanding that he received compensation under the act. Garrison v. Graybeel, 202 Tenn. 567, 308 S.W.2d 375, 1957 Tenn. LEXIS 442 (1957).

Although injured employee, injured by action of coemployee while acting in course of employment, sued coemployee at common law for negligence and later dismissed action after receiving $3,500 from coemployee in exchange for covenant not to sue, he was not estopped to assert his workers' compensation claim, since employer was not prejudiced and stipulation showed that attorney for injured employee did not know that coemployee was driving employer's automobile for which employer furnished gasoline and allowed travel time, at time of action against coemployee. Sturkie v. Bottoms, 203 Tenn. 237, 310 S.W.2d 451, 1958 Tenn. LEXIS 295 (1958).

Where employee of motor carrier was injured through negligence of shipper and concurring negligence of carrier and employee received compensation from carrier he could thereafter sue shipper in tort for damages, and if judgment was recovered against shipper such shipper was likewise entitled to judgment against carrier because of its concurring negligence. General Electric Co. v. Moretz, 270 F.2d 780, 1959 U.S. App. LEXIS 5067 (4th Cir. Va. 1959), rehearing denied, 272 F.2d 624, 1959 U.S. App. LEXIS 5061 (4th Cir. Va. 1959), cert. denied, Mason & Dixon Lines, Inc. v. General Electric Co., 361 U.S. 964, 80 S. Ct. 593, 4 L. Ed. 2d 545, 1960 U.S. LEXIS 1648 (1960).

Where plaintiff, a maintenance mechanic, had suffered chronic lymphocytic leukemia, allegedly from exposure to radioactive and toxic substances and materials, and was shown by the record to be an employee of an independent contractor conducting the Oak Ridge operations of the atomic energy commission, he was not limited to remedies under Tennessee Workers' Compensation Law but could maintain common-law action against United States as third party tortfeasor. Mahoney v. United States, 216 F. Supp. 523, 1962 U.S. Dist. LEXIS 6118 (E.D. Tenn. 1962).

Parent corporation was not an employer and thus could be sued in a wrongful death action arising from an explosion in parent company's factory where decedent was an employee of a wholly owned subsidiary which paid decedent on its own paychecks, maintained separate payroll deduction returns, held its own charter, produced seat belts essentially dissimilar from the air bags manufactured by the parent, and hired its own employees, paying them on its own checks, and where decedent was never notified that she was actually working for the parent company. Latham v. Technar, Inc., 390 F. Supp. 1031, 1974 U.S. Dist. LEXIS 6079 (E.D. Tenn. 1974).

A coemployee who causes injury while acting outside the course of his employment is not protected from liability in common-law actions arising out of the injury. Taylor v. Linville, 656 S.W.2d 368, 1983 Tenn. LEXIS 714 (Tenn. 1983).

A corporate employer is liable for intentional torts carried out at the behest of the corporate employer but through corporate employees. Brewer v. Monsanto Corp., 644 F. Supp. 1267, 1986 U.S. Dist. LEXIS 21504 (M.D. Tenn. 1986).

Because an employer's intentional torts are outside the workers' compensation bar, none of the injuries flowing from the intentional tort can be forced back into the statute's scope. Brewer v. Monsanto Corp., 644 F. Supp. 1267, 1986 U.S. Dist. LEXIS 21504 (M.D. Tenn. 1986).

The only claims of relatives that are barred by T.C.A. § 50-6-108 are those that are based on the relationship to an injured employee; actions based on injuries independent of that relationship, even though mediated by an employee, have never been barred in Tennessee. Brewer v. Monsanto Corp., 644 F. Supp. 1267, 1986 U.S. Dist. LEXIS 21504 (M.D. Tenn. 1986).

Neither the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., nor the federal labor laws, nor employee's failure to make use of the grievance procedure barred employee's tort actions against another employee. Blair v. Allied Maintenance Corp., 756 S.W.2d 267, 1988 Tenn. App. LEXIS 317 (Tenn. Ct. App. 1988).

Administratrix was not precluded from pursuing tort claims against the general contractor under the exclusive remedy provisions of the Tennessee Workers'  Compensation Law, T.C.A. § 50-6-101 et seq., because if the administratrix's contention that the company that the deceased worked for was not a subcontractor of the general contractor, but a separate general contractor was true, the administratrix could have conceivably pursued a claim against a separate party not protected by the exclusive remedy provisions. Therefore, the court could not have concluded, based on the bare allegations of the general contractor, that it was the statutory employer of the deceased and thus insulated by the Tennessee Workers'  Compensation Law. Medrano v. MCDR, Inc., 366 F. Supp. 2d 625, 2005 U.S. Dist. LEXIS 15074 (W.D. Tenn. 2005).

Defendant employer had waived the exclusivity provision of Tennessee's workers' compensation statute, T.C.A. § 50-6-108(a), given the late date in a former employee's action alleging intentional infliction of emotional distress; the failure to raise the defense of the exclusivity provision of Tennessee's workers' compensation statute, T.C.A. § 50-6-108(a), is treated like a statute of limitations defense and is waived if not raised early in the proceeding. Pollard v. E.I. DuPont De Nemours, Inc., 412 F.3d 657, 2005 FED App. 274P, 2005 U.S. App. LEXIS 11949 (6th Cir. Tenn. 2005).

12. Subsequent Injuries.

In the field of workers' compensation law, and in suits by a worker against his employer, the initial injury is the cause of all that follows, even where there is superimposed upon the original injury, a new, or additional or independent, injury during the course of treatment, negligent or otherwise. McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240, 1977 Tenn. LEXIS 535 (Tenn. 1977).

13. Widow's Acceptance of Indemnity for Herself and Minors — Effect.

Prior to the 1949 amendment to § 50-6-112, a widow's acceptance of death benefits under this act barred any action by the personal representative, dependents or next of kin against employer or third party for wrongful death. McCreary v. Nashville, C. & S. L. Ry., 161 Tenn. 691, 34 S.W.2d 210, 1930 Tenn. LEXIS 56 (1931).

14. Recovery under Law of Another State.

The Tennessee Workers' Compensation Law does not preclude recovery under the law of another state, and the full faith and credit clause does not require that greater effect be given the Tennessee statute elsewhere than is given in the courts of this state. Ohio v. Chattanooga Boiler & Tank Co., 289 U.S. 439, 53 S. Ct. 663, 77 L. Ed. 1307, 1933 U.S. LEXIS 189 (1933).

Under certain circumstances, the pursuit of a compensation claim in another jurisdiction may preclude the filing of the same claim in the courts of Tennessee, especially where it results in an award or an approved settlement. Gray v. Holloway Constr. Co., 834 S.W.2d 277, 1992 Tenn. LEXIS 363 (Tenn. 1992).

15. —Recovery in Tennessee Precluded.

The common thread in Perkins v. BE & K, Inc., 802 S.W.2d 215, 1990 Tenn. LEXIS 486 (Tenn. 1990) and Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221, 1931 Tenn. LEXIS 131 (1931), cases in which recovery in Tennessee was held to be precluded, is the fact that workers injured in other jurisdictions had both filed out-of-state claims and received awards in those courts or entered into settlements approved by industrial commissions in those states. Gray v. Holloway Constr. Co., 834 S.W.2d 277, 1992 Tenn. LEXIS 363 (Tenn. 1992).

16. —Recovery in Tennessee Not Precluded.

The common thread in Thomas v. Transport Insurance Co., 532 S.W.2d 263, 1976 Tenn. LEXIS 603 (Tenn. 1976) and Hale v. Commercial Union Assurance Cos., 637 S.W.2d 865, 1982 Tenn. LEXIS 342 (Tenn. 1982), opinions in which the court held that recovery was not precluded, is the fact that the workers in those cases had done no more than accept benefits tendered by their employers' insurance carriers upon notice of injury, at a time when they had too little knowledge to make an “informed choice” about which of two remedies they wished to pursue, and in what forum. Gray v. Holloway Constr. Co., 834 S.W.2d 277, 1992 Tenn. LEXIS 363 (Tenn. 1992).

17. Pleading and Proof.

In a common-law action by an injured employee to recover damages for personal injuries, defendant may, under the general issue, show that plaintiff was not its employee, or it may show under its plea of not guilty that it had compensation insurance. Copeland v. Cherry, 20 Tenn. App. 122, 95 S.W.2d 1275, 1936 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1936).

Where a common-law right of action is brought, the defendant, if he claims the benefits of the Workers' Compensation Law, should plead such statute specially. Hammett v. Vogue, Inc., 179 Tenn. 284, 165 S.W.2d 577, 1942 Tenn. LEXIS 22 (1942).

Where employee sued at common law to recover damages for personal injuries from the employer without alleging that the parties had not accepted the provisions of the Workers' Compensation Law and the employer failed to rely on the provisions of the statute as an affirmative defense and where there was no reference to the statute in the pleadings, such employer was not entitled to rely on the provisions of the statute as grounds for an arrest of judgment. Hammett v. Vogue, Inc., 179 Tenn. 284, 165 S.W.2d 577, 1942 Tenn. LEXIS 22 (1942).

18. —Burden of Establishing Action under Statute.

Burden was not on employer to establish that employee's action was under this law and not under the common law, until the employee, who sued in negligence under the common law, had made out a prima facie case of liability upon the principles of law relied on in his declaration. Watson v. Borg-Warner Corp., 190 Tenn. 209, 228 S.W.2d 1011, 1950 Tenn. LEXIS 441 (1950).

19. —Concurrent Procedure under State and Federal Statutes.

Where it is difficult to tell whether a particular case falls under this statute or the federal Employers' Liability Act (former 45 U.S.C. § 51 et seq.), it may be possible to proceed under both statutes until the facts are developed, so that suit in federal court under federal act will not estop one to claim under state act. Southern R. Co. v. Grigsby, 155 Tenn. 285, 292 S.W. 3, 1926 Tenn. LEXIS 46 (1927).

20. —Pendency of Common-Law Action — Effect.

Pendency of common-law action for damages for wrongful death of husband is no bar to suit for compensation under this statute begun within the statutory period. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

21. Employer as Joint Tortfeasor.

Where an employee was killed by the concurrent negligence of the employer and a third party, the immunity of the employer under this section from tort liability for the employee's death did not also render the employer immune from liability for indemnity as a joint tortfeasor to the third party under a “save harmless” contract with the third party, who had paid a judgment for damages for the wrongful death of the employee. Brogdon v. Southern R. Co., 384 F.2d 220, 1967 U.S. App. LEXIS 5157 (6th Cir. Tenn. 1967).

No right of contribution exists in favor of a third person tortfeasor against an employer of the person injured or killed where the employer would have no tort liability unto the injured or killed employee because of the provisions of this act which does away with any tort liability upon the part of the employer. Smith v. Illinois C. R. Co., 263 F. Supp. 70, 1967 U.S. Dist. LEXIS 7329 (E.D. Tenn. 1967).

By virtue of this section the employer is not liable in tort for injuries sustained by his employees in the course of their employment, whether such liability is sought to be imposed by an action for contribution from a joint tortfeasor or by an action for indemnity under the Tennessee active-passive negligence rule. Union Carbide Corp. v. Dunn Bros. General Contractors, Inc., 294 F. Supp. 704, 1968 U.S. Dist. LEXIS 8019 (M.D. Tenn. 1968).

22. Contribution by Joint Tortfeasor.

Where an employee of a company sued a supplier of that company for damages for personal injuries suffered due to the alleged negligence of the supplier, and, but for the application of this statute, could have sued his employer and the supplier as joint tortfeasors, Tennessee law did not permit the supplier, in the absence of a contractual obligation on the part of the employer to make contribution, to sue for contribution from the employer on the ground that it was also guilty of some similar or equally causative, but different, negligent acts, which might also have constituted a proximate cause of the injury to the employee. Dawn v. Essex Conveyors, Inc., 379 F. Supp. 1342, 1973 U.S. Dist. LEXIS 12024 (E.D. Tenn. 1973).

23. Indemnity of Third Party Tortfeasor by Employer.

An employer who has paid an injured employee benefits under this statute is not liable for indemnity to a third party tortfeasor under the Tennessee active-passive negligence doctrine since, in view of this section, the employer could share no common tort liability with the third party tortfeasor. Dawn v. Essex Conveyors, Inc., 498 F.2d 921, 1974 U.S. App. LEXIS 8036 (6th Cir. Tenn. 1974), cert. denied, Process Equipment Engineering Co. v. Tennessee Eastman Co., 419 U.S. 1040, 95 S. Ct. 528, 42 L. Ed. 2d 317, 1974 U.S. LEXIS 3534 (1974).

A third-party indemnity action against an employer, based upon an express contract of indemnity, is barred by the “exclusive remedy” provision of the Tennessee Workers' Compensation Law. Tennessee River Pulp & Paper Co. v. Eichleay Corp., 708 F.2d 1055, 1983 U.S. App. LEXIS 27128 (6th Cir. Tenn. 1983).

24. Third Party Indemnity Actions.

Although in Tennessee River Pulp & Paper Co. v. Eichleay Corp., 708 F.2d 1055, 1983 U.S. App. LEXIS 27128 (6th Cir. 1983), the sixth circuit held that under Tennessee law all third-party indemnity actions against an employer, even though based upon an express contract of indemnity, were barred by the exclusive remedy provision of the Tennessee Workers' Compensation Law, on May 9, 1985, T.C.A. § 50-6-108 was amended to provide that “this section shall not be construed to preclude third party indemnity actions against an employer who has expressly contracted to indemnify such third party” and, since this amendment postdates the sixth circuit's decision in Tennessee River Pulp, the court accepted it as dispositive of this issue. Davison Specialty Chemical Co. v. S & H Erectors, Inc., 621 F. Supp. 783, 1985 U.S. Dist. LEXIS 16481 (E.D. Tenn. 1985).

A third party indemnity action against an employer for damages recovered by an injured employee against the third party is not barred by T.C.A. § 50-6-108 when the action is based on an express contract. Easter v. Exxon Co., USA, 699 S.W.2d 168, 1985 Tenn. App. LEXIS 2950 (Tenn. Ct. App. 1985).

25. Retaliatory Discharge.

An employee at will who is discharged because the employee filed a workers' compensation claim has a cause of action for retaliatory discharge against the employer. Such cause of action warrants the recovery of both compensatory and punitive damages, and would not be within the exclusive remedy rule provided by T.C.A. § 50-6-108. Leatherwood v. United Parcel Service, 708 S.W.2d 396, 1985 Tenn. App. LEXIS 3279 (Tenn. Ct. App. 1985).

An employer's failure to provide alternative employment does not constitute retaliatory discharge within the meaning of the cause of action established in Clanton v. Cain-Sloan Company, 677 S.W.2d 441, 1984 Tenn. LEXIS 935 (Tenn. 1984). Leatherwood v. United Parcel Service, 708 S.W.2d 396, 1985 Tenn. App. LEXIS 3279 (Tenn. Ct. App. 1985).

Collateral References.

Assault, Workers' Compensation Act as providing exclusive remedy for injury by. 72 A.L.R. 117, 112 A.L.R. 1258.

Common-law remedy against general employer by employee of independent contractor or against independent contractor by employee of subcontractor as affected by specific provisions of Workers' Compensation Act relating to such employees. 151 A.L.R. 1359, 166 A.L.R. 813.

Construction and application of exclusive remedy rule under state workers'  compensation statute with respect to liability for injury or death of employee as passenger in employer-provided vehicle — Against whom may rule be invoked and application of rule to particular situations and employees. 43 A.L.R.6th 375.

Construction and application of exclusive remedy rule under state workers'  compensation statutes with respect to liability for injury or death of employee as passenger in employer-provided vehicle — Requisites for, and factors affecting, applicability and who may invoke rule. 42 A.L.R.6th 545.

Contractual waiver of exclusivity of workers' compensation remedy. 117 A.L.R.5th 441.

Employer's liability for negligence of employee in driving his or her own automobile. 27 A.L.R.5th 174.

Exclusive remedy provision of state workers'  compensation statute as applied to injuries sustained during or as the result of horseplay, joking, fooling, or the like. 44 A.L.R.6th 545.

Federal Safety Appliance Act, state Workers' Compensation Act as precluding action based on noncompliance with, to recover for death of, or injury to, railroad employee while engaged in intrastate commerce. 98 A.L.R. 511, 104 A.L.R. 839.

Husband or wife of injured employee, compensation act as precluding common-law action by. 104 A.L.R. 346.

Medical or surgical treatment of employee after injury. Workers' Compensation Act as affecting liability of or remedy against employer for injury due to. 127 A.L.R. 1108.

Minor employees, election of remedies by. 14 A.L.R. 818.

Physician rendering services to injured employee, exclusiveness of remedy of, under Workers' Compensation Act, precluding recovery in action on contract. 72 A.L.R. 1016, 143 A.L.R. 1264.

Postaccident conduct by employer, employer's insurer, or employer's employees in relation to workers' compensation claim as waiving, or estopping employer from asserting, exclusivity otherwise afforded by workers' compensation statute. 120 A.L.R.5th 513.

Pre-emption by workers' compensation statute of employee's remedy under state “whistleblower” statute. 20 A.L.R.5th 677.

Third person's negligence, rights and remedies where employee was injured by. 19 A.L.R. 766, 27 A.L.R. 493, 37 A.L.R. 838, 67 A.L.R. 249, 88 A.L.R. 665, 106 A.L.R. 1040.

Workers' Compensation Act as exclusive of remedy by action against employer for injury or disease not compensable under act. 100 A.L.R. 519, 121 A.L.R. 1143.

Workers' Compensation Act as furnishing exclusive remedy for employee injured by product manufactured, sold, or distributed by employer. 9 A.L.R.4th 873.

Workers' compensation as precluding employee's suit against employer for sexual harassment in the workplace. 51 A.L.R.5th 163.

Workers' compensation provision as precluding employee's action against employer for fraud, false imprisonment, defamation, or the like. 46 A.L.R.3d 1279.

NOTES TO DECISIONS

1. Construction.

The “penalty” referred to in this section is the penalty prescribed in the statute which may have been violated in any given case and does not affect the contractual rights of the parties under the Workers' Compensation Law. Louisville & N. R. Co. v. Nichols, 168 Tenn. 672, 80 S.W.2d 656, 1934 Tenn. LEXIS 98, 98 A.L.R. 508 (1935).

2. Violation of Federal Statute.

Employee of railroad injured in accident in intrastate commerce who had elected to take under Workers' Compensation Law could not sue railroad for damages at common law though injury was due to violation by railroad of federal Safety Appliance Act (45 U.S.C. § 1 et seq.). Louisville & N. R. Co. v. Nichols, 168 Tenn. 672, 80 S.W.2d 656, 1934 Tenn. LEXIS 98, 98 A.L.R. 508 (1935).

Collateral References.

Recovery for discharge from employment in retaliation for filing worker's compensation claim. 32 A.L.R.4th 1221.

Violation of employment rule as barring claim for workers' compensation. 61 A.L.R.5th 375.

NOTES TO DECISIONS

1. Failure to Rebut Presumption.

Trial court correctly found that an employee failed to rebut by clear and convincing evidence the presumption that the drugs revealed in his drug screen were the proximate cause of his injury because the evidence he submitted consisted entirely of his own testimony; the expert medical witness testified that the results of the drug screen were inconsistent with the employee's version of events because they showed he had taken non-prescribed medications shortly before the accident. Austin v. Roach Sawmill & Lumber Co., — S.W.3d —, 2016 Tenn. LEXIS 748 (Tenn. Oct. 26, 2016), aff'd, — S.W.3d —, 2016 Tenn. LEXIS 747 (Tenn. Oct. 26, 2016).

2. Recreational or Social Activity.

Workers'  Compensation Appeals Board properly reversed the trial court's determination that the claimant's knee injury was compensable as his injury arose from his voluntary participation in a mud run charity event because his participation in the mud run was not required as the individual, who was the primary source of pressure on the claimant to participate, had no supervisory authority over the claimant, and the claimant was not threatened with any adverse employment action if he declined to participate; and the mud run was not work-related as the claimant was not compensated for his time, he was not required to make sales or to network, and his participation in the mud run was a departure from his normal duty of selling cars. Pope v. Nebco of Cleveland, Inc., — S.W.3d —, 2018 Tenn. LEXIS 146 (Tenn. Jan. 16, 2018).

NOTES TO DECISIONS

1. Application.

This section is limited in application to willful failure or refusal. Louisville & N. R. Co. v. Nichols, 168 Tenn. 672, 80 S.W.2d 656, 1934 Tenn. LEXIS 98, 98 A.L.R. 508 (1935).

This section neither provides for nor contemplates a recovery independent of the statute but states and deals with a situation in which the injured party could not recover in any form of action. Louisville & N. R. Co. v. Nichols, 168 Tenn. 672, 80 S.W.2d 656, 1934 Tenn. LEXIS 98, 98 A.L.R. 508 (1935).

The issue of willful misconduct is a question of fact rather than of law. Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959).

Four-step test was used when analyzing an assertion that an employee's claim for workers'  compensation benefits was barred by the employee's willful misconduct or failure to use a safety device, and those steps are: (1) the employee's actual, as opposed to constructive, notice of a safety rule; (2) the employee's understanding of the danger involved in violating the rule; (3) the employer's bona fide enforcement of the rule; and (4) the employee's lack of a valid excuse for violating the rule. Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442, 2012 Tenn. LEXIS 300 (Tenn. May 8, 2012).

2. Burden of Proof.

The burden of proof is on the employer to show that injury was due to willful misconduct or intoxication. Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S.W.2d 860, 1928 Tenn. LEXIS 119 (1928); Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928); Gentry v. Lilly Co., 225 Tenn. 708, 476 S.W.2d 252, 1971 Tenn. LEXIS 332 (1971); Overall v. Southern Subaru Star, Inc., 545 S.W.2d 1, 1976 Tenn. LEXIS 614 (Tenn. 1976).

Before workers' compensation can be denied for misconduct, it must appear such misconduct, if any, was willful as opposed to inadvertent and the burden of proof is on the employer if he invokes the defense. Hoodenpyle v. Patterson, 197 Tenn. 621, 277 S.W.2d 351, 1955 Tenn. LEXIS 328 (1955).

The employer or insurance carrier raising the question has the burden of proof to show that the injury was due to the willful misconduct of the employee. Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959).

In view of this section and § 50-6-116, the employer and its carrier carry the burden of proof that actions or conduct of an employee constitute intentional self-infliction or misconduct sufficiently willful to bar compensation. Wheeler v. Glens Falls Ins. Co., 513 S.W.2d 179, 1974 Tenn. LEXIS 461 (Tenn. 1974).

In order to invoke this section as a defense to a work-related injury or death due to the employee's intoxication, the employer has the burden of establishing proximate cause. Overall v. Southern Subaru Star, Inc., 545 S.W.2d 1, 1976 Tenn. LEXIS 614 (Tenn. 1976).

In the absence of any evidence in the record that decedent willfully violated any order, notice, rule, regulation or prohibition of any kind, defendant employer had not met its burden of proof, and its defense of “willful misconduct” or “willful failure or refusal to use a safety appliance” failed. Wright v. Gunther Nash Mining Constr. Co., 614 S.W.2d 796, 1981 Tenn. LEXIS 434 (Tenn. 1981).

3. Willful Misconduct — Facts Constituting.

However careless, and even reckless, the conduct of the employee may have been in subjecting himself unnecessarily to danger, if not willful and intentional, it will not bar a recovery. Moore v. Cincinnati, N. O. & T. P. R. Co., 148 Tenn. 561, 256 S.W. 876, 1923 Tenn. LEXIS 43 (1923), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

“Willfully” means intentionally, that is, the person doing the act intended at the time to perform that act. Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355, 1924 Tenn. LEXIS 5 (1924).

Where death was due to employee's continuous and steadfast refusal to accept any medical services, there is willful misconduct barring recovery by deceased's widow and minor dependents. Hughes v. Elliott, 162 Tenn. 188, 35 S.W.2d 387, 1930 Tenn. LEXIS 78 (1931).

Willful misconduct within the meaning of this section means something more than mere negligence and carries the idea of deliberation and intentional wrongdoing. Glass v. Sullivan, 170 Tenn. 230, 94 S.W.2d 381, 1936 Tenn. LEXIS 6 (1936).

Willful misconduct connotes intentional misconduct and purposeful violation of established rules of safety and orders for protection from danger. Brown v. Birmingham Nurseries, 173 Tenn. 343, 117 S.W.2d 739, 1937 Tenn. LEXIS 31 (1938).

Where an employee with full knowledge of the danger involved and a familiarity with the safety rules disregards such rules and is injured, his conduct is willful within the meaning of the statute and no recovery can be had. Cordell v. Kentucky-Tennessee Light & Power Co., 173 Tenn. 596, 121 S.W.2d 970, 1938 Tenn. LEXIS 46 (1938).

Not only does “willful misconduct” connote intentional, purposeful violation of orders, but also an element of perverseness. American Mut. Liability Ins. Co. v. Garth, 174 Tenn. 297, 125 S.W.2d 140, 1938 Tenn. LEXIS 92 (1939); Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959).

Where employee was shot and killed by fellow servant after he made an unprovoked attack on such fellow servant in an encounter which was personal between the parties, homicide did not arise out of and in course of employment and employee was guilty of willful misconduct. Sandlin v. Gentry, 201 Tenn. 509, 300 S.W.2d 897, 1957 Tenn. LEXIS 330 (1957).

Employee injured as a result of his placing open flame near can of gasoline at his place of employment after working hours in the presence of his girl friend, the employer's sales supervisor and the supervisor's wife after having been warned by the supervisor not to do so was not entitled to compensation. Webster v. Seven-Up Bottling Co., 211 Tenn. 8, 362 S.W.2d 244, 1962 Tenn. LEXIS 332 (1962).

Where defendant was injured when he punched or goosed a fellow employee in his ribs for no reason but to see his reaction therefrom and within five minutes after having been ordered not to do so, this was considered willful misconduct. Insurance Co. of America v. Hogsett, 486 S.W.2d 730, 1972 Tenn. LEXIS 330 (Tenn. 1972).

The statutory “willful misconduct” defense, whatever its actual general definition, has in practical application been largely limited to the deliberate and intentional violation of known regulations designed to preserve the employee from serious bodily harm. Wright v. Gunther Nash Mining Constr. Co., 614 S.W.2d 796, 1981 Tenn. LEXIS 434 (Tenn. 1981).

The term “willful” as used in T.C.A. § 50-6-110 is not defined in the code. Wright v. Gunther Nash Mining Constr. Co., 614 S.W.2d 796, 1981 Tenn. LEXIS 434 (Tenn. 1981).

Employee who was in violation of store's safety rules by engaging in intentional horseplay, which was the proximate cause of the employee's injury and which constituted willful misconduct under T.C.A. § 50-6-110(a), was barred from receiving workers' compensation benefits. Rogers v. Kroger Co., 832 S.W.2d 538, 1992 Tenn. LEXIS 409 (Tenn. 1992).

Award of workers'  compensation benefits to an employee who was injured when the employee came in contact with an electrical wire while working as a lineman was barred due to the employee's failure to use a safety device because: (1) the employee had actual, not merely constructive, notice of the employer's rule requiring the employee to wear safety gloves; (2) the employee understood the danger involved in violating the rule; (3) the employee admitted the employer consistently enforced the rule; and (4) the employee had no valid excuse for violating the rule, as the employee's concern that the employee would damage the gloves was not such an excuse, since the employer would immediately replace the gloves at no cost to the employee, nor was the fact that the gloves made the employee's job more difficult, and the employee's failure to use the gloves proximately caused the employee's injury, so the employee's violation was willful, not merely negligent or reckless. Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442, 2012 Tenn. LEXIS 300 (Tenn. May 8, 2012).

Award of workers'  compensation benefits to an employee who was injured when the employee came in contact with an electrical wire while working as a lineman was barred due to willful misconduct because: (1) the employee had actual, not merely constructive, notice of the employer's rule requiring the employee to wear safety gloves, (2) the employee understood the danger involved in violating the rule; (3) the employee admitted the employer consistently enforced the rule; and (4) the employee had no valid excuse for violating the rule, as the employee's concern that the employee would damage the gloves was not such an excuse, since the employer would immediately replace the gloves at no cost to the employee, nor was the fact that the gloves made the employee's job more difficult, and the employee's failure to use the gloves proximately caused the employee's injury, so the employee's violation was willful, not merely negligent or reckless. Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442, 2012 Tenn. LEXIS 300 (Tenn. May 8, 2012).

4. Willful Misconduct — Facts Not Constituting.

Employee's crawling under train to go to his home where there was a safe alternative way was not willful misconduct. Moore v. Cincinnati, N. O. & T. P. R. Co., 148 Tenn. 561, 256 S.W. 876, 1923 Tenn. LEXIS 43 (1923), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Operating a motor truck without license required by city ordinance is not willful misconduct. Bohlen-Huse Coal & Ice Co. v. McDaniel, 148 Tenn. 628, 257 S.W. 848, 1923 Tenn. LEXIS 48 (1924).

Use of gloves with loose and flabby cuffs in operating gin saws is not willful misconduct. Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355, 1924 Tenn. LEXIS 5 (1924).

A mere disregard, not willful or deliberate, is not willful misconduct where it is a thoughtless act on the spur of the moment. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924).

Death from gas explosion when miner entered room with open lamp with the permission of his foreman was not due to willful misconduct precluding recovery, though he and foreman had found the room unsafe by test about three hours previous. Mullins v. Tennessee Stave & Lumber Co., 155 Tenn. 132, 290 S.W. 975, 1926 Tenn. LEXIS 27 (1927).

Refusal of widow to consent to an autopsy on demand of interested party is not willful misconduct. Lenoir Car Works v. Hill, 163 Tenn. 578, 44 S.W.2d 321, 1931 Tenn. LEXIS 151 (1931).

In compensation proceedings for death of automobile driver which occurred while he was driving the automobile of his employer in another state at a speed of 50 miles per hour when the speed limit was 40 miles per hour, the fact that the driver was driving in excess of the statutory limit did not amount to willful misconduct in absence of evidence that he was aware of the speed limit in such state. Southern Motor Car Co. v. Patterson, 168 Tenn. 252, 77 S.W.2d 446, 1934 Tenn. LEXIS 47 (1935).

Where employee who had gone without sleep for 36 hours and was apparently very tired turned operation of employer's truck over to a third party against employer's orders but where such third person was an expert driver and the employee sat in the seat alongside, the employee was not guilty of willful misconduct within the meaning of this section so as to bar recovery where the steering gear of the truck locked so that the truck left the road, overturned, caught fire and burned the employee fatally. Glass v. Sullivan, 170 Tenn. 230, 94 S.W.2d 381, 1936 Tenn. LEXIS 6 (1936).

In suit by municipal employee against the municipality for compensation under the Workers' Compensation Law, the fact that petitioner was violating a municipal ordinance by fast driving was not such willful misconduct as would bar recovery under the act. Shelbyville v. Hamilton, 170 Tenn. 297, 95 S.W.2d 43, 1935 Tenn. LEXIS 136 (1936).

Where an employee engaged in cleaning ashes out of the combustion chamber of large boiler entered such chamber to facilitate his work despite orders by his superior and as a result was fatally burned and where the facts justified the conclusion that he acted impulsively rather than deliberately in committing an error of judgment in what he regarded as the demanded interest of his employer while having in mind the result desired to be accomplished and believing that he was proceeding safely, the acts of such employee did not constitute “willful misconduct” so as to bar recovery of compensation. American Mut. Liability Ins. Co. v. Garth, 174 Tenn. 297, 125 S.W.2d 140, 1938 Tenn. LEXIS 92 (1939).

Where a motorcycle messenger was proceeding south at a speed of 20 or 30 miles per hour behind a line of cars on the right side of the street in a drizzling rain when he struck a car which was turning right after coming from the south, such messenger might have been guilty of negligence but his conduct was not such as to bar recovery under the statute as amounting to willful misconduct. W. C. Sharp Drug Stores v. Hansard, 176 Tenn. 595, 144 S.W.2d 777, 1940 Tenn. LEXIS 106 (1940).

Employee was not barred from compensation on the ground of willful injury merely because he was scuffling with other employees while riding home from work in employer's truck. Taylor v. Meeks, 191 Tenn. 695, 236 S.W.2d 969, 1951 Tenn. LEXIS 372 (1951).

Inadvertence, mistake of judgment, negligence or even gross negligence does not constitute willful misconduct. Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959).

Where record showed that physician prescribed diet, rest and the use of certain medications, advised against the use of alcohol and warned against strenuous exercise, but did not specifically forbid employee to continue his work as a trim carpenter or inform him that he was placing himself in imminent peril by doing so, employee who continued to work but who otherwise followed physician's orders was not guilty of willful misconduct even though his death was due to aggravation of his preexisting heart condition as a result of his work. Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959).

Truck driver injured during “horseplay” initiated by himself while awaiting assignment in accordance with employer's instructions was entitled to compensation. Ransom v. H. G. Hill Co., 205 Tenn. 377, 326 S.W.2d 659, 1959 Tenn. LEXIS 374 (1959).

Where an employee, with a five-year history of alcoholism and related diseases including pancreatitis and cirrhosis of the liver, while on duty as a policeman, fell on an icy street which aggravated degenerative arthritis in his neck and back, causing extreme pain and preventing him from working, and he then began drinking more heavily until six months later, after acute delirium tremens, a marked liver enlargement and a collapse, he was admitted to the hospital in a comatose state and died of acute necrotizing pancreatitis contributed to by bilateral lobular pneumonia and cirrhosis, the court held that his fall, which occurred in the course of his employment, was the proximate cause of his death, that he was not guilty of willful misconduct or intentional self-inflicted injury as defined by this section, and that his survivor was entitled to recover full compensation for his injury and death. Wheeler v. Glens Falls Ins. Co., 513 S.W.2d 179, 1974 Tenn. LEXIS 461 (Tenn. 1974).

When an employee is performing the duties assigned to him by his employment contract and is acting in furtherance of his employer's interests, regardless of the fact that he performs those duties in an unnecessarily dangerous or rash manner, it cannot be said that his resulting injuries did not arise out of his employment, provided that his conduct could be reasonably contemplated. Wright v. Gunther Nash Mining Constr. Co., 614 S.W.2d 796, 1981 Tenn. LEXIS 434 (Tenn. 1981).

Disobedience of a rule is not willful misconduct where the rule is habitually disregarded with the knowledge and acquiescence of the employer; the employer has waived the so-called “rule” and is estopped to invoke it against the misled employee. Bryan v. Paramount Packaging Corp., 677 S.W.2d 453, 1984 Tenn. LEXIS 852 (Tenn. 1984).

It takes more than a mere inference of tortious intent to convert an employer's negligence into an intentional tort. King v. Ross Coal Co., 684 S.W.2d 617, 1984 Tenn. App. LEXIS 2992 (Tenn. Ct. App. 1984).

Allegations which establish gross or criminal negligence fall short of alleging actual intent to injure; there is a distinct difference in fact and law between gross or criminal negligence and actual intent to injure. King v. Ross Coal Co., 684 S.W.2d 617, 1984 Tenn. App. LEXIS 2992 (Tenn. Ct. App. 1984).

Driving in excess of the speed limit is not willful misconduct per se. Loy v. North Bros. Co., 787 S.W.2d 916, 1990 Tenn. LEXIS 159 (Tenn. 1990).

5. Violation of Rule or Instruction.

A laundry employee injured while pressing a skirt for a fellow employee on a day of the week when individual laundering was forbidden and after regular work hours was not in course of employment. Hinton Laundry Co. v. De Lozier, 143 Tenn. 399, 225 S.W. 1037, 1920 Tenn. LEXIS 27, 16 A.L.R. 1361 (1920).

Injury to ore shoveler when he was voluntarily and against positive instructions loosening supporting chain of swinging floor doors of freight car is not compensable in view of this section as to willful and intentional injuries and § 50-6-102. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924).

If a workman is acting within the scope of his employment, a mere disregard of an order does not become willful misconduct unless the disobedience be in fact willful or deliberate, and not merely a thoughtless act on the spur of the moment. Kingsport Foundry & Machine Works, Inc. v. Sheffey, 156 Tenn. 150, 299 S.W. 787, 1927 Tenn. LEXIS 97 (1927).

Employee's use of emery wheel in smoothing casting contrary to previous instructions not to use wheel did not constitute willful disobedience where order was made because wheel was considered not effective rather than because it was considered dangerous and employee used it to hasten the work in compliance with employer's wishes, the order as to the wheel dealing with conduct within sphere of employment rather than limiting such sphere. Kingsport Foundry & Machine Works, Inc. v. Sheffey, 156 Tenn. 150, 299 S.W. 787, 1927 Tenn. LEXIS 97 (1927).

Failure of employee to observe rule requiring wearing of rubber gloves in handling electric wires because he reasonably supposed from conduct and statements of a fellow worker that the wires with which he was working were dead held not a willful disregard of the rule nor action upon his own judgment. Knoxville Power & Light Co. v. Barnes, 156 Tenn. 184, 299 S.W. 772, 1927 Tenn. LEXIS 101 (1927), overruled, Standard Glass Co. v. Wallace, 189 Tenn. 213, 225 S.W.2d 35, 1949 Tenn. LEXIS 417 (1949), overruled in part, Standard Glass Co. v. Wallace, 189 Tenn. 213, 225 S.W.2d 35, 1949 Tenn. LEXIS 417 (1949).

Fact that employee, whose duties were to accompany and care for carload of poultry while in transit, was found dead outside of the car, with feet mangled, does not establish a departure from his employment in the sense of the act. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928).

A miner, disregarding a positive instruction not to work under a dangerous impending rock, is guilty of deliberate and willful misconduct. Collins v. Brier Hill Collieries, 158 Tenn. 317, 13 S.W.2d 332, 1928 Tenn. LEXIS 155 (1929).

Death of night watchman of ice company from electric shock was not compensable where manner of contact with current was unknown but it appeared likely that he could have come into contact therewith only by climbing up transformer tower to height of 10 feet, where the duties of his employment did not require him to be, general instructions of company to employees being to avoid machinery and electrical apparatus in the plant. Home Ice Co. v. Franzini, 161 Tenn. 395, 32 S.W.2d 1032, 1930 Tenn. LEXIS 18 (1930).

It is not every disobedience of orders which constitutes willful misconduct barring compensation under this section. Kennedy v. Columbian Casualty Co., 163 Tenn. 312, 43 S.W.2d 201, 1931 Tenn. LEXIS 118 (1931); American Mut. Liability Ins. Co. v. Garth, 174 Tenn. 297, 125 S.W.2d 140, 1938 Tenn. LEXIS 92 (1939).

As the employer is entitled to protection from liability where the employee willfully refuses to observe reasonable rules and obey orders against dangerous practices, such conduct by the employee must be held to be willful misconduct within the meaning of the statute. Brown v. Birmingham Nurseries, 173 Tenn. 343, 117 S.W.2d 739, 1937 Tenn. LEXIS 31 (1938).

An employee whose legs were crushed between employer's truck and a bridge while riding on the truck in an obviously dangerous position with his legs hanging over the side of the truck in violation of orders and warnings by the employer was guilty of willful misconduct within the meaning of this section and was not entitled to compensation. Brown v. Birmingham Nurseries, 173 Tenn. 343, 117 S.W.2d 739, 1937 Tenn. LEXIS 31 (1938).

Where claimant's husband was killed by dangerous rock condition in mine after warnings by foreman to avoid working in the area, without proof that he was working there when killed after directions to get tools and go home, the trial judge could decide as a matter of fact that elements of willful misconduct do not appear and there is evidence of no such conduct. Hoodenpyle v. Patterson, 197 Tenn. 621, 277 S.W.2d 351, 1955 Tenn. LEXIS 328 (1955).

6. Failure to Use Appliances or Safety Devices.

Where a shopman failed to wear goggles furnished him as required by posted safety rule which he neglected to read, if such employee was not instructed as to the application of the rule to his task, there was not a willful failure to use the appliance. But in later case such failure barred recovery where employee knew of the rule, and the failure to use involved both intent and deliberation. Nashville, C. & S. L. R. Co. v. Wright, 147 Tenn. 619, 250 S.W. 903, 1922 Tenn. LEXIS 68 (1923); Nashville, C. & St. L. Ry. v. Coleman, 151 Tenn. 443, 269 S.W. 919, 1924 Tenn. LEXIS 77 (1924).

Where employee's failure to use appliances and his wearing a certain type of glove were at most only negligence, recovery cannot be denied on the ground that the injury was due to the employee's willful failure or refusal to use safety appliances or was intentionally self-inflicted, negligence not being the equivalent of willfulness. Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355, 1924 Tenn. LEXIS 5 (1924).

An employee cannot be excused for failure to use a safety appliance at hand, when the nature of his work demands the use of such appliance and he knows it, even though such use of such appliance has not been required by any rule of the employer. Nashville, C. & St. L. Ry. v. Coleman, 151 Tenn. 443, 269 S.W. 919, 1924 Tenn. LEXIS 77 (1924).

Willful refusal of employee to use safety appliance is not shown by fact that automatic switch on motor operating wheel, bursting of which caused the injury, which switch would cut off the current when overloaded, was tied so it could not operate, it not appearing that employee tied or knew of tying of switch or that accident occurred from cause which switch would have prevented. Kingsport Foundry & Machine Works, Inc. v. Sheffey, 156 Tenn. 150, 299 S.W. 787, 1927 Tenn. LEXIS 97 (1927).

Where an experienced lineman who was fatally injured as a result of a fall from an electric pole after touching an electric wire carrying a high voltage was not using the safety devices supplied by the company, although he had been repeatedly warned to observe the safety rules of the company and his failure to use the safety devices had been recently called to his attention, and where the evidence was to the effect his injury resulted from his failure to observe the safety rules and use the safety devices supplied him, such employee was guilty of willful misconduct within the meaning of this section so as to bar recovery. Cordell v. Kentucky-Tennessee Light & Power Co., 173 Tenn. 596, 121 S.W.2d 970, 1938 Tenn. LEXIS 46 (1938).

To establish a defense of willful failure or refusal to use a safety appliance, the employer must prove that: (1) At the time of the injury the employer had in effect a policy requiring the employee's use of a particular safety appliance; (2) The employer carried out strict, continuous and bona fide enforcement of the policy; (3) The employee had actual knowledge of the policy, including a knowledge of the danger involved in its violation, through training provided by the employer; and (4) The employee willfully and intentionally failed or refused to follow the established policy requiring use of the safety appliance. Nance v. State Indus., Inc., 33 S.W.3d 222, 2000 Tenn. LEXIS 720 (Tenn. Special Workers' Comp. App. Panel 2000), aff'd, 2000 Tenn. LEXIS 721 (Tenn. Special Workers' Comp. App. Panel Dec. 27, 2000).

7. Emergency.

An employee acting in the master's interest when an emergency arises should not be charged with willful misconduct in disobedience of orders although the thing he did was a thing forbidden when no emergency existed. Johnson v. Copeland, 178 Tenn. 431, 158 S.W.2d 986, 1941 Tenn. LEXIS 74 (1942).

Where evidence was to the effect that deceased worker met his death as a result of burns sustained when he entered the boiler room of his employer's dry cleaning plant while wearing clothes saturated with inflammable cleaning fluid to put out a fire that occurred there, such employee was acting in his employer's interest in an emergency and was not guilty of willful misconduct so as to bar recovery, even though he had been expressly forbidden to enter the boiler room while wearing such clothes. Johnson v. Copeland, 178 Tenn. 431, 158 S.W.2d 986, 1941 Tenn. LEXIS 74 (1942).

8. Intoxication.

In absence of proof of details of motor vehicle accident which occurred when employee was returning in employer's truck from servicing equipment of employer's customers, evidence that alcohol content in employee's blood was sufficient in itself to show intoxication was not sufficient to establish that intoxication was cause of accident so as to preclude recovery of benefits for death of employee arising out of accident. Gentry v. Lilly Co., 225 Tenn. 708, 476 S.W.2d 252, 1971 Tenn. LEXIS 332 (1971).

Evidence did not preponderate against trial court's finding that employee's injury was “due to intoxication.” Dobbs v. Liberty Mut. Ins. Co., 811 S.W.2d 75, 1991 Tenn. LEXIS 182 (Tenn. 1991).

9. Sufficiency of the Evidence.

In suit to recover workers' compensation death benefits with regard to employee who was killed in a vehicular collision, where a blood test showed that employee's blood contained ethyl alcohol in the amount of 0.10 percent, but where there was no direct proof that intoxication was the proximate cause of the accident, employer failed to carry its burden of proof that employee's death was brought about by his voluntary intoxication. Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858, 1976 Tenn. LEXIS 587 (Tenn. 1976).

Where there was material evidence from which the trial court might have found that the deceased's death was proximately caused by either his own intoxication or by dangerous highway conditions, the trial court's finding that death was due to intoxication will not be overturned. Overall v. Southern Subaru Star, Inc., 545 S.W.2d 1, 1976 Tenn. LEXIS 614 (Tenn. 1976).

10. Tort Law.

Although concepts of tort law such as the “rescue” doctrine applicable to negligence cases may be helpful, they are not controlling in the workers' compensation field. Hall v. Mason Dixon Lines, Inc., 743 S.W.2d 148, 1987 Tenn. LEXIS 1035 (Tenn. 1987).

Collateral References.

“Culpable negligence” or negligence other than “willful” or “serious and willful misconduct” within provision of Workers' Compensation Act precluding compensation. 149 A.L.R. 1004.

Effect of employee's intoxication. 43 A.L.R. 421.

Employee's insubordination as barring unemployment compensation. 26 A.L.R.3d 1333, 20 A.L.R.4th 637.

Injury received while doing prohibited act. 23 A.L.R. 1161.

Necessity and sufficiency of evidence that disease contracted by applicant for compensation is attributable to his employment. 20 A.L.R. 26, 73 A.L.R. 488.

Neglect or improper self-treatment as affecting right to or amount of compensation. 54 A.L.R. 637.

Recovery of compensation for injury or death to which pre-existing physical description contributes. 19 A.L.R. 106, 28 A.L.R. 204, 60 A.L.R. 1299.

Safety appliances, failure to use, as serious and willful misconduct. 4 A.L.R. 116, 9 A.L.R. 1377, 23 A.L.R. 1161, 26 A.L.R. 166, 58 A.L.R. 197, 83 A.L.R. 1211, 119 A.L.R. 1409.

Serious and willful misconduct of employee as bar to compensation. 4 A.L.R. 116.

Suicide as compensable under Workers' Compensation Law. 15 A.L.R.3d 616.

Violation of employment rule as barring claim for workers' compensation. 61 A.L.R.5th 375.

What conduct is willful, intentional, or deliberate within Workers' Compensation Act provision authorizing tort action for such conduct. 96 A.L.R.3d 1064.

NOTES TO DECISIONS

1. Validity of Section.

This section is not coercive, because it deprives the employer of some of his common law defenses, for the general assembly has the power to abolish such common law defenses. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

2. Employer Not under Statute — Rights of Employee.

The employee of one not operating under this law is entitled to damages only if his injury was proximately caused by some act or omission on the part of the employer or his agents amounting to negligence or want of reasonable care. Moore Coal Co. v. Brown, 166 Tenn. 516, 64 S.W.2d 3, 1933 Tenn. LEXIS 109 (1933); Duncan v. Dickie Rector Lumber Co., 31 Tenn. App. 155, 212 S.W.2d 908, 1948 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1948).

3. Defenses of Which Noncomplying Employer Deprived.

If an employer fails to comply with the Workers' Compensation Law, he is deprived of the common law defenses of assumption of risk and contributory negligence, and the defense that the injury was due to the negligence of a fellow servant. Moore Coal Co. v. Brown, 166 Tenn. 516, 64 S.W.2d 3, 1933 Tenn. LEXIS 109 (1933); Shoaf v. Fitzpatrick, 104 F.2d 290, 1939 U.S. App. LEXIS 4129 (6th Cir. Tenn. 1939), cert. denied, 308 U.S. 620, 60 S. Ct. 295, 84 L. Ed. 518, 1939 U.S. LEXIS 29 (Tenn. Dec. 11, 1939); Schroader v. Rural Educational Ass'n, 33 Tenn. App. 36, 228 S.W.2d 491, 1950 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1950).

Where defendant lessee of mining property was under duty to furnish props for use in mine and there was no evidence of negligence on part of codefendant who operated mine for defendant, and where defendants had not complied with Workers' Compensation Law or laws relative to mining, and employee working in mine was injured as result or failure to furnish props, judgment against defendant alone was sustained irrespective of whether codefendant was a servant or independent contractor, and even though it was contended that the injury was the result of the employee's negligence. Layne v. Campbell, 31 Tenn. App. 651, 219 S.W.2d 917, 1949 Tenn. App. LEXIS 76 (Tenn. Ct. App. 1949).

4. Facts Negativing Employer's Liability.

Although assumption of risk could not be relied upon as an affirmative defense in case involving injury of employee where employer had elected not to come under Workers' Compensation Law, the fact of superior knowledge on the part of employee of the particular circumstances existing at the time of injury and his control over the instrumentality causing injury would serve to negative the liability of employer. Duncan v. Dickie Rector Lumber Co., 31 Tenn. App. 155, 212 S.W.2d 908, 1948 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1948).

Collateral References.

Right to maintain action against fellow employee for injury or death covered by workers' compensation. 21 A.L.R.3d 845, 57 A.L.R.4th 888.

Work-connected inefficiency or negligence as “misconduct” barring unemployment compensation. 26 A.L.R.3d 1356.

Workers' compensation: law enforcement officer's recovery for injury sustained during exercise or physical recreation activities. 44 A.L.R.5th 569.

NOTES TO DECISIONS

1. Constitutionality.

Fact that suit by workers' compensation recipient against manufacturers and supplier of equipment for personal injuries sustained from explosion of equipment during course of employment was governed by limitation of this section, rather than applicable general limitation of § 28-3-104, did not constitute unlawful discrimination prohibited by Tenn. Const., art. XI, § 8 or equal protection clause of U.S. Const., amend. 14. Dobbins v. Terrazzo Machine & Supply Co., 479 S.W.2d 806, 1972 Tenn. LEXIS 401 (Tenn. 1972).

2. Purpose and Effect of 1949 Amendment.

The 1949 amendment was undoubtedly enacted for the purpose of changing the statute as it then stood by: (1) allowing the injured parties to receive from the employer the amount awarded by the statute; and (2) at the same time assert his claim against the third party as an alleged wrongdoer for the full measure of damages suffered with (3) the employer having a lien upon the recovery or settlement to the extent of the amount paid by such employer to the employee or his dependents under the provisions of the Workers' Compensation Law; and (4) if the employee or his dependents had not asserted claim against the third party within one year, then, by way of subrogation the right is given to the employer to recover from such third party damages in an amount not to exceed the amount paid or payable by that employer to its employee, or dependents. Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372, 1954 Tenn. LEXIS 458 (1954).

3. Construction and Interpretation.

This section is not a “real party in interest” statute. Kimbrell v. United States, 306 F.2d 98, 1962 U.S. App. LEXIS 4475 (6th Cir. Tenn. 1962).

Workers' compensation is the exclusive remedy except where the injury is caused by a third party. McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240, 1977 Tenn. LEXIS 535 (Tenn. 1977).

Nothing in this section may be construed to evince a legislative intent that an employer may ever be classified as a third person without doing violence to the plain language which permits common-law suits against “some person other than an employer.” McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240, 1977 Tenn. LEXIS 535 (Tenn. 1977).

The Products Liability Act, specifically T.C.A. § 29-28-103, does not in any sense repeal, revive or amend T.C.A. § 50-6-112. Hawkins v. D & J Press Co., 527 F. Supp. 386, 1981 U.S. Dist. LEXIS 16194 (E.D. Tenn. 1981).

The general assembly employed the singular form of “person” in referring to a tortious third party knowing that one or multiple suits could be filed by the employee against alleged tort-feasors. Plough, Inc. v. Premier Pneumatics, Inc., 660 S.W.2d 495, 1983 Tenn. App. LEXIS 619 (Tenn. Ct. App. 1983).

The action against third persons contemplated, and provided for, by T.C.A. § 50-6-112 is in tort and includes all types of relations creating the duty of the tort-feasor, such as automobile and general negligence cases, products liability cases, medical malpractice cases and federal tort claims act cases. Plough, Inc. v. Premier Pneumatics, Inc., 660 S.W.2d 495, 1983 Tenn. App. LEXIS 619 (Tenn. Ct. App. 1983).

T.C.A. § 50-6-112 is clear and unambiguous that for a period of one year from the date that the cause of action accrues, the employee or those to whom his right of action survives, can institute suit against allegedly liable third parties, and at the expiration of the one year, the claim of the employee is assigned to the employer. Craig v. R.R. Street & Co., 794 S.W.2d 351, 1990 Tenn. App. LEXIS 12 (Tenn. Ct. App. 1990).

“Employer” refers to any party who may be liable for workers' compensation benefits pursuant to T.C.A. § 50-6-113(a). Campbell v. Dick Broadcasting Co., 883 S.W.2d 604, 1994 Tenn. LEXIS 254 (Tenn. 1994).

The “credit on the employer's future liability” as used in T.C.A. § 50-6-112(c)(2) and (3) does not encompass future medical payments when the parties have settled the case for a lump sum award. Graves v. Cocke County, 24 S.W.3d 285, 2000 Tenn. LEXIS 369 (Tenn. 2000).

4. Suit Against Fellow Employee.

Under provisions of this section limiting action by employee for injuries to “some person other than employer” and giving right of subrogation to employer and his insurance carrier, employee could not hold fellow employee liable for injuries resulting from automobile accident which occurred while both were acting in concert within scope and course of their employment and while plaintiff was a guest passenger in automobile operated by defendant. Majors v. Moneymaker, 196 Tenn. 698, 270 S.W.2d 328, 1954 Tenn. LEXIS 441 (1954).

Co-employee causing injury to fellow employee while acting in course of employment was not a third person who might be sued under this section. Sturkie v. Bottoms, 203 Tenn. 237, 310 S.W.2d 451, 1958 Tenn. LEXIS 295 (1958).

Where injured employee sued co-employee for damages in common law action and thereafter dismissed suit after receiving $3,500 from co-employee under covenant not to sue, employer was entitled to credit for such sum received by the injured employee in workers' compensation proceedings against employer. Sturkie v. Bottoms, 203 Tenn. 237, 310 S.W.2d 451, 1958 Tenn. LEXIS 295 (1958).

A co-employee who causes injury while acting outside the course of his employment is not protected from liability in common-law actions arising out of the injury. Taylor v. Linville, 656 S.W.2d 368, 1983 Tenn. LEXIS 714 (Tenn. 1983).

Neither the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., nor the federal labor laws, nor the employee's failure to make use of the grievance procedure barred employee's tort actions against another employee. Blair v. Allied Maintenance Corp., 756 S.W.2d 267, 1988 Tenn. App. LEXIS 317 (Tenn. Ct. App. 1988).

In a case arising from a motor vehicle accident involving two co-workers, plaintiff was limited exclusively to his recovery in workers'  compensation and could not bring a common law negligence claim against his co-worker for the same incident. Williams v. Buraczynski, — S.W.3d —, 2017 Tenn. App. LEXIS 487 (Tenn. Ct. App. July 19, 2017).

5. Suit Against Co-employer.

Where plaintiff was employee of supplier of temporary manpower and was supplied to defendant who requested some temporary day labor, defendant was a co-employer with the employment agency at the time of plaintiff's injury and plaintiff was limited to a cause of action under the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., and precluded from bringing an action in negligence against defendant. Bennett v. Mid-South Terminals Corp., 660 S.W.2d 799, 1983 Tenn. App. LEXIS 627 (Tenn. Ct. App. 1983).

The definition of “employer” under the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., which includes the compensation insurance carrier, also includes the employees of the insurance carrier. Spears v. Morris & Wallace Elevator Co., 684 S.W.2d 620, 1984 Tenn. App. LEXIS 3047 (Tenn. Ct. App. 1984).

6. Compromise of Claims against Third Party.

This section, by necessary implication, authorizes the employee to settle with the third party without suit. Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372, 1954 Tenn. LEXIS 458 (1954).

Widow was empowered under § 20-5-106 to maintain suit for benefit of herself and minor child against third parties for tort causing worker's death and may compromise these claims without suit, and such compromise did not have to be postponed until after a final determination of employer's liability under Workers' Compensation Law. Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372, 1954 Tenn. LEXIS 458 (1954).

In considering legal effect of settlement with third parties by widow of workman as affects liability of employer to widow and child under Workers' Compensation Law for same accident, Workers' Compensation Law is to be construed liberally in favor of persons entitled to its benefits. Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372, 1954 Tenn. LEXIS 458 (1954).

Workers' compensation insurer who paid medical expenses to employee in excess of employer's statutory liability was entitled by subrogation to recover from third party tortfeasor the excess payments under compensation act by legal subrogation and under the policy by conventional subrogation since it had an indorsement providing for these excess payments regardless of settlement between employee and tortfeasor. United States Fidelity & Guaranty Co. v. Elam, 198 Tenn. 194, 278 S.W.2d 693, 1955 Tenn. LEXIS 363 (1955).

The Tennessee workers' compensation statute does not require the employee to obtain the ratification of the employer before making a settlement with a third-party tortfeasor, but it clearly obligates the employee to repay the employer all compensation advanced and to credit any future compensation due, up to the full amount of the proceeds of any settlement. Aetna Casualty & Surety Co. v. Gilreath, 625 S.W.2d 269, 1981 Tenn. LEXIS 510 (Tenn. 1981).

7. —Rights and Liabilities of Employer.

Where widow settles with third parties whose tort caused death of worker husband, before final determination of employer's liability under Workers' Compensation Law, employer remains liable to full extent under Workers' Compensation Law but is entitled to credit against his liability equal to amount actually collected by widow from third parties. Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372, 1954 Tenn. LEXIS 458 (1954).

The legislative intent is to reimburse an employer for payments made under a workers' compensation award for “the net recovery” obtained by the employee or those to whom his right of action survives, to the extent of the employer's total obligation under the Workers' Compensation Law. Beam v. Maryland Casualty Co., 477 S.W.2d 510, 1972 Tenn. LEXIS 391 (Tenn. 1972).

In a workers'  compensation dispute, an injured employee was not required to obtain the approval of an employer when settling a case with a third-party tortfeasor, even though the employer had a subrogated lien under T.C.A. § 50-6-112. Cooper v. Logistics Insight Corp., 395 S.W.3d 632, 2013 Tenn. LEXIS 12 (Tenn. Jan. 16, 2013).

8. Extent of Rights Created.

Under this section, the employee may sue and recover from a negligent third party and the employer who has paid or become obligated to pay compensation has a right of subrogation against the third party, but this section does not provide for a right of setoff, counterclaim, contribution or indemnity in favor of the third party. Trammell v. Appalachian Electric Co-operative, 135 F. Supp. 512, 1955 U.S. Dist. LEXIS 2610 (D. Tenn. 1955).

Where: (1) principal contractor, subcontractor and subcontractor's injured employee were all citizens of Tennessee; (2) contract of employment between employee and subcontractor was executed in Tennessee; (3) both principal contractor and subcontractor had complied with Tennessee Compensation Act; and (4) employee was injured in another state under circumstances which would have been compensable in Tennessee, Tennessee Workers' Compensation Law provided exclusive remedy in courts of Tennessee and suit against principal contractor based on common law negligence would be barred if Tennessee Workers' Compensation Law was pleaded as a defense. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

9. Suit Against Third Party.

Administrator of deceased worker could maintain suit against third party whose alleged negligence caused the death of the worker, even though there was pending an action by the widow against the employer's insurance carrier in which carrier had acknowledged liability. Trammell v. Appalachian Electric Co-operative, 135 F. Supp. 512, 1955 U.S. Dist. LEXIS 2610 (D. Tenn. 1955).

Where defendant was a cotort-feasor with employer, the fact that workers' compensation payments were received will not release defendant. Cart v. Coal Creek Mining & Mfg. Co., 153 F. Supp. 330, 1957 U.S. Dist. LEXIS 3240 (D. Tenn. 1957).

Where plaintiff, a maintenance mechanic, had suffered chronic lymphocytic leukemia, allegedly from exposure to radioactive and toxic substances and materials, and was shown by the record to be an employee of an independent contractor conducting the Oak Ridge operations of the atomic energy commission, he was not limited to remedies under Tennessee Workers' Compensation Law but could maintain common law action against United States as third party tort-feasor. Mahoney v. United States, 216 F. Supp. 523, 1962 U.S. Dist. LEXIS 6118 (E.D. Tenn. 1962).

Where widow was receiving compensation benefits under Illinois law for death of her husband, employee of tower erector, she could not recover from prime contractor on theory that the tower erector was negligent and prime contractor was his employer and liable under doctrine of respondeat superior, since under both Illinois and Tennessee law the prime contractor was not a third party. Mooney v. Stainless, Inc., 338 F.2d 127, 1964 U.S. App. LEXIS 4741 (6th Cir. Tenn. 1964), cert. denied, 381 U.S. 925, 85 S. Ct. 1561, 14 L. Ed. 2d 684, 1965 U.S. LEXIS 1173 (1965).

Where under the contract between defendant and plaintiff's immediate employer, the latter furnished men to work under the direction and control of defendant's representatives reconstructing generating station, plaintiff workman, having collected compensation from his immediate employer's insurance carrier for injuries suffered on the reconstruction project, must be treated and considered as an employee of defendant and cannot be permitted to sue his ultimate employer at common law. Clower v. Memphis Light, Gas & Water Div., 54 Tenn. App. 716, 394 S.W.2d 718, 1965 Tenn. App. LEXIS 288 (Tenn. Ct. App. 1965).

Where death of an employee was caused by the combined negligence of the employer and a third party, damages for the wrongful death of such employee will be apportioned between the employer and such third party, notwithstanding the fact that the employer had previously paid full workers' compensation to such employee's widow. Brogdon v. Southern R. Co., 253 F. Supp. 676, 1966 U.S. Dist. LEXIS 7751 (E.D. Tenn. 1966), aff'd, 384 F.2d 220, 1967 U.S. App. LEXIS 5157 (6th Cir. Tenn. 1967).

Where attorney for injured employee and compensation carrier agreed that it would not be necessary for carrier to file intervening petition in suit by employee against third party tort-feasor but that attorney would protect carrier's rights, and that with respect to portion of judgment for which carrier would be entitled to subrogation attorney would hold same for benefit of carrier, carrier was entitled to maintain separate action for interest on such portion of judgment from date of judgment after amount of subrogation claim had been paid even though carrier had not filed subrogation claim. Berke v. Reliance Ins. Co., 62 Tenn. App. 94, 459 S.W.2d 172, 1969 Tenn. App. LEXIS 274 (Tenn. Ct. App. 1969).

Where defendant is found not to be a principal contractor under § 50-6-113, he may be sued as a “third person” under this section. Womble v. J. C. Penney Co., 431 F.2d 985, 1970 U.S. App. LEXIS 7337 (6th Cir. Tenn. 1970).

Where claimant was a hospital employee who suffered injury arising out of and in the course of her employment, and subsequently was admitted to the employer hospital where her injury was aggravated by negligent treatment, she was barred from suing the hospital at common law for any injury incurred while she was a patient, since the hospital was her employer and not a third party. McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240, 1977 Tenn. LEXIS 535 (Tenn. 1977).

A workers' compensation insurance carrier and its employee cannot be classified as a “third party” and a plaintiff who has received benefits from an insurance carrier under the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., may not maintain a suit against the carrier and its employee in tort. Spears v. Morris & Wallace Elevator Co., 684 S.W.2d 620, 1984 Tenn. App. LEXIS 3047 (Tenn. Ct. App. 1984).

Where the defendant contractor had a degree of control over, and involvement in, the work performed by subcontractor not normally found in a customer-independent contractor relationship, the contractor was acting as a principal contractor in its relationship with the subcontractor, and as such, is protected from third-party liability. Manis v. Erwin Utils., 661 F. Supp. 3 (E.D. Tenn. 1986).

Defendant's status as independent contractor did not place it outside the purview of T.C.A. § 50-6-112 because it was performing a non-delegable duty of the workers' compensation carrier when it failed to pay plaintiff's claim. Davis v. Alexsis, Inc., 2 S.W.3d 228, 1999 Tenn. App. LEXIS 203 (Tenn. Ct. App. 1999), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 449 (Tenn. Sept. 13, 1999).

After the workers'  compensation claim of an employee of a real estate and auction company was settled, the employee's common law tort claims against the employer's managing broker were dismissed because T.C.A. § 50-6-108(a) limited the employee's rights and remedies to the workers'  compensation settlement, as the employee was injured in the course of the employee's employment while assisting the managing broker of the company to move cattle panels on the managing broker's personal farm. However, the employee was permitted, under T.C.A. § 50-6-112(a), to maintain common law tort claims against the managing broker's adult child, who was called to assist after the injury occurred, because the adult child was not an affiliate, officer, director, employee, agent or representative of the employer when the employee sustained injuries and the adult child did not come within the terms of the release which the employee signed. Ridenour v. Carman, — S.W.3d —, 2013 Tenn. App. LEXIS 180 (Tenn. Ct. App. Mar. 15, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 691 (Tenn. Aug. 14, 2013).

10. —Limitation of Action.

Workers' compensation recipient must bring action against nonresident third party tort-feasor in another state within one year after the injury or as a matter of law the cause of action is assigned to his employer, since the general tolling of § 28-2-111(a) in reference to nonresidents does not apply. Willis v. Weil Pump Co., 130 F. Supp. 896, 1954 U.S. Dist. LEXIS 2281 (D.N.Y. 1954), aff'd, 222 F.2d 261, 1955 U.S. App. LEXIS 3797 (2d Cir. N.Y. 1955).

The Mississippi statute of limitations and not the limitation of this section would govern an action by an injured Tennessee employee against a third party for injuries received in an accident occurring in Mississippi. Graham v. Red Ball Motor Freight, Inc., 262 F. Supp. 49, 1966 U.S. Dist. LEXIS 7485 (N.D. Miss. 1966).

The Workers' Compensation Law is for the benefit of employees primarily and for employers and their insurance carriers next and the assignment to the employer by action of law is not available to an alleged negligent third party as a defense to an action brought by the employee after one year from the date of injury. Graham v. Red Ball Motor Freight, Inc., 262 F. Supp. 49, 1966 U.S. Dist. LEXIS 7485 (N.D. Miss. 1966).

Where an involved injury provided benefits to an injured person under the Workers' Compensation Law, the action against the third-party wrongdoer was controlled by state statute providing that period of limitation ran from date of injury. Williams v. Singer Co., 457 F.2d 799, 1972 U.S. App. LEXIS 10675 (6th Cir. Tenn. 1972).

Suit by workers' compensation recipient against manufacturers and supplier of equipment for injuries sustained during the course of employment was governed by limitation of this section rather than that of § 28-3-104. Dobbins v. Terrazzo Machine & Supply Co., 479 S.W.2d 806, 1972 Tenn. LEXIS 401 (Tenn. 1972).

If the one-year limitation in this section has not expired, a products liability action under this section may be brought but is subject to the 10-year limitation of § 29-28-103. Hawkins v. D & J Press Co., 527 F. Supp. 386, 1981 U.S. Dist. LEXIS 16194 (E.D. Tenn. 1981).

Where injury, resulting in wrongful death, for which suit was brought occurred more than one year prior to the institution of the suit, suit was barred by T.C.A. § 50-6-112(d) as well as T.C.A. § 28-3-104 and there is no conflict between these provisions. Craig v. R.R. Street & Co., 794 S.W.2d 351, 1990 Tenn. App. LEXIS 12 (Tenn. Ct. App. 1990).

The general assembly intended for the employer or the workers' compensation carrier to proceed with its assigned claim within 18 months of the date the cause of action accrues. Craig v. R.R. Street & Co., 794 S.W.2d 351, 1990 Tenn. App. LEXIS 12 (Tenn. Ct. App. 1990).

Where warranty action was based on an injury compensable under the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., occurring under circumstances creating legal liability in a third party, the specific statute of limitations of T.C.A. § 50-6-112 controlled over the general statute of limitations in T.C.A. § 47-2A-506. Lambert v. Invacare Corp., 985 S.W.2d 446, 1998 Tenn. App. LEXIS 588 (Tenn. Ct. App. 1998).

Trial court erred in granting a trucking company's motion for summary judgment as it related to an employer because the rendering of an employee's complaint as void ab initio operated as an assignment of the employee's cause of action to the employer, providing the employer with six months within which to file its complaint, and the employer filed its complaint to recover worker's compensation benefits paid to the employee prior to the assignment. Duffer v. Keystops, LLC, — S.W.3d —, 2012 Tenn. App. LEXIS 530 (Tenn. Ct. App. July 31, 2012).

11. Suit against Employer by Third Party.

Where a third party is found liable for injuries to a worker, the third party may not then seek indemnity from the worker's employer even though the employer himself is liable for the injuries under the Workers' Compensation Law, although such a claim could be based on an otherwise valid expressed contract of indemnity. Rupe v. Durbin Durco, Inc., 557 S.W.2d 742, 1976 Tenn. App. LEXIS 269 (Tenn. Ct. App. 1976).

12. Effect of Recovery on Employer's Payments.

Where employee recovered against third party tort-feasor and amount of recovery was credited to the employer against his liability to the employee with the remainder of the amount due under the compensation statute to be paid in weekly installments, such installment payments should have been deferred until the sum total of the weekly credits that would have accrued from the date of the injury would have been equal to the net credit from the recovery from the third party tort-feasor. Reece v. York, 199 Tenn. 592, 288 S.W.2d 448, 1956 Tenn. LEXIS 358 (1956).

Where employee recovered against third party tort-feasor and amount of recovery credited to the employer against liability to employee with the remainder of the amount due under the compensation statute to be paid in weekly installments, contention of employee that to defer payment of weekly installments until the amount of weekly credits accrued amounted to the net credit from the tort-feasor would deprive employer of right to bring suit against tort-feasor by reason of limitation of this section was without merit. Reece v. York, 199 Tenn. 592, 288 S.W.2d 448, 1956 Tenn. LEXIS 358 (1956).

A woman may legally make a settlement with third party tort-feasor without suit or before intervention by employer in a suit where insurance carrier did not give notice to defendant tort-feasor of its claim until after settlement by worker and tort-feasor. Employers Liability Assurance Corp. v. St. Louis & S. F. R., 497 S.W.2d 249, 1972 Tenn. App. LEXIS 292 (Tenn. Ct. App. 1972).

13. Recovery under Federal Tort Claims Act.

Employee of subcontractor injured at government ordinance plant was not barred from recovery against the U.S. government under the federal Tort Claims Act (28 U.S.C. § 2671 et seq.) merely because he had received compensation under the Tennessee Workers' Compensation Law since this section expressly provides that an injured worker may take compensation under the compensation statute and also sue for recovery against a third party responsible for his injury. Pierce v. United States, 142 F. Supp. 721, 1955 U.S. Dist. LEXIS 2165 (D. Tenn. 1955), aff'd, 235 F.2d 466, 1956 U.S. App. LEXIS 3887 (6th Cir. Tenn. June 29, 1956).

This section did not preclude action of employee against United States under federal Tort Claims Act (28 U.S.C. § 2674) for damages suffered in automobile accident which with the consent of the employer was filed more than a year after the alleged tortious injury occurred. Kimbrell v. United States, 306 F.2d 98, 1962 U.S. App. LEXIS 4475 (6th Cir. Tenn. 1962).

14. Malpractice.

Where injury to worker was aggravated by improper treatment by physician, employed by employer on a fee basis, injured employee could bring action against the physician for malpractice, notwithstanding that he received compensation under the act. Garrison v. Graybeel, 202 Tenn. 567, 308 S.W.2d 375, 1957 Tenn. LEXIS 442 (1957).

The provisions of T.C.A. § 29-26-119 of the former  Medical Malpractice Review Board and Claims Act did not repeal or directly deal with the terms of T.C.A. § 50-6-112 that grant employers a subrogation lien for benefits paid or payable under the Workers' Compensation Law. Nance v. Westside Hospital, 750 S.W.2d 740, 1988 Tenn. LEXIS 52 (Tenn. 1988), rehearing denied, 750 S.W.2d 740, 1988 Tenn. LEXIS 305 (Tenn. 1988).

15. Subrogation of Employer.

An employer who provides payment of medical expenses in excess of his statutory liability under § 50-6-204 is not an intermeddler or volunteer so as to bar his insurer from subrogation for these payments against a third party tort-feasor since there is a moral obligation and it supplies good will, it is within the legislative intention, and in keeping with public policy. United States Fidelity & Guaranty Co. v. Elam, 198 Tenn. 194, 278 S.W.2d 693, 1955 Tenn. LEXIS 363 (1955).

Insurance carrier was entitled to reimbursement for total net settlement by third party for wrongful death of employee where net settlement was less than insurer's total obligation for workers' compensation benefits and trial court improperly restricted recovery to widow's portion on theory that subrogation rights did not extend to portion of decedent's surviving children who did not receive compensation benefits. Beam v. Maryland Casualty Co., 477 S.W.2d 510, 1972 Tenn. LEXIS 391 (Tenn. 1972).

This section, authorizing an employer to intervene in an action to protect and enforce its subrogation lien, does not give right to the third person, against whom suit is brought by the employee, to require the employer or its insurer to be joined as a real party in interest to the action. McCoy v. Wean United, Inc., 67 F.R.D. 491, 1973 U.S. Dist. LEXIS 10477 (D. Tenn. 1973).

T.C.A. § 50-6-112 imposes an implied duty upon the part of an employee's attorney to recognize the employer's lien, when known to him, and when no other attorney represents the employer's subrogation interest, in the event of a recovery against a third-party tortfeasor by “judgment, settlement or otherwise” and to disburse the proceeds of such recovery in accord with the rights of all parties declared therein. Aetna Casualty & Surety Co. v. Gilreath, 625 S.W.2d 269, 1981 Tenn. LEXIS 510 (Tenn. 1981).

The right of subrogation declared in this section is a right that vests in every insurance company that pays benefits to an injured worker, and attaches as a matter of statutory law, to the recovery of the injured worker against tortfeasors, “by judgment, settlement or otherwise.” Aetna Casualty & Surety Co. v. Gilreath, 625 S.W.2d 269, 1981 Tenn. LEXIS 510 (Tenn. 1981).

Nothing in T.C.A. § 50-6-112, or elsewhere in the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., allows an employee to circumvent the employer's statutory subrogation lien by entering into a settlement with a third party, even though the employer's rights to sue the third party had been preserved. Heggie v. Cumberland Electric Membership Corp., 790 S.W.2d 284, 1990 Tenn. App. LEXIS 51 (Tenn. Ct. App. 1990).

Where an injured employee who had been paid workers' compensation and subsequently recovered a judgment against a third party, the net proceeds of which exceeded the employer's subrogation claim, a pro rata portion of the cost and attorney's fees could not be charged against the subrogation claim. Breedlove v. Niagara Cold Drawn South, 813 S.W.2d 467, 1991 Tenn. App. LEXIS 161 (Tenn. Ct. App. 1991), appeal denied, State v. Gardner, 1991 Tenn. LEXIS 161 (Tenn. Apr. 15, 1991).

A workers' compensation insurance carrier was not entitled to an award against the proceeds of a settlement between a deceased workers' personal representative and the workers' uninsured motorist (UM) insurer since the UM insurer's liability was not a legal liability for the worker's death but, rather, was a liability in contract determined by the terms of the insurance agreement and, as subrogee of the worker, the workers' compensation carrier had no independent cause of action against the UM insurer. Hudson ex rel. Hudson v. Hudson Mun. Contractors, 898 S.W.2d 187, 1995 Tenn. LEXIS 188 (Tenn. 1995).

In tort action for personal injuries, employer's workers' compensation carrier is entitled to enforcement of a subrogation claim for benefits paid to an employee, where at trial, fault was attributed to the employee and the employer; T.C.A. § 50-6-112 creating the subrogation claim does not by its terms condition the claim upon the employee obtaining a full recovery of damages sustained, but rather the subrogation lien attaches to the net recovery collected and secures the amount paid by the employer or the amount of the employer's future liability, as it accrues. Castleman v. Ross Eng'g, 958 S.W.2d 720, 1997 Tenn. LEXIS 626 (Tenn. 1997).

The “credit on the employer's future liability” as used in T.C.A. § 50-6-112(c)(2) and (3) does not encompass future medical payments when the parties have settled the case for a lump sum award. Graves v. Cocke County, 24 S.W.3d 285, 2000 Tenn. LEXIS 369 (Tenn. 2000).

The “made whole doctrine,” which refers to the injured party receiving full compensation for losses as a prerequisite for allowing an insurer to exercise its subrogation rights, does not apply to workers' compensation cases. Graves v. Cocke County, 24 S.W.3d 285, 2000 Tenn. LEXIS 369 (Tenn. 2000).

In contrast to Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d 555, 2001 Tenn. LEXIS 112, the workers'  compensation statutes provide for compensating a deceased worker's spouse with death benefits; thus, the purpose of the statutory subrogation lien, i.e. to prevent a double recovery, is present when an employee's surviving spouse obtains a wrongful death recovery from a third-party tortfeasor but is absent when an employee's spouse obtains a recovery on a claim for loss of consortium. Correll v. E.I. Dupont de Nemours & Co., 207 S.W.3d 751, 2006 Tenn. LEXIS 1001 (Tenn. 2006).

Employer was entitled to a subrogation lien under T.C.A. § 50-6-112, representing amounts previously paid to the employee or on his behalf, because under the statute the employer was entitled to a subrogation lien against the employee's third-party recovery if the employer had fully or partially paid and discharged its maximum workers' compensation liability, and the employer partially paid and discharged its maximum workers' compensation liability by paying workers' compensation benefits. Hickman v. Cont'l Baking Co., 143 S.W.3d 72, 2004 Tenn. LEXIS 703 (Tenn. 2004).

Where the employee of a nursing home was injured in an automobile accident while her co-worker was driving to a training facility, the co-worker's insurer settled a claim with the employee under the liability provision of the policy. The right of subrogation did not come into play, because there was no legal liability of any party other than the employer; the co-worker could not be held liable because both employees were subject to the workers'  compensation laws. Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 2006 Tenn. LEXIS 301 (Tenn. 2006).

Employer's subrogation right under T.C.A. § 50-6-112(c) extended to the wrongful death recovery that a deceased employee's widow obtained in a products liability action filed by the employee in Georgia prior to his death; however, on remand, the trial court was to determine the portion of the recoveries attributable to the widow's loss of consortium claim to which the employer's subrogation right did not extend. Correll v. E.I. Dupont de Nemours & Co., 207 S.W.3d 751, 2006 Tenn. LEXIS 1001 (Tenn. 2006).

Need to prevent double recovery with respect to a wrongful death claim governed by Tennessee law also exists when the wrongful death recovery is obtained under Georgia law; the employer's right of subrogation under T.C.A. § 50-6-112 applies in both instances; this is consistent with the result Georgia courts have reached concerning the subrogation interest employers are afforded by Georgia's workers'  compensation statutes. Correll v. E.I. Dupont de Nemours & Co., 207 S.W.3d 751, 2006 Tenn. LEXIS 1001 (Tenn. 2006).

Judgments for the third parties in a T.C.A. § 50-6-112 suit were in error as although under the election of remedies doctrine, a widow who chose to receive workers'  compensation benefits under Iowa's workers'  compensation laws could not then seek workers'  compensation benefits for that same injury in Tennessee, the employer could rely on § 50-6-112 in seeking subrogation benefits against the third-parties, who allegedly committed a tort resulting in the decedent's death. Lacroix v. L.W. Matteson, Inc., 393 S.W.3d 687, 2012 Tenn. App. LEXIS 342 (Tenn. Ct. App. May 29, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 653 (Tenn. Sept. 19, 2012).

If an employee or his survivors elect not to receive Tennessee workers'  compensation benefits but are entitled to same, they should still, under Tennessee's statute, be allowed to take advantage of the provision in T.C.A. § 50-6-112 allowing for a third party tort claim for the same injury; and if the employee/survivors are entitled to maintain such an action, it follows that the employer can then maintain such an action between 12-18 months from the date of injury if the employee fails to file it within 12 months, as the statute expressly provides. Lacroix v. L.W. Matteson, Inc., 393 S.W.3d 687, 2012 Tenn. App. LEXIS 342 (Tenn. Ct. App. May 29, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 653 (Tenn. Sept. 19, 2012).

Trial court properly declined to include nurse case management expenses as part of an employer's workers'  compensation subrogation lien under T.C.A. § 50-6-112 where case management was discretionary under the applicable statutory and regulatory provisions, former T.C.A. § 50-6-123 (amended 2016) and Tenn. Comp. R. & Regs. 0800-2-7-.03(1) (2007), and case management services were primarily for the benefit of the employer, not the employees. Memphis Light Gas & Water Div. v. Watson, — S.W.3d —, 2019 Tenn. App. LEXIS 82 (Tenn. Ct. App. Feb. 13, 2019).

Special master incorrectly estimated workers'  compensation carrier's subrogation lien when the carrier had not fully paid and discharged the maximum liability at the time of the judgment, as the amount of the lien should have been equal to the weekly benefits and funeral benefits less the amount of future, unpaid weekly benefits. The carrier was entitled to a credit against future liability to the extent that the net recovery of the decedent's survivors exceeded the amount that the carrier previously paid in workers'  compensation benefits. Cordova ex rel. Alfredo C. v. Nashville Ready Mix, Inc., — S.W.3d —, 2020 Tenn. App. LEXIS 225 (Tenn. Ct. App. May 19, 2020).

16. Attorney's Fees.

In action arising prior to 1963 amendment to this section and § 50-6-226, which inserted provisions relating to attorney's fees, where employee's widow recovered amount in excess of compensation which employer's insurance carrier agreed to pay, attorney's fee with respect to amount subject to subrogation was to be fixed by court while, with respect to the excess, the contract between attorney and client governed the fee, and attorney's fee on amount subject to subrogation could not be recouped from excess recovery going to employee. Martin v. McMinnville, 51 Tenn. App. 503, 369 S.W.2d 902, 1962 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1962).

There is nothing in T.C.A. § 50-6-112 giving rise to a right of recovery of attorney's fees by a plaintiff from the employer in connection with collection of a judgment against a third party. Long v. General Aviation Service, Inc., 498 F. Supp. 78, 1980 U.S. Dist. LEXIS 14128 (E.D. Tenn. 1980).

Claimant's obligation to pay her former attorney a 20 percent fee had not been extinguished by law, and because this amount had explicitly been held to be reasonable by the trial court, claimant was liable to pay her former attorney the balance of $6,522 owed him for his services as her attorney in a workers' compensation case. West v. C.B. Ragland Co., 842 S.W.2d 251, 1992 Tenn. LEXIS 626 (Tenn. 1992).

Where the total recovery in a third party action was less than the workers' compensation benefits paid, in order to give effect to the statutory mandate of giving the employee's attorney a first lien on the “recovery”, the attorney for an injured workman was awarded his reasonable attorney's fees against the amount recovered from a third party. Miller v. Boswell, 844 S.W.2d 626, 1992 Tenn. App. LEXIS 524 (Tenn. Ct. App. 1992).

Where the employer's lawyer did not actively participate in the prosecution of the tort action, the employee's attorney's fee was to be charged against the entire recovery and was to reduce the employer's subrogation claim by a pro rata amount. Summers v. Command Sys., 867 S.W.2d 312, 1993 Tenn. LEXIS 414 (Tenn. 1993).

Employee was entitled to be reimbursed for the employer's proportionate share of the attorney fees from the third-party suit. Hickman v. Cont'l Baking Co., 143 S.W.3d 72, 2004 Tenn. LEXIS 703 (Tenn. 2004).

Trial court did not err in holding that the employee's attorney was entitled to an attorney's fee from the employer's subrogation lien where the attorney had performed a number of tasks on the employee's behalf, and the employer's counsel had not intervened or actively participated in the third-party tort action. Memphis Light Gas & Water Div. v. Watson, — S.W.3d —, 2019 Tenn. App. LEXIS 82 (Tenn. Ct. App. Feb. 13, 2019).

Because there was no evidence upon which to find that the workers'  compensation carrier or its counsel actively participated in the prosecution of the wrongful death action, or in effecting recovery against the other person, or were prevented from so doing—despite the carrier's contention that it withheld filing its intervening complaint in consideration and at the behest of the survivors'  counsel, the survivors'  counsel was entitled to a fee from the carrier's portion of the recovery—which was equal to the benefits it had paid. Cordova ex rel. Alfredo C. v. Nashville Ready Mix, Inc., — S.W.3d —, 2020 Tenn. App. LEXIS 225 (Tenn. Ct. App. May 19, 2020).

17. General Contractor.

Where a business enterprise undertakes to act as its own general contractor and contracts directly with subcontractors for various phases of construction on its own premises, such business enterprise is subject to the liability imposed by the workers' compensation law upon general contractors and, consequently, is entitled to the immunities conferred by the same law. Fugunt v. Tennessee Valley Authority, 545 F. Supp. 977, 1982 U.S. Dist. LEXIS 14126 (E.D. Tenn. 1982).

18. Guarantor.

The guarantor of a self-insured employer's obligations is entitled to the same immunity from suit afforded an insurer of an employer's worker's compensation obligations. Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728, 1990 Tenn. LEXIS 306 (Tenn. 1990).

There is no principled distinction between the status of a workers' compensation insurer and that of a guarantor who guarantees the employer's financial ability to comply with the workers' compensation statutes. Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728, 1990 Tenn. LEXIS 306 (Tenn. 1990).

19. Statutory Employer.

The two tests employed to determine whether an employer-employee relationship is that of a statutory employer or an independent contractor are: (1) whether the work being performed by the contractor in question is the same type of work usually performed by the company or is part of the regular business of the company; and (2) whether the company has the right to control employees of the contractor. Barber v. Purina, 825 S.W.2d 96, 1991 Tenn. App. LEXIS 605 (Tenn. Ct. App. 1991).

The provision in a contract purporting to establish that plaintiff's employer was an independent contractor was not dispositive of the issue of whether the defendant was a statutory employer. Barber v. Purina, 825 S.W.2d 96, 1991 Tenn. App. LEXIS 605 (Tenn. Ct. App. 1991).

Where defendant had control over the nature of the dimensions of the work and the order of completion of the work, and the right to terminate the contract, defendant had more control than was necessary merely to insure that the end result conformed to the plans and specifications of the contract, indicating that defendant was a statutory employer. Barber v. Purina, 825 S.W.2d 96, 1991 Tenn. App. LEXIS 605 (Tenn. Ct. App. 1991).

Trial court properly granted summary judgment to a general contractor's auto insurer on a subrogee's negligence claim because the injured employee and a co-worker, who was also the third-party tortfeasor, were employees of the subcontractor, the injured employee and the co-worker were acting in the course and scope of their employment for the subcontractor at the time of the injury, and, thus, the general contractor was the injured employee's statutory employer. T.C.A. § 50-6-113; the injured employee and the co-worker were additional insureds under the general contractor's policy. Erie Ins. Exch. v. Columbia Nat'l Ins. Co., — S.W.3d —, 2013 Tenn. App. LEXIS 60 (Tenn. Ct. App. Jan. 30, 2013), appeal denied, Erie Ins. Exch. v. Columbia Nat'l Ins. Co., — S.W.3d —, 2013 Tenn. LEXIS 673 (Tenn. Aug. 13, 2013).

20. Loss of Consortium Claim.

An employer's right to subrogation does not extend to amounts recovered by the worker's spouse for loss of consortium against a third-party tortfeasor; amounts collected by a spouse for a cause of action vested solely in that spouse are beyond the reach of the statutory subrogation lien provided for in T.C.A. § 50-6-112(c). Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d 555, 2001 Tenn. LEXIS 112 (Tenn. 2001).

When the allocation of damages between an injured worker and the injured worker's spouse is determined by settlement, a party may request approval of the settlement from the court having jurisdiction over the third party claim; the court shall review the settlement to ensure that the allocation of settlement proceeds between the worker and the worker's spouse is fair and reasonable. Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d 555, 2001 Tenn. LEXIS 112 (Tenn. 2001).

21. Future Liability Credit.

Employer was not entitled to a credit against future liability for medical expenses that were unknown or incalculable at the time of the trial of the workers' compensation case, and the trial court correctly held that the employer's credit against future liability did not apply to future medical expenses. Hickman v. Cont'l Baking Co., 143 S.W.3d 72, 2004 Tenn. LEXIS 703 (Tenn. 2004).

In a negligence case filed by a benefits claimant against a third-party tortfeasor, an employer of the benefits claimant was not entitled to a subrogation lien under T.C.A. § 50-6-112 for future medical expenses; they were not included in the employer's future liability. Cooper v. Logistics Insight Corp., 395 S.W.3d 632, 2013 Tenn. LEXIS 12 (Tenn. Jan. 16, 2013).

Collateral References.

Effect of Workers' Compensation Act on right of third person tort-feasor to recover contribution from employer of injured or killed worker. 12 A.L.R. Fed. 616, 100 A.L.R.3d 350.

Employer's right of action for loss of services or the like against third person tortiously killing or injuring employee. 4 A.L.R.4th 504.

Malpractice, right of employer or insurer who has paid award to employee to maintain action against physician for. 28 A.L.R.3d 1066.

Modern status of effect of state workers' compensation act on right of third-person tort-feasor to contribution or indemnity from employer of injured or killed workers. 100 A.L.R.3d 350.

Prejudicial effect of bringing to jury's attention fact that plaintiff in personal injury or death action is entitled to workers' compensation benefits. 69 A.L.R.4th 131.

Remedy as between subcontractor and principal contractor (or independent contractor or contractee) in respect of workers' compensation paid by one to employee injured through other's negligence, where injured employee had no remedy apart from the act. 166 A.L.R. 1221.

Right of employer or workers' compensation carrier to lien against, or reimbursement out of, uninsured or underinsured motorist proceeds payable to employee injured by third party. 33 A.L.R.5th 587.

Right of tort-feasor to mitigate opponent's damages for loss of earning capacity by showing that his compensation, notwithstanding disability, has been paid by his employer. 7 A.L.R.3d 516.

Rights and remedies where employee was injured by third person's negligence. 19 A.L.R. 766, 27 A.L.R. 493, 37 A.L.R. 838, 67 A.L.R. 249, 88 A.L.R. 665, 106 A.L.R. 1040.

Willful, wanton, or reckless conduct of coemployee as ground of liability despite bar of worker's compensation law. 57 A.L.R.4th 888.

Workers' Compensation Acts, right to subrogation under specific provisions of in relation to employees of independent contractors or subcontractors. 58 A.L.R. 892, 105 A.L.R. 580, 151 A.L.R. 1359.

Workers' Compensation Law, indemnity from manufacturer or vendor for liability under, for injury to employee by defective machine furnished employer. 37 A.L.R. 853.

NOTES TO DECISIONS

1. No Liability.

Company was not the worker's statutory employer, as there was no evidence that the company undertook work for an entity other than itself, the company did not retain the right to control the worker's conduct, and the company did not control the manner in which the worker performed his job; the fact that the company owned tarping machines and that one of its employees placed a tarp on a load was not sufficient evidence that tarping was part of the company's regular business, and the company was not liable for workers'  compensation benefits. Osborne v. Starrun, Inc., — S.W.3d —, 2018 Tenn. LEXIS 656 (Tenn. Oct. 19, 2018).

NOTES TO DECISIONS

1. Purpose and Intent.

T.C.A. § 50-6-113 creates “statutory employers” that will be liable for worker's compensation in case recovery is unavailable against the employee's immediate employer; the purpose is to protect employees from irresponsible subcontractors. The principal or general contractor will be responsible for an injured employee's worker's compensation if it has failed to hire liable, insured subcontractors; the object of the statute is to give the general contractor an incentive to require subcontractors to carry insurance. Posey v. Union Carbide Corp., 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

The intent of T.C.A. § 50-6-113 was to insure as far as possible to all workers payment of benefits when they were injured in the course of their employment. Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 1985 Tenn. LEXIS 591 (Tenn. 1985).

2. Construction.

One employed to do work according to his own methods, free from control of employer, was an independent contractor. Siskin v. Johnson, 151 Tenn. 93, 268 S.W. 630, 1924 Tenn. LEXIS 47 (1925).

Where the power to direct and supervise the work is reserved, the contractee is a servant and not an independent contractor. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924); Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

The mere fact that the laborer is receiving so much by the piece or job does not control the question as to whether the contractee was an independent contractor or a servant. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924); Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

One employed at certain price per thousand feet “to cut and haul said timber as directed by said first party,” the employer having power to direct and supervise the cutting, was a servant, obliged to do the work strictly according to instructions, and not an independent contractor. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924).

Under contract of employment whereby employer simply agreed to pay one for hauling lumber according to the amount hauled, with no relinquishment by the employer of the right to control the means and method by which the hauling was done, or to terminate the employment, the hauler was an employee within meaning of this section and not an independent contractor. Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S.W.2d 860, 1928 Tenn. LEXIS 119 (1928).

The relationship of employer and employee arises where the former selects the latter, and may discharge him and may order not only that the work shall be done but also the mode of its performance. Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

Words “to the same extent as the immediate employer” are not restrictive but merely mean that liability is imposed on the principal in the same degree as imposed upon immediate employer. Maxwell v. Beck, 169 Tenn. 315, 87 S.W.2d 564, 1935 Tenn. LEXIS 46 (1935); Adams v. Hercules Powder Co., 180 Tenn. 340, 175 S.W.2d 319, 1943 Tenn. LEXIS 21, 151 A.L.R. 1352 (1943).

Where petitioner agreed to paint a roof at rate of $50.00 per hour and at a maximum labor cost of $15.00 for himself and helper and where there was no evidence to show any relinquishment by employer of his right to control the means and methods by which the painting was to be done, there was material evidence to support the chancellor's finding that petitioner was an employee and not an independent contractor. Welch v. Reiling, 170 Tenn. 698, 99 S.W.2d 216, 1936 Tenn. LEXIS 51 (1936).

Where owner of candy company paid social security tax and carried compensation insurance on traveling salesman who was compensated on a basis of five percent of his gross sales and paid his own expenses and at times as a sideline sold goods for other companies with the consent of the candy company but did not so do in the state of Georgia where his death occurred, such salesman was an employee of the candy company and not an independent contractor and was covered by the compensation statute. Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

The provision of this section that “every claim … shall in the first instance be presented to and instituted against the immediate employer” relates to notice and service of notice and not to the suit itself. P. H. Reynolds & Co. v. McKnight, 177 Tenn. 228, 148 S.W.2d 357, 1940 Tenn. LEXIS 31 (1941).

Trucking company and driver of truck engaged in hauling stone furnished by stone company to subcontractor on government project were subcontractors within meaning of phrase “principal, or intermediate contractor or subcontractor.” McVeigh v. Brewer, 182 Tenn. 683, 189 S.W.2d 812, 1945 Tenn. LEXIS 266 (1945).

In ascertaining whether a given contract establishes an employer-employee status or that of an independent contractor, the decisive fact always is whether the party for whom the work was being done had the right of control in the doing of that work. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

Individual injured hauling logs in own truck was entitled to compensation as an employee, rather than an independent contractor, where he was hired for an indefinite time and amount of work with some control of the manner ofworking, even though he is paid by the piece, particularly where indorsement blank on salary checks states the parties are subject to fair labor standards act. Bond Bros., Inc. v. Spence, 198 Tenn. 316, 279 S.W.2d 509, 1955 Tenn. LEXIS 374 (1955).

There is no absolute formula whereby it can be determined whether a party is an employee or independent contractor but the facts of each particular case have to be taken into consideration and from these facts a determination made. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956); Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959); Smart v. Embry, 208 Tenn. 686, 348 S.W.2d 322, 1961 Tenn. LEXIS 340 (1961).

One of the most widely accepted definitions of an independent contractor is: “One who contracts to do a piece of work according to his own methods without being subject to the control of his employer, except as to the result of the work, and who has the right to employ and direct the action of the worker independent of his employer, and free from any superior authority in the employer to say how specified work shall be done, or what the laborers shall do as the work progresses; one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.” Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956); Smart v. Embry, 208 Tenn. 686, 348 S.W.2d 322, 1961 Tenn. LEXIS 340 (1961); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

In determining whether one is an employee or an independent contractor, it is the duty of the court to give the Workers' Compensation Law a liberal construction in favor of the fact that he is an employee, rather than a strict construction. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956).

Where petitioner contracted with coal company to mine coal at stated price per ton with the company to furnish certain equipment and the petitioner to furnish the labor and certain other equipment, and where petitioner paid social security, withheld income tax and paid into miner's pension fund as to his employees but the coal company reserved and exercised full control of where and how the coal was to be mined as well as the quantity of coal and the place at which it was to be delivered and petitioner could have been discharged at any time, evidence supported finding of the trial court that petitioner was an employee rather than an independent contractor. Horn v. State, 553 S.W.2d 736, 1977 Tenn. LEXIS 588 (Tenn. 1977)5.

Where ice cream vendor was furnished with pushcart and products to sell at retail with unsold products being returned to company at close of each day, and company at all times kept control of equipment and products and could seize the products and equipment at any time and terminate contract with vendor, vendor was an employee rather than an independent contractor even though his compensation was the difference between the wholesale and retail prices of the products. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

The right of a company to terminate relationship with claimant at will is strong evidence that claimant is an employee rather than an independent contractor. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959); Owens v. Turner, 211 Tenn. 121, 362 S.W.2d 793, 1962 Tenn. LEXIS 348 (1962); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Whether claimant is an employee or independent contractor depends upon the nature of business of the alleged employer, the way it is conducted and the claimant's relationship to that business. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

The method of payment for services supposed to be rendered by claimant is not controlling on question of whether he is an employee or independent contractor. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

The mere fact that employee was paid at rate of so much per thousand brick laid would not make him an independent contractor or prevent him from being an employee within the meaning of the Act. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 1960 Tenn. LEXIS 409 (1960), rehearing denied, 206 Tenn. 601, 337 S.W.2d 603, 1960 Tenn. LEXIS 424 (1960).

In determining whether an individual is an employee or an independent contractor, the test is whether employer had the right to control the employee in doing his work and not whether that right was exercised. Owens v. Turner, 211 Tenn. 121, 362 S.W.2d 793, 1962 Tenn. LEXIS 348 (1962).

Carpenter hired for purpose of repairing garage door by owner of motor company who worked by the hour and intended to submit bill when job was complete was independent contractor and not an employee of the garage owner. Federated Mut. Implement & Hardware Co. v. Shoemaker, 211 Tenn. 523, 366 S.W.2d 129, 1963 Tenn. LEXIS 377 (1963).

For determining whether worker is an employee or an independent contractor in workers' compensation cases, one test is whether employer had a right to control employee in doing the work, and another, the right to terminate the employment at any time, such rights being incompatible with full control of the work usually enjoyed by independent contractor. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Painter was employee rather than independent contractor where he was directed by farm operator to paint trim on house on a particular day and complied, employment could be terminated at any time, regular employees were directed from time to time to paint farm buildings, and painting was an expectable, routine and inherent part of the farming operation. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Factors to be considered in determining whether claimant is an employee or an independent contractor include right or exercise of control by asserted employer, method of payment, furnishing of equipment and right to fire. Fisher v. J. F. G. Coffee Co., 221 Tenn. 333, 426 S.W.2d 502, 1967 Tenn. LEXIS 360 (1967).

Where there is a contract of employment either express or implied the burden is on the employer to show that the claimant is an independent contractor rather than an employee. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

Plaintiff who was engaged to clean bricks on new buildings by the job or by number of bricks, who was not controlled as to means of accomplishment of end result, furnished major portion of tools and materials and frequently hired and paid his own employees, although on occasion he received help from contractor's employees without charge, was, on the facts of the case, an independent contractor rather than an employee, even though plaintiff and building contractor may have engaged in some occasional consultation and experimentation with reference to cleaning solution to be used. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969).

Among the tests for determining whether a work relationship is that of employer-employee or of independent contractor are: (1) Right to control conduct of work; (2) Right of termination; (3) Method of payment between alleged employer and employee; (4) Whether or not alleged employee furnishes his own helpers; and (5) whether or not the alleged employee furnishes his own tools, but these tests are not absolute and are not to be applied abstractly. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969); Carver v. Sparta Electric System, 690 S.W.2d 218, 1985 Tenn. LEXIS 499 (Tenn. 1985); Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 1985 Tenn. LEXIS 591 (Tenn. 1985).

So-called “relative nature of the work” test is of vital significance on the issue of whether an individual is an employee or casual employee but is of less significance where the question is whether the injured person is an employee or independent contractor. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969).

Where only practical difference between truck drivers delivering manufacturer's products as employees and as “contract haulers” was that contract haulers stood to make more money and both types of drivers worked same hours, performed same duties and contracts of contract haulers could be terminated at any time, action of trial judge in finding that “contract hauler” was employee would be sustained. Curtis v. Hamilton Block Co., 225 Tenn. 275, 466 S.W.2d 220, 1971 Tenn. LEXIS 300 (1971).

Where worker had leased a tractor from corporation to be used by worker in delivering gasoline and petroleum products for corporation, and where the lease agreement had provided that the leased equipment would be operated by the corporation's exclusive direction and control and that corporation would have the right to terminate the services of any driver, the worker was an employee of the corporation rather than an independent contractor for workers' compensation purposes. Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858, 1976 Tenn. LEXIS 587 (Tenn. 1976).

Where defendant held a franchise to operate a taxicab company, and where a taxicab driver was seriously injured while answering one of defendant's radio dispatches, the fact that the name of the company and other business information was painted on the vehicles, that all of the cabs were radio dispatched, that gasoline purchases were made by the drivers from defendant, that defendant supplied oil for each vehicle, and that defendant's supervisors checked cabs for cleanliness, constituted sufficient evidence of an employer-employee relationship rather than of independent contractors, and defendant was required to compensate plaintiff under § 50-6-112. Nesbit v. Powell, 558 S.W.2d 436, 1977 Tenn. LEXIS 659 (Tenn. 1977).

Where man and his wife worked on painting and papering homes for mortgage company and painting was sometimes paid for by the hour and sometimes on square foot basis and papering was paid for by the roll, and he could set his own working hours, provide his own tools and hire additional helpers if he wished, he was an independent contractor and not an employee. Barnes v. National Mortg. Co., 581 S.W.2d 957, 1979 Tenn. LEXIS 442 (Tenn. 1979).

Where: (1) Injured person was a member of a partnership and was working on the construction of a house for a general contractor; (2) The general contractor inspected the work to the extent necessary to see that the end result would be according to plan but did not control the methods and details of the work; (3) Payment was negotiated on the square foot of completion basis; and (4) Such injured person hired and paid his own helpers and did not use the workers of the general contractor, such injured person was an independent contractor rather than an employee of the general contractor. Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923, 1980 Tenn. LEXIS 472 (Tenn. 1980).

Where defendant supplied all his own tools and workers, and plaintiff had no right to termination and did not deduct social security or income taxes from defendant's paychecks, defendant was an independent contractor. Jackson Sawmill, Inc. v. West, 619 S.W.2d 105, 1981 Tenn. LEXIS 453 (Tenn. 1981).

The remedies in this section are controlling and exclude all other rights and remedies. Powell v. Aesco Steel, Inc., 694 S.W.2d 309, 1984 Tenn. App. LEXIS 3337 (Tenn. Ct. App. 1984) (common law action for personal injuries barred).

The fact that a company did not deduct social security or income taxes was not controlling in deciding whether an employer-employee or independent contractor relationship existed. Carver v. Sparta Electric System, 690 S.W.2d 218, 1985 Tenn. LEXIS 499 (Tenn. 1985).

The following are to be considered as means of analysis, not as absolutes, in the determination of an independent contractor or employee relationship: (1) The right to control the conduct of the work; (2) The right of termination; (3) The method of payment; (4) The freedom to select and hire helpers; (5) The furnishing of tools and equipment; (6) Self scheduling of work hours; and (7) Being free to render services to other entities. German v. Whaley, 760 S.W.2d 627, 1988 Tenn. LEXIS 201 (Tenn. 1988).

The method of payment, the freedom to select and hire helpers, the furnishing of tools and equipment, and the freedom to render services to other entities unequivocally established defendant as an independent contractor, and evidence on issues of termination and control did not persuasively indicate an employer-employee relationship. German v. Whaley, 760 S.W.2d 627, 1988 Tenn. LEXIS 201 (Tenn. 1988); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

A party to a contract can exercise direction and control over the results of the work without destroying the independence of the contract or creating an employer-employee relationship. Wright v. Knox Vinyl & Aluminum Co., 779 S.W.2d 371, 1989 Tenn. LEXIS 465 (Tenn. 1989).

While no single factor is determinative, the supreme court has repeatedly emphasized the importance of the right to control when distinguishing employees and independent contractors, the relevant inquiry being whether the right existed, not whether it was exercised. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Method of payment does weigh toward finding an independent contractor relationship, but it is one factor among many to be considered. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Where truck leasing company required driver to sign contract emphasizing driver's status as “independent contractor” rather than “employee,” but could effectively terminate its relationship with driver at will, retained the responsibility for selecting the routes to be driven, required driver to take the most commercially reasonable route and offset any equipment operating costs due to a deviation in route against driver's earnings, penalized driver if he failed to meet pickup or delivery times, required driver to report daily, and required driver to obtain company approval before taking time off from work, evidence supported chancellor's findings that relationship was that of employer-employee. Boruff v. CNA Ins. Co., 795 S.W.2d 125, 1990 Tenn. LEXIS 277 (Tenn. 1990).

Independent contractor status did not place the defendant outside the purview of T.C.A. § 50-6-102 as the defendant was performing a non-delegable duty of the workers' compensation carrier when it failed to pay plaintiff's claim. Davis v. Alexsis, Inc., 2 S.W.3d 228, 1999 Tenn. App. LEXIS 203 (Tenn. Ct. App. 1999), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 449 (Tenn. Sept. 13, 1999).

3. —Principal Contractor.

Generally, an owner is not considered a principal contractor. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

A firm that undertakes work for an entity other than itself may be a principal contractor for purposes of T.C.A. § 50-6-113, regardless of whether it is the owner. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

If the work is not undertaken for another, an owner may be a principal contractor if he undertakes direct supervisory control of the work of another contractor's employee. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

An owner who acts as the general contractor on his own project and does not immediately control the work of the subcontractor's employees is a principal contractor under T.C.A. § 50-6-113. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

Where a business enterprise undertakes to act as its own general contractor and contracts directly with subcontractors for various phases of construction on its own premises, such business enterprise is subject to the liability imposed by the worker's compensation law upon general contractors and, consequently, is entitled to the immunities conferred by the same law. Fugunt v. Tennessee Valley Authority, 545 F. Supp. 977, 1982 U.S. Dist. LEXIS 14126 (E.D. Tenn. 1982).

Telephone company was deemed a principal contractor. Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 1985 Tenn. LEXIS 591 (Tenn. 1985).

To determine whether an owner is acting as its own principal contractor, the following factors are considered: (1) Right to control the conduct of work; (2) Right of termination; (3) Method of payment; (4) Whether alleged employee furnished his own helpers; (5) Whether alleged employee furnishes his own tools; and (6) Whether one is doing “work for another”. Mathis v. Bowater, Inc., 985 F.2d 277, 1993 U.S. App. LEXIS 1895 (6th Cir. Tenn. 1993).

Owner of development property was a principal contractor at the time of claimant's injury. Brown v. Canterbury Corp., 844 S.W.2d 134, 1992 Tenn. LEXIS 609 (Tenn. 1992).

A company or other business is considered a principal contractor if the work being performed by a subcontractor's employee is part of the regular business of the company or is the same type of work usually performed by the company's employee. Murray v. Goodyear Tire & Rubber Co., 46 S.W.3d 171, 2001 Tenn. LEXIS 418 (Tenn. 2001).

Even if a company contracts out work other than the type of work usually performed by its employees, that company may nevertheless be considered a principal contractor based on the right of control over the conduct of the work and over the employees of the subcontractor. Murray v. Goodyear Tire & Rubber Co., 46 S.W.3d 171, 2001 Tenn. LEXIS 418 (Tenn. 2001).

4. Application.

This statute applies only in cases where injury occurred on, or about the premises on which the principal contractor has undertaken to execute work, or which are otherwise under his control or management. Siskin v. Johnson, 151 Tenn. 93, 268 S.W. 630, 1924 Tenn. LEXIS 47 (1925).

For this section to be applicable, there must be: (1) A relationship between the injured employee and the principal, or intermediate contractors, or subcontractors; and (2) An injury occurring “on, in or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management.” International Harvester Co. v. Sartain, 32 Tenn. App. 425, 222 S.W.2d 854, 1948 Tenn. App. LEXIS 129 (Tenn. Ct. App. 1948).

This section has no application to third parties but is limited to principal or intermediate contractor or subcontractor. Pierce v. United States, 142 F. Supp. 721, 1955 U.S. Dist. LEXIS 2165 (D. Tenn. 1955), aff'd, 235 F.2d 466, 1956 U.S. App. LEXIS 3887 (6th Cir. Tenn. June 29, 1956); Cradic v. Eastman Kodak Co., 202 F. Supp. 590, 1962 U.S. Dist. LEXIS 4760 (E.D. Tenn. 1962).

The injured employee need not be an employee of the principal contractor in order to subject such principal to liability if he is an employee of any subcontractor on the project. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 1960 Tenn. LEXIS 409 (1960), rehearing denied, 206 Tenn. 601, 337 S.W.2d 603, 1960 Tenn. LEXIS 424 (1960).

The term principal contractor does not generally include a corporation which has hired independent contractors to perform specialized work in construction of an addition to the corporation's plant. Chappell v. Olin-Mathieson Chemical Corp., 305 F. Supp. 544, 1969 U.S. Dist. LEXIS 10053 (E.D. Tenn. 1969).

Where painter contracted with textile dyeing company to paint smoke stack of plant for specified amount with painter to use his own equipment except paint and to have complete control of job and record did not indicate that dyeing company engaged in such maintenance operations itself, dyeing company was not a principal contractor under this section so as to be liable for compensation to employee of painter who was injured while painting smoke stack. Hendrix v. Ray-Ser Dyeing Co., 224 Tenn. 690, 462 S.W.2d 483, 1970 Tenn. LEXIS 394 (1970).

This section did not make principal contractor of project in New Mexico liable under the Tennessee Workers' Compensation Law to employee of subcontractor who hired employee in Tennessee for work on New Mexico project where principal contractor was a nonresident of Tennessee, although it did business in Tennessee. Smith v. Rockwell International Corp., 581 S.W.2d 954, 1979 Tenn. LEXIS 441 (Tenn. 1979).

T.C.A. § 50-6-113 extends the duties and immunities of an employer to entities other than an employee's immediate employer. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

Although there are cases preceding the 1976 amendment to T.C.A. § 50-6-106(1) holding T.C.A. § 50-6-113, the principal contractor liability provision, applicable to the contract trucking situation, the 1976 amendment, removing common carriers from consideration as the statutory employer of an owner-operator or leased-operator, makes these cases and the principal contractor liability theory inapplicable to such situations. Long v. Stateline Systems, Inc., 738 S.W.2d 622, 1985 Tenn. LEXIS 542 (Tenn. 1985).

The five-employee limitation for workers' compensation liability was not applicable to principal contractor liable because subcontractor failed to secure workers' compensation insurance. Brown v. Canterbury Corp., 844 S.W.2d 134, 1992 Tenn. LEXIS 609 (Tenn. 1992).

In a personal injury case in which a worker sued a company and the company moved for summary judgment, arguing that the worker's suit was precluded by the principal contractor and exclusivity provisions of Tennessee's Workers'  Compensation Law, the worker unsuccessfully argued that his employer, not the company, retained the complete authority to control his work and that the company could not be his statutory employer. Bray v. TVA, 742 F. Supp. 2d 911, 2010 U.S. Dist. LEXIS 110222 (W.D. Tenn. Sept. 24, 2010).

5. Employees Not Entitled to Invoke Section.

The statute cannot be invoked by an employee of one who is neither “principal nor intermediate contractor.” Odom v. Sanford & Treadway, 156 Tenn. 202, 299 S.W. 1045, 1927 Tenn. LEXIS 104 (1927).

6. Employees of Independent Contractors.

Under this section, principal contractors are made liable for injuries sustained by employees of subcontractors arising out of and in the course of their employment, whether such subcontractors are independent contractors or otherwise, provided that, at the time of the injury, the employee was engaged upon the subject matter of the general contract, and the injury occurs on, in or about premises under the control or management of the principal contractor. Williams v. Buchanan, 149 Tenn. 639, 261 S.W. 660, 1923 Tenn. LEXIS 120 (1924).

Where one contracting to build a state highway contracted with an independent subcontractor to quarry stone in a state quarry, which had been turned over to him, retaining no control of the manner of quarrying, except to supply a fireman, for compensation, to operate a state drill when necessary, an employee of the subcontractor can recover from the principal contractor compensation for injury. Williams v. Buchanan, 149 Tenn. 639, 261 S.W. 660, 1923 Tenn. LEXIS 120 (1924).

Defendants who engaged an independent contractor to unload car wheels, and who had not contracted to do such work for another, were not “principal contractors,” within this section, making the principal contractors liable for compensation to their subcontractor's employees, and were not liable to independent contractor's employee. Siskin v. Johnson, 151 Tenn. 93, 268 S.W. 630, 1924 Tenn. LEXIS 47 (1925).

Under this section, the general or principal contractor is liable for compensation for an injury, occurring under the conditions stated, to any employee of his subcontractor even though the latter was an independent contractor. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 1960 Tenn. LEXIS 409 (1960), rehearing denied, 206 Tenn. 601, 337 S.W.2d 603, 1960 Tenn. LEXIS 424 (1960).

Where plaintiff, a maintenance mechanic, had suffered chronic lymphocytic leukemia, allegedly from exposure to radioactive and toxic substances and materials, and was shown by the record to be an employee of an independent contractor conducting the Oak Ridge operations of the atomic energy commission, he was not limited to remedies under Tennessee Workers' Compensation Law but could maintain common law action against United States as third party tort-feasor. Mahoney v. United States, 216 F. Supp. 523, 1962 U.S. Dist. LEXIS 6118 (E.D. Tenn. 1962).

7. Employees of Servants.

A, employed to cut and haul timber under the directions and supervision of his employer, being an employee and not an independent contractor, his employer was liable for death in course of employment of an employee hired and paid by A. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924).

8. Liability of Principal Contractor.

Contractor who employed five persons was liable for compensation to injured employee of subcontractor who employed only four persons. Maxwell v. Beck, 169 Tenn. 315, 87 S.W.2d 564, 1935 Tenn. LEXIS 46 (1935).

Partnership was liable as principal contractor for injuries to servant of a subcontractor of the partnership, and it was wholly immaterial that the partnership was contracting for work to be done for and on behalf of a member of the partnership. Wood v. Dean, 194 Tenn. 663, 254 S.W.2d 751, 1953 Tenn. LEXIS 287 (1953).

Builder who was engaged in construction of a number of houses for others, including the one in which employee of subcontractor was injured, was a “principal contractor” within the meaning of this section even though title to lot on which the house was being constructed was held in name of himself and his wife. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 1960 Tenn. LEXIS 409 (1960), rehearing denied, 206 Tenn. 601, 337 S.W.2d 603, 1960 Tenn. LEXIS 424 (1960).

Under this section, the principal contractors are made liable for injuries sustained by employees of subcontractors arising out of and in the course of their employment, whether such subcontractors are independent contractors or otherwise, provided at the time of the injury the employee was engaged upon the subject-matter of the general contract and the injury occurs on, in or about the premises under the management of the principal contractor. Bowling v. Whitley, 208 Tenn. 657, 348 S.W.2d 310, 1961 Tenn. LEXIS 337 (1961).

General contractor was liable under the statute for injuries suffered by employee of subcontractor in course of employment where subcontractor did not have five employees and was not subject to statute. Bowling v. Whitley, 208 Tenn. 657, 348 S.W.2d 310, 1961 Tenn. LEXIS 337 (1961).

Where defendant store employed plaintiff's firm to do certain jobs defendant, as owner of the premises, was not a principal contractor. Womble v. J. C. Penney Co., 431 F.2d 985, 1970 U.S. App. LEXIS 7337 (6th Cir. Tenn. 1970).

The principal contractor is liable for compensation for an injury to any employee of his subcontractor where the injury occurred on or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

Those provisions of the act making the principal contractor liable for injuries to a subcontractor's employee to the same extent as the immediate employer places primary liability on the principal contractor along with the subcontractor, and therefore the principal contractor is not a “third party” liable to a common law action by an employee of the subcontractor. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

Where (1) principal contractor, subcontractor and subcontractor's injured employee were all citizens of Tennessee, (2) contract of employment between employee and subcontractor was executed in Tennessee, (3) both principal contractor and subcontractor had complied with Tennessee Workers' Compensation Law and (4) employee was injured in another state under circumstances which would have been compensable in Tennessee, Tennessee Workers' Compensation Law provided exclusive remedy in courts of Tennessee, and suit against principal contractor based on common law negligence would be barred if Tennessee Workers' Compensation Law was pleaded as a defense. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

Where a business enterprise undertakes to act as its own general contractor and contracts directly with subcontractors for various phases of construction on its own premises, such business enterprise is subject to the liability imposed by this section on general contractors and consequently is entitled to the same immunities. Carpenter v. Hooker Chemical & Plastics Corp., 553 S.W.2d 356, 1977 Tenn. App. LEXIS 286 (Tenn. Ct. App. 1977).

Where a business enterprise undertakes to act as its own general contractor and contracts directly with subcontractors for various phases of construction on its own premises, the enterprise is subject to the liability imposed by the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., upon general contractors and consequently is entitled to the immunities conferred by the same law. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

Taking together T.C.A. §§ 50-6-108 and 50-6-113, tort recovery is barred against a principal contractor. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

Inasmuch as the prime contractor is liable, under T.C.A. § 50-6-113, to the same extent as the immediate employer, it is isolated from any common law claim brought by an employee of its subcontractor if that employee received workers' compensation through the subcontractor. Manning v. Rentenbach Engineering Co., 625 S.W.2d 718, 1981 Tenn. App. LEXIS 506 (Tenn. Ct. App. 1981).

Having undertaken to be its own principal contractor, corporation was liable for payment of worker's compensation benefits to subcontractor's direct employee, since worker's compensation coverage was not provided by the subcontractor. Acklie v. Carrier, 785 S.W.2d 355, 1990 Tenn. LEXIS 69 (Tenn. 1990).

T.C.A. § 50-6-113(a) requires that a principal contractor be held liable for the uninsured work-related injuries of its subcontractor's employees, even though it is not required to provide workers' compensation coverage for its own employees. Brown v. Canterbury Corp., 844 S.W.2d 134, 1992 Tenn. LEXIS 609 (Tenn. 1992).

9. —Tort Immunity.

Principal contractor liable under T.C.A. § 50-6-113 is immune to tort actions of injured employee to the same extent as the subcontractor. Mathis v. Bowater, Inc., 985 F.2d 277, 1993 U.S. App. LEXIS 1895 (6th Cir. Tenn. 1993).

Owner of project site was acting as a principal contractor, and was therefore immune to tort liability. Mathis v. Bowater, Inc., 985 F.2d 277, 1993 U.S. App. LEXIS 1895 (6th Cir. Tenn. 1993).

Employee, Tennessee resident who was injured in Texas, could not pursue common law tort claims against a general contractor or a co-worker as Tennessee workers'  compensation benefits had been awarded under T.C.A. § 50-6-115; exclusivity provision barred the claims under T.C.A. § 50-6-108 because the employer as a subcontractor had provided workers'  compensation insurance under T.C.A. § 50-6-113. Scott v. AMEC Kamtech, Inc., 583 F. Supp. 2d 912, 2008 U.S. Dist. LEXIS 73662 (E.D. Tenn. Sept. 24, 2008).

In a personal injury case in which a worker, who had been employed by a subcontractor to a general contractor, appealed a district court's entry of summary judgment in favor of the general contractor, under T.C.A. § 50-6-108(a), the Tennessee Workers'  Compensation Act provided the worker with his exclusive remedy, the general contractor was immune under T.C.A. § 50-6-113 to the same extent as the worker's employer, and T.C.A. § 50-6-115 and was relevant to the case. Scott v. AMEC Kamtech, Inc., 412 Fed. Appx. 818, — F.3d —, 2011 U.S. App. LEXIS 3758, 2011 FED App. 111N (6th Cir.).

10. —Election of Coverage.

The filing requirement of T.C.A. § 50-6-113(c) is merely directory, and an election may be accomplished by substantial compliance with the workers' compensation statute. Presley v. Bennett, 860 S.W.2d 857, 1993 Tenn. LEXIS 295 (Tenn. 1993).

Where contractor and subcontractor agreed to be bound by the workers' compensation law, and premiums were deducted from subcontractor's compensation for that purpose, the parties substantially complied with the statutory election provision, despite their failure to file with the department of labor. Presley v. Bennett, 860 S.W.2d 857, 1993 Tenn. LEXIS 295 (Tenn. 1993).

11. Premises on Which Principal Contractor Has Undertaken to Work.

Where truck driver suffered fatal accident on public highway while operating truck leased by motor line from independent contractor and motor line was principal contractor having use and control of highways to extent necessary for performance of hauling contract with tobacco company, death of driver was compensable under Workers' Compensation Law requiring that injury occur on or about “premises” on which principal contractor has undertaken to work. Davis v. J & B Motor Lines, 193 Tenn. 233, 245 S.W.2d 769, 1951 Tenn. LEXIS 351 (1951).

Partnership engaged in real estate development was principal contractor and liable for compensation to employee of independent contractor hired by partnership to grade property held in name of individual partner where employee was injured across the street from the property of partnership as he was removing bulldozer from tractor-trailer preparatory to grading. Wood v. Dean, 194 Tenn. 663, 254 S.W.2d 751, 1953 Tenn. LEXIS 287 (1953).

Truck driver who operated truck leased to another transport company who had made delivery and then executed lease to second trucking company rather than return to home base empty, and was injured was entitled to benefits from owner as well as second leasing company, because deviation benefited both employers. Herron v. Fletcher, 503 S.W.2d 84, 1973 Tenn. LEXIS 428 (Tenn. 1973).

Trucking lessees are treated as prime contractors and subcontractors and the duty and obligation flows to the benefit of the injured employee from both contractor and subcontractor. Herron v. Fletcher, 503 S.W.2d 84, 1973 Tenn. LEXIS 428 (Tenn. 1973).

12. Recovery by Principal Contractor against Subcontractor.

Where the general contractor on a construction project sublet the steel work to one subcontractor and the brick work to another subcontractor and a worker of the steel subcontractor was injured by a brick falling on him for which he properly recovered compensation from the general contractor, the general contractor could bring suit against the brick subcontractor to recover the amount he had paid the worker. Vandergriff v. Willett, 24 Tenn. App. 29, 137 S.W.2d 957, 1939 Tenn. App. LEXIS 7 (Tenn. Ct. App. 1939).

Declaration alleging that general contractor's insurance carrier paid contractor's employee worker's compensation benefits but that employee was actually loaned to subcontractor at the time of injury and that contractor's carrier was entitled to recover compensation payments from subcontractor's carrier stated cause of action for indemnity or contribution and statute of limitation provided by § 28-3-108 governed rather than one year period provided by § 50-6-203. Travelers Ins. Co. v. Fidelity & Casualty Co., 219 Tenn. 244, 409 S.W.2d 175, 1966 Tenn. LEXIS 522 (1966).

The principal contractor has the statutory right to proceed in its own name for indemnification against the party primarily liable for compensation, having paid an obligation for which it was secondarily liable as a “statutory employer” under the statute. Tolley v. General Acci., Fire & Life Ins. Corp., 584 S.W.2d 647, 1979 Tenn. LEXIS 462 (Tenn. 1979).

13. Suit at Common Law.

Under this section the primary contractor and intermediate contractors are primarily liable to injured employees of the subcontractor and for that reason cannot be held to be “third parties” so as to be liable to suit at common law for injuries to such employees. Adams v. Hercules Powder Co., 180 Tenn. 340, 175 S.W.2d 319, 1943 Tenn. LEXIS 21, 151 A.L.R. 1352 (1943).

Employee of a principal contractor could sue a subcontractor at common law for injuries received while working on the premises covered by the principal contract as a result of negligence of employee of subcontractor. Olsen v. Sharpe, 191 Tenn. 503, 235 S.W.2d 11, 1950 Tenn. LEXIS 464 (1950).

Ownership of lot by builder of house and his wife did not exempt such builder from liability under this section as a principal contractor, and such builder was not subject to personal injury action by employee of subcontractor for injuries received in the course of employment. Billings v. Dugger, 50 Tenn. App. 403, 362 S.W.2d 49, 1962 Tenn. App. LEXIS 155 (Tenn. Ct. App. 1962).

Where under the contract between defendant and plaintiff's immediate employer the latter furnished men to work under the direction and control of defendant's representatives reconstructing generating station, plaintiff worker, having collected compensation from his immediate employer's insurance carrier for injuries suffered on the reconstruction project, must be treated and considered as an employee of defendant and cannot be permitted to sue his ultimate employer at common law. Clower v. Memphis Light, Gas & Water Div., 54 Tenn. App. 716, 394 S.W.2d 718, 1965 Tenn. App. LEXIS 288 (Tenn. Ct. App. 1965).

Employee of subcontractor of contractor with whom city had contracted to extend city's electrical distribution system who had received workers' compensation for injury on the job was not barred from suing city for alleged negligence where city was not liable for workers' compensation. Jones v. Dyersburg, 59 Tenn. App. 354, 440 S.W.2d 809, 1967 Tenn. App. LEXIS 261 (Tenn. Ct. App. 1967).

14. Joinder of Contractor and Subcontractor.

Under the provisions of this section and § 20-1-108, an injured employee of a subcontractor may join his immediate employer and the principal contractor in the same suit. P. H. Reynolds & Co. v. McKnight, 177 Tenn. 228, 148 S.W.2d 357, 1940 Tenn. LEXIS 31 (1941).

Where employee of second subcontractor was injured, the primary liability would rest upon the immediate employer, but under the provisions of this section both subcontractors and the primary contractor may be jointly and severally liable and where, as in this case, the subcontractor employing the worker was not subject to the workers' compensation law because not having five employees, and the judgment was rendered jointly and severally against the primary contractor and the first subcontractor, and such first subcontractor paid the judgment he could not recover from the general contractor for contribution, although if the general contractor had paid the judgment he could have recovered against the subcontractor for contribution. Tayloe Paper Co. v. W. F. Jameson Constr. Co., 211 Tenn. 232, 364 S.W.2d 882, 1963 Tenn. LEXIS 345 (1963).

15. Recovery from Contractor Bars Recovery from Subcontractor.

Where plaintiff operator of wobble-wheel equipment was employed by Cooper, who leased equipment and operator to defendant, and plaintiff was injured while performing work at the direction and under the control of defendant, plaintiff was loaned employee of defendant and defendant became liable to plaintiff for compensation benefits if plaintiff was injured, plaintiff being limited under workers' compensation law to one recovery for injury, either from defendant or Cooper, thus where plaintiff had already recovered compensation from Cooper he could not under common law action for damages recover from defendant. Cradic v. Eastman Kodak Co., 202 F. Supp. 590, 1962 U.S. Dist. LEXIS 4760 (E.D. Tenn. 1962).

16. Recovery from Subcontractor Bars Recovery from Contractor.

Where an employee of a subcontractor recovered all the workers' compensation benefits to which he was entitled from the insurer of his employer, the exclusive remedy provision of T.C.A. § 50-6-108 barred an action in tort for personal injuries brought by the employee against the contractor. Campbell v. Dick Broadcasting Co., 883 S.W.2d 604, 1994 Tenn. LEXIS 254 (Tenn. 1994).

17. Liability of Parties.

Question of who was primarily liable to employee of general contractor loaned to subcontractor at time of injury was question of fact dependent on whose work the employee was engaged in at time of injury. Travelers Ins. Co. v. Fidelity & Casualty Co., 219 Tenn. 244, 409 S.W.2d 175, 1966 Tenn. LEXIS 522 (1966).

The Workers' Compensation Law does not determine, as between contractors and subcontractors, who is primarily liable, as that determination must be made on equitable principles. Travelers Ins. Co. v. Fidelity & Casualty Co., 219 Tenn. 244, 409 S.W.2d 175, 1966 Tenn. LEXIS 522 (1966).

Where owner of a fleet of trucks leased them to a trucking company for shipments from Tennessee to other parts of the country, the duty and obligations flow to the benefit of an injured employee from both the owner and the lessee as prime contractor and subcontractor respectively. Herron v. Fletcher, 503 S.W.2d 84, 1973 Tenn. LEXIS 428 (Tenn. 1973).

Although the father supervised the construction of his daughter's residence and therefore qualified under T.C.A. § 50-6-113 as “a person engaged in the construction industry,” who was required to carry workers' compensation insurance, the father fell within the ownership exemption provided in former § 50-6-113(f)(1) because he was acting as his daughter's uncompensated agent and thus was not subject to liability for the injuries sustained by an employee of a subcontractor working on the construction. Bostic v. Dalton, 158 S.W.3d 347, 2005 Tenn. LEXIS 1 (Tenn. 2005).

Employer was not entitled to assert the comparative fault of the general contractor or subcontractor as to the employee's injuries but was entitled to argue that the contractor and subcontractor were the sole cause in fact of the employee's injuries; the trial court's jury instruction properly instructed the jury on the employer's cause-in-fact defense. Troup v. Fischer Steel Corp., 236 S.W.3d 143, 2007 Tenn. LEXIS 742 (Tenn. Aug. 31, 2007).

Insured was liable to insurers for workers'  compensation premiums for physical therapists with whom the insured contracted under a risk of loss provision in the parties'  insurance contract because: (1) the clause did not only apply when T.C.A. § 50-6-113 might apply; and (2) the insurers had to defend any suit in which a therapist sought workers'  compensation from the insured, even if only to find the therapist's status as an employee or independent contractor, so the insured was liable for premiums for shifting this litigation risk to the insurers. Cont'l Cas. Co. v. Theraco, Inc., 437 S.W.3d 841, 2014 Tenn. App. LEXIS 16 (Tenn. Ct. App. Jan. 14, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 451 (Tenn. May 28, 2014).

18. Statutory Employer.

Under contract of employment whereby employer simply agreed to pay one for hauling lumber according to the amount hauled, with no relinquishment by the employer of the right to control the means and method by which the hauling was done, or to terminate the employment, the hauler was an employee within meaning of this section and not an independent contractor. Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S.W.2d 860, 1928 Tenn. LEXIS 119 (1928).

The relationship of employer and employee arises where the former selects the latter, and may discharge him and may order not only that the work shall be done but also the mode of its performance. Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

Where defendant had control over the nature of the dimensions of the work and the order of completion of the work, and the right to terminate the contract, defendant had more control than was necessary merely to insure that the end result conformed to the plans and specifications of the contract, indicating that defendant was a statutory employer. Barber v. Purina, 825 S.W.2d 96, 1991 Tenn. App. LEXIS 605 (Tenn. Ct. App. 1991).

The two tests employed to determine whether an employer-employee relationship is that of a statutory employer or an independent contractor are: (1) Whether the work being performed by the contractor in question is the same type of work usually performed by the company or is part of the regular business of the company; and (2) Whether the company has the right to control employees of the contractor. Barber v. Purina, 825 S.W.2d 96, 1991 Tenn. App. LEXIS 605 (Tenn. Ct. App. 1991).

Company was not a principal contractor under T.C.A. § 50-6-113 and therefore was not a statutory employer; the company was not liable for workers' compensation benefits, where the company neither possessed nor exercised any control over subcontractor's employees or their conduct of the work. Murray v. Goodyear Tire & Rubber Co., 46 S.W.3d 171, 2001 Tenn. LEXIS 418 (Tenn. 2001).

Administratrix was not precluded from pursuing tort claims against the general contractor under the exclusive remedy provisions of the Tennessee Workers'  Compensation Law, T.C.A. § 50-6-101 et seq., because if the administratrix's contention that the company that the deceased worked for was not a subcontractor of the general contractor, but a separate general contractor was true, the administratrix could have conceivably pursued a claim against a separate party not protected by the exclusive remedy provisions. Therefore, the court could not have concluded, based on the bare allegations of the general contractor, that it was the statutory employer of the deceased and thus insulated by the Tennessee Workers'  Compensation Law. Medrano v. MCDR, Inc., 366 F. Supp. 2d 625, 2005 U.S. Dist. LEXIS 15074 (W.D. Tenn. 2005).

Trial court properly granted summary judgment to a general contractor's auto insurer on a subrogee's negligence claim because the injured employee and a co-worker, who was also the thyroid-party tortfeasor, were employees of the subcontractor, the injured employee and the co-worker were acting in the course and scope of their employment for the subcontractor at the time of the injury, and, thus, the general contractor was the injured employee's statutory employer. T.C.A. § 50-6-113. Erie Ins. Exch. v. Columbia Nat'l Ins. Co., — S.W.3d —, 2013 Tenn. App. LEXIS 60 (Tenn. Ct. App. Jan. 30, 2013), appeal denied, Erie Ins. Exch. v. Columbia Nat'l Ins. Co., — S.W.3d —, 2013 Tenn. LEXIS 673 (Tenn. Aug. 13, 2013).

Court concluded that it improvidently granted permission for the appeal under T.R.A.P. 9. The trial court skipped over the threshold issue of whether appellant's immediate employer was a subcontractor of appellee without addressing it, which was a necessary prerequisite to determining if the employer was a statutory employer, and the court declined to decide the issue since the court, in a Rule 9 interlocutory appeal, could only consider issues that were actually decided by the trial court. Blackwell v. Comanche Constr., Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 251 (Tenn. Ct. App. Apr. 15, 2013).

Collateral References.

Construction and effect of specific provisions of Workers' Compensation Acts in relation to employees of independent contractors or subcontractors. 68 A.L.R. 872.

General or special employer, liability of. 3 A.L.R. 1181, 34 A.L.R. 768, 58 A.L.R. 1467, 152 A.L.R. 816.

Trade, business, or occupation of principal employer, what work of independent contractor or subcontractor is so related to, as to satisfy condition in that regard of provisions of Workers' Compensation Act making employer responsible to employees of contractor. 150 A.L.R. 1214.

NOTES TO DECISIONS

1. Constitutionality.

The Workers' Compensation Act was not invalid as denying employee the right to contract and failing to express such subject in the title, since both the title and body of the act as originally enacted declared it to be elective and no right was taken away from an employee electing not to accept the provisions of the act. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

The amendment that permits offsets against workers' compensation benefits for payments made to an employee under an employer-funded disability plan is not retroactive and the statute in effect at the date of the worker's injury governs the rights of the parties. Nutt v. Champion Int'l Corp., 980 S.W.2d 365, 1998 Tenn. LEXIS 716 (Tenn. 1998).

2. Employee Becoming Member of Association.

Where plaintiff was paid hourly wages before she signed a paper becoming a member of association, and was paid thereafter “merely for the purpose of subsistence,” as stated in paper she signed, employer was not relieved from liability for her injury under Workers' Compensation Law. Schroader v. Rural Educational Ass'n, 33 Tenn. App. 36, 228 S.W.2d 491, 1950 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1950).

3. Reduction of Compensation Benefits.

In the absence of a contract or statute permitting a setoff or credit, an employer is not entitled to a reduction of compensation benefits. Brown v. Western Electric Co., 646 S.W.2d 912, 1983 Tenn. LEXIS 621 (Tenn. 1983).

No set-off of short-term disability plan benefits against statutory permanent disability benefits may be imposed, regardless of the provisions of the employer-funded disability plan. Cantrell v. Electric Power Bd., 811 S.W.2d 84, 1991 Tenn. LEXIS 198 (Tenn. 1991); McCaleb v. Saturn Corp., 910 S.W.2d 412, 1995 Tenn. LEXIS 629 (Tenn. Special Workers' Comp. App. Panel 1995), review denied, 1995 Tenn. LEXIS 664 (Tenn. Nov. 2, 1995).

A judicially-imposed set-off of excess payments of short-term disability benefits is a “rule” which operates to relieve the employer of statutory liability for permanent disability benefits, in violation of T.C.A. § 50-6-114. Cantrell v. Electric Power Bd., 811 S.W.2d 84, 1991 Tenn. LEXIS 198 (Tenn. 1991).

The terms of T.C.A. § 50-6-114 prohibit enforcement of provisions of disability plans or other contracts which purport to permit employers to set off excess supplemental payments of short-term disability benefits against the employer's statutory liability for permanent disability benefits. Cantrell v. Electric Power Bd., 811 S.W.2d 84, 1991 Tenn. LEXIS 198 (Tenn. 1991).

Employer was not entitled to offset payments made to an injured employee under an employer-provided long term disability plan from a workers' compensation award where the employee's injury predated the 1996 amendment to T.C.A. § 50-6-114(b) permitting such offsets; the amendment did not include a provision making it retroactive, and the amendment was neither remedial nor procedural. Nutt v. Champion Int'l Corp., 980 S.W.2d 365, 1998 Tenn. LEXIS 716 (Tenn. 1998).

Trial court erred in denying a set-off because the employer did not knowingly, willfully, or intentionally force the employee to use his health and disability insurance benefits in lieu of receiving workers'  compensation benefits. LaPradd v. Nissan N. Am., Inc., — S.W.3d —, 2016 Tenn. LEXIS 6, 2016 Tenn. LEXIS 6 (Tenn. Jan. 14, 2016).

4. Retaliatory Discharge.

A cause of action for retaliatory discharge, although not explicitly created by T.C.A. § 50-6-114, is necessary to enforce the duty of the employer, to secure the rights of the employee and to carry out the intention of the general assembly. Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 1984 Tenn. LEXIS 935 (Tenn. 1984), superseded by statute as stated in, Medley v. A. W. Chesterton Co., 912 S.W.2d 748, 1995 Tenn. App. LEXIS 584 (Tenn. Ct. App. 1995), superseded by statute as stated in, Fleming v. Sharp Mfg. Co. of Am., — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 103212 (W.D. Tenn. July 25, 2012); Thompson v. Cort Furniture Rental Corp., 797 F. Supp. 618, 1992 U.S. Dist. LEXIS 10083 (W.D. Tenn. 1992).

The decision allowing a successful plaintiff in a suit for retaliatory discharge to recover punitive damages was not applied in the case of first impression and was prospective only. Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 1984 Tenn. LEXIS 935 (Tenn. 1984), superseded by statute as stated in, Medley v. A. W. Chesterton Co., 912 S.W.2d 748, 1995 Tenn. App. LEXIS 584 (Tenn. Ct. App. 1995), superseded by statute as stated in, Fleming v. Sharp Mfg. Co. of Am., — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 103212 (W.D. Tenn. July 25, 2012).

Retaliatory discharge of an employee seeking worker's compensation benefits was a device under T.C.A. § 50-6-114. Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 1984 Tenn. LEXIS 935 (Tenn. 1984), superseded by statute as stated in, Medley v. A. W. Chesterton Co., 912 S.W.2d 748, 1995 Tenn. App. LEXIS 584 (Tenn. Ct. App. 1995), superseded by statute as stated in, Fleming v. Sharp Mfg. Co. of Am., — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 103212 (W.D. Tenn. July 25, 2012); Thompson v. Cort Furniture Rental Corp., 797 F. Supp. 618, 1992 U.S. Dist. LEXIS 10083 (W.D. Tenn. 1992).

Employee-at-will may be discharged without breach of contract for good cause, bad cause or no cause at all; thus, there is no action for retaliatory discharge for such employees. Harney v. Meadowbrook Nursing Center, 784 S.W.2d 921, 1990 Tenn. LEXIS 39 (Tenn. 1990), rehearing denied, — S.W.2d —, 1990 Tenn. LEXIS 95 (Tenn. Feb. 26, 1990).

No public policy was violated by the discharge of an employee-at-will following her testimony in an unemployment compensation case where the employer did not interfere with her testimony but there was a difference of opinion about whether the employee's testimony was truthful. Harney v. Meadowbrook Nursing Center, 784 S.W.2d 921, 1990 Tenn. LEXIS 39 (Tenn. 1990), rehearing denied, — S.W.2d —, 1990 Tenn. LEXIS 95 (Tenn. Feb. 26, 1990).

Action for retaliatory discharge under state law is preempted where plaintiffs' remedies lie within the parameters of the federal Surface Transportation Assistance Act of 1982, 49 U.S.C. App. § 2305. Watson v. Cleveland Chair Co., 789 S.W.2d 538, 1989 Tenn. LEXIS 523 (Tenn. 1989).

In retaliatory discharge case, employer was permitted to discharge an employee pursuant to a facially neutral absence control policy for absence caused by a work-related injury. Anderson v. Standard Register Co., 857 S.W.2d 555, 1993 Tenn. LEXIS 247 (Tenn. 1993), overruled, Perkins v. Metro. Gov't of Nashville & Davidson County, 380 S.W.3d 73, 2012 Tenn. LEXIS 512 (Tenn. Aug. 22, 2012), overruled, Todd v. Shelby County, 407 S.W.3d 212, 2012 Tenn. App. LEXIS 910 (Tenn. Ct. App. Dec. 27, 2012), overruled, Herrin v. Mr. Bult's, Inc., — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 52242 (M.D. Tenn. Apr. 11, 2013), overruled in part, Brasfield v. Martinrea Fabco Auto. Structures United States, Inc., — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 82818 (M.D. Tenn. June 12, 2013).

The following elements are found to establish a cause of action for discharge in retaliation for asserting a workers' compensation claim: (1) The plaintiff was an employee of the defendant at the time of the injury; (2) The plaintiff made a claim against the defendant for workers' compensation benefits; (3) The defendant terminated the plaintiff's employment; and (4) The claim for workers' compensation benefits was a substantial factor in the employer's motivation to terminate the employee's employment. Anderson v. Standard Register Co., 857 S.W.2d 555, 1993 Tenn. LEXIS 247 (Tenn. 1993), overruled, Perkins v. Metro. Gov't of Nashville & Davidson County, 380 S.W.3d 73, 2012 Tenn. LEXIS 512 (Tenn. Aug. 22, 2012), overruled, Todd v. Shelby County, 407 S.W.3d 212, 2012 Tenn. App. LEXIS 910 (Tenn. Ct. App. Dec. 27, 2012), overruled, Herrin v. Mr. Bult's, Inc., — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 52242 (M.D. Tenn. Apr. 11, 2013), overruled in part, Brasfield v. Martinrea Fabco Auto. Structures United States, Inc., — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 82818 (M.D. Tenn. June 12, 2013).

An employee's action for retaliatory discharge was not allowed where he was discharged before he filed his workers' compensation claim and the retaliation was the withholding of severance benefits. Medley v. A. W. Chesterton Co., 912 S.W.2d 748, 1995 Tenn. App. LEXIS 584 (Tenn. Ct. App. 1995).

Employee's motion to remand a claim of alleged retaliatory discharge was granted because removal of a state civil action arising under the state workers'  compensation statute was prohibited under 28 U.S.C. § 1445(c), depriving the federal court of diversity jurisdiction under 28 U.S.C. § 1441(a), and the action necessarily required interpretation of T.C.A. § 50-6-114. Goin v. Bass Pro Outdoor World, LLC, 437 F. Supp. 2d 762, 2006 U.S. Dist. LEXIS 50761 (W.D. Tenn. 2006).

Employer was granted summary judgment on an employee's claim of retaliatory discharge where the person who had made the decision to terminate the employee did not have notice or knowledge of his neck injury, nor had the employee otherwise taken any action that would notified the employer that he was making a claim for workers'  compensation benefits, and the employee also failed to present evidence of a causal connection between a workers'  compensation claim and his termination. Morgan v. HTH Cos., — F. Supp. 2d —, 2011 U.S. Dist. LEXIS 137165 (E.D. Tenn. Nov. 29, 2011).

5. Determination of Status.

The provision in a contract that purported to establish that a certain entity was an independent contractor was not dispositive; whether one is an employee or an independent contractor is one of law for the courts, and the parties cannot by contract take this responsibility from the court. Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 1985 Tenn. LEXIS 591 (Tenn. 1985).

6. Supplemental Disability Benefits.

No public policy or statute is offended by the provision of supplemental disability benefits by employers. Simpson v. Frontier Community Credit Union, 810 S.W.2d 147, 1991 Tenn. LEXIS 181 (Tenn. 1991).

The intentions and expectations of the parties as expressed in an employer-funded disability plan contract should control, and to the extent Lovell v. Metropolitan Government, 696 S.W.2d 2, 1985 Tenn. LEXIS 540 (Tenn. 1985), requires judicial imposition of a set-off where the parties have not so agreed, that case is overruled. Simpson v. Frontier Community Credit Union, 810 S.W.2d 147, 1991 Tenn. LEXIS 181 (Tenn. 1991).

7. Release Agreements.

Release agreement between the parties following employee's previous work related injury, to the extent that it was intended to defeat the present claim, violated public policy and was unenforceable. Fink v. Caudle, 856 S.W.2d 952, 1993 Tenn. LEXIS 378 (Tenn. 1993).

Waiver provision in the settlement agreement between the employee and the employer that waived the employee's reconsideration rights was contrary to T.C.A. § 50-6-114(a) since it effectively relieved the employer of a portion of its obligations under the Workers'  Compensation Law; the waiver provision, therefore, was invalid under the plain language of the statute and enforcement of the prospective waiver provision would thwart the policy underlying an employee's right to seek reconsideration of workers'  compensation benefits. Overman v. Altama Delta Corp., 193 S.W.3d 540, 2006 Tenn. LEXIS 193 (Tenn. 2006).

Trial court erred in granting the employer's motion for summary judgment as the claimant's 2011 asbestosis-related lung disease claim was not barred by res judicata because there was no mention of asbestos or asbestos-related disease in the 2003 complaint or the 2005 order; the evidence provided by the employer did not show with certainty that the existence or cause of asbestos-related disease was at issue in the prior lawsuit; an agreement to prospectively extinguish or reduce the employer's obligations under the Workers'  Compensation Law violated public policy and was unenforceable; and there was no proof of compliance with the requirement for waiver of compensation for any aggravation of the claimant's lung condition by his work. Segroves v. Union Carbide, — S.W.3d —, 2015 Tenn. LEXIS 945 (Tenn. Dec. 10, 2015), aff'd, — S.W.3d —, 2015 Tenn. LEXIS 946 (Tenn. Dec. 10, 2015).

8. Retaliatory Failure to Hire.

Job applicant does not have a cause of action under the Tennessee Workers'  Compensation Act against a prospective employer for failure to hire if the prospective employer failed to hire the job applicant because that applicant had filed, or is likely to file, a workers'  compensation claim against a previous employer; moreover, the Second Injury Fund does not show a legislative intent to allow job applicants who have been previously injured to sue prospective employers for failure to hire. Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 2015 Tenn. LEXIS 630 (Tenn. Aug. 21, 2015).

NOTES TO DECISIONS

1. Law Governing.

Law of the place of contract governs construction and determines legal obligations, though contract calls for work out of the state. Smith v. Van Noy Interstate Co., 150 Tenn. 25, 262 S.W. 1048, 1923 Tenn. LEXIS 60, 35 A.L.R. 1409 (1924); Basham v. Southeastern Motor Truck Lines, Inc., 184 Tenn. 532, 201 S.W.2d 678, 1947 Tenn. LEXIS 407 (1947).

Since an action for an award of compensation is a suit upon a contract, the courts of this state should not undertake to administer the compensation law of another state where there is no machinery or agency in this state for enforcing such a contract. Davis v. Swift & Co., 175 Tenn. 210, 133 S.W.2d 483, 1939 Tenn. LEXIS 31 (1939).

Where an Illinois resident employed by an Illinois corporation which had qualified under the workers' compensation statutes of both Tennessee and Illinois was injured while working in Tennessee, such employee could have recovered under the statutes of either state. United States Casualty Co. v. Standard Acc. Ins. Co., 175 Tenn. 559, 136 S.W.2d 504, 1939 Tenn. LEXIS 75, 126 A.L.R. 876 (1940).

Where evidence was sufficient to support finding of chancellor that injury occurred in Tennessee under a Tennessee contract, such finding would not be disturbed. Brewer v. Pocahontas Fuel Co., 221 Tenn. 130, 425 S.W.2d 582, 1968 Tenn. LEXIS 452 (1968).

Employees hired in another state could maintain an action in Tennessee for benefits under the Tennessee Workers' Compensation Law where they incurred accidental injury while in the scope and course of their employment in Tennessee. Millican v. Liberty Mut. Ins. Co., 224 Tenn. 604, 460 S.W.2d 842, 1970 Tenn. LEXIS 362 (1970).

Dependents of Tennessee resident, employed and based in Alabama but killed in Tennessee, could assert claim under Tennessee statute. Argonaut Ins. Co. v. Vanatta, 539 S.W.2d 35, 1976 Tenn. LEXIS 571 (Tenn. 1976).

The fact that the employer was in Tennessee when he accepted an offer given by phone to work in Arkansas made Tennessee the place of contract of hire and brought into play the employer's extraterritorial liability under this statute when a work-related injury occurred. Tolley v. General Acci., Fire & Life Ins. Corp., 584 S.W.2d 647, 1979 Tenn. LEXIS 462 (Tenn. 1979).

Since the employment contract was not made in Tennessee, the entire period of employment was outside Tennessee, and the injury occurred outside Tennessee, the employee is not entitled to workers' compensation benefits under Tennessee law. Perkins v. BE&K, Inc., 802 S.W.2d 215, 1990 Tenn. LEXIS 486 (Tenn. 1990), rehearing denied, Perkins v. BE & K, Inc., — S.W.2d —, 1991 Tenn. LEXIS 74 (Tenn. Feb. 19, 1991).

2. Conflict of Laws.

Where an employee of a Tennessee corporation made his contract of employment in this state but was injured in course of employment in Ohio, a defense to a proceeding in the latter state under the Ohio compensation law does not preclude recovery there, where as construed by the Tennessee courts the statute does not preclude recovery under the laws of another state. Ohio v. Chattanooga Boiler & Tank Co., 289 U.S. 439, 53 S. Ct. 663, 77 L. Ed. 1307, 1933 U.S. LEXIS 189 (1933).

3. Pursuit of Claim in Another Jurisdiction.

Under certain circumstances, the pursuit of a compensation claim in another jurisdiction may preclude the filing of the same claim in the courts of Tennessee, especially where it results in an award or an approved settlement. Gray v. Holloway Constr. Co., 834 S.W.2d 277, 1992 Tenn. LEXIS 363 (Tenn. 1992).

A Tennessee employee who pursued benefits in the foreign state in which the injury occurred was barred by the doctrine of election of remedies from pursuing benefits in Tennessee for the same injury. Bradshaw v. Old Republic Ins. Co., 922 S.W.2d 503, 1996 Tenn. LEXIS 307 (Tenn. 1996).

4. Injuries Outside of State Included.

The statute provides for contractual relationship and includes injuries out of the state. Smith v. Van Noy Interstate Co., 150 Tenn. 25, 262 S.W. 1048, 1923 Tenn. LEXIS 60, 35 A.L.R. 1409 (1924); Basham v. Southeastern Motor Truck Lines, Inc., 184 Tenn. 532, 201 S.W.2d 678, 1947 Tenn. LEXIS 407 (1947).

If an accident happens outside the state which would have entitled the employee to benefits if it had happened inside this state, the employee is entitled to compensation under the Tennessee statute unless otherwise expressly provided in the employment contract. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

Where (1) The principal contractor, subcontractor and subcontractor's injured employee were all citizens of Tennessee; (2) The contract of employment between employee and subcontractor was executed in Tennessee; (3) Both the principal contractor and subcontractor had complied with Tennessee Workers' Compensation Law; and (4) The employee was injured in another state under circumstances which would have been compensable in Tennessee, Tennessee Workers' Compensation Law provided exclusive remedy in courts of Tennessee and suit against principal contractor based on common law negligence would be barred if Tennessee Workers' Compensation Law was pleaded as a defense. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

5. Recovery in Other State as Bar to Suit.

A petitioner entitled to compensation under this statute, who procured recovery of compensation in another state where the injury occurred, cannot proceed to recover here. Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221, 1931 Tenn. LEXIS 131 (1931), rehearing denied, 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931), rehearing denied, Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931); Ohio v. Chattanooga Boiler & Tank Co., 289 U.S. 439, 53 S. Ct. 663, 77 L. Ed. 1307, 1933 U.S. LEXIS 189 (1933).

A widow's recovery of compensation for death of her husband in another state under compensation act affords good defense to proceeding in this state. Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221, 1931 Tenn. LEXIS 131 (1931), rehearing denied, 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931), rehearing denied, Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931).

Instituting proceedings in a foreign state to recover compensation for death of employee was a clear renunciation or disaffirmance of the contract of employment made in this state, which precluded claim of benefits of contract in subsequent suit in this state, and the election to disaffirm is irrevocable where petitioner has taken the benefit of the suit in the other state. Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221, 1931 Tenn. LEXIS 131 (1931), rehearing denied, 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931), rehearing denied, Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931).

Where contract of employment was made in Tennessee and plaintiff was employed principally in Tennessee but was injured on job in Virginia and he obtained worker's compensation benefits in Virginia under Virginia law, he could not thereafter obtain benefits for the same injury under Tennessee law. True v. Amerail Corp., 584 S.W.2d 794, 1979 Tenn. LEXIS 475 (Tenn. 1979).

6. Election of Benefits.

The circumstances of each case must be considered in determining whether the employee has made a binding election. The mere acceptance of benefits from another state does not constitute an election, but affirmative action to obtain benefits or knowing and voluntary acceptance of benefits from another state will be sufficient to establish a binding election. Perkins v. BE&K, Inc., 802 S.W.2d 215, 1990 Tenn. LEXIS 486 (Tenn. 1990), rehearing denied, Perkins v. BE & K, Inc., — S.W.2d —, 1991 Tenn. LEXIS 74 (Tenn. Feb. 19, 1991).

Where defendants made the decision to proceed under Virginia workers' compensation law, and plaintiff, without being given an opportunity to make a knowledgeable and informed choice, merely accepted the benefits which were tendered, plaintiff's actions were not sufficient to constitute a binding election which would preclude him from receiving benefits under Tennessee law. Hale v. Fraley's, Inc., 825 S.W.2d 690, 1992 Tenn. LEXIS 132 (Tenn. 1992).

Employee, Tennessee resident who was injured in Texas, could not pursue common law tort claims against a general contractor or a co-worker as Tennessee workers'  compensation benefits had been awarded under T.C.A. § 50-6-115; exclusivity provision barred the claims under T.C.A. § 50-6-108 because the employer as a subcontractor had provided workers'  compensation insurance under T.C.A. § 50-6-113. Scott v. AMEC Kamtech, Inc., 583 F. Supp. 2d 912, 2008 U.S. Dist. LEXIS 73662 (E.D. Tenn. Sept. 24, 2008).

7. Wrongful Rejection of Claim — Effect.

When the party primarily liable under the Tennessee Workers' Compensation Law wrongfully rejected an extraterritorial claim without offering to pay compensation under the Tennessee law and thus created, by its own act, the necessity that the principal contractor pay the extraterritorial compensation, the party primarily liable cannot use any defense based on the injured worker's election to first proceed extraterritorially. Tolley v. General Acci., Fire & Life Ins. Corp., 584 S.W.2d 647, 1979 Tenn. LEXIS 462 (Tenn. 1979).

8. Localization.

Although state residence is a factor to be considered in determining “localization,” it is not a controlling factor. Matthews v. St. Paul Property & Liability Ins., 845 S.W.2d 737, 1992 Tenn. LEXIS 575 (Tenn. 1992).

9. Nonresident Principal Contractor.

Fact that employee of subcontractor of project in New Mexico was a resident of Tennessee and entered into employment contract with such subcontractor in Tennessee, could not, under the provisions of § 50-6-113, make the principal contractor of the New Mexico project liable to such employee under the Tennessee Workers' Compensation Law, where such principal contractor was a nonresident of Tennessee, although it did business in Tennessee. Smith v. Rockwell International Corp., 581 S.W.2d 954, 1979 Tenn. LEXIS 441 (Tenn. 1979).

10. Contract of Hire.

Where employee's affidavit showed that a company representative stated to him that the company was going to be working in Covington, Virginia, and that as a result of the phone call he proceeded to Covington, Virginia, where “work papers” were signed, and the employee's work was confined to the site in Virginia where the injury occurred, the only event that happened in Tennessee was the employer's telephone call to the employee notifying him of available work at the project site in Virginia. Such notification does not constitute a contract of hire within the meaning of T.C.A. § 50-6-115. Perkins v. BE&K, Inc., 802 S.W.2d 215, 1990 Tenn. LEXIS 486 (Tenn. 1990), rehearing denied, Perkins v. BE & K, Inc., — S.W.2d —, 1991 Tenn. LEXIS 74 (Tenn. Feb. 19, 1991).

Where employer offered Tennessee resident a job during a telephone conversation and the offer was accepted, and even though a written contract was later executed in Missouri memorializing the details of the agreement, the “contract of hire” between employer and resident was made in Tennessee; therefore, Tennessee court had jurisdiction over resident's compensation claim. Matthews v. St. Paul Property & Liability Ins., 845 S.W.2d 737, 1992 Tenn. LEXIS 575 (Tenn. 1992).

In a personal injury case in which a worker, who had been employed by a subcontractor to a general contractor, appealed a district court's entry of summary judgment in favor of the general contractor, under T.C.A. § 50-6-108(a), the Tennessee Workers'  Compensation Act provided the worker with his exclusive remedy, the general contractor was immune under T.C.A. § 50-6-113 to the same extent as the worker's employer, and T.C.A. § 50-6-115 and was relevant to the case. Scott v. AMEC Kamtech, Inc., 412 Fed. Appx. 818, — F.3d —, 2011 U.S. App. LEXIS 3758, 2011 FED App. 111N (6th Cir.).

11. Appeal.

Where the trial court did not find as a fact that a Tennessee contract governed by Tennessee law was involved, such a finding could not be justified on appeal. Bryant v. Seward, 490 S.W.2d 497, 1973 Tenn. LEXIS 517 (Tenn. 1973).

NOTES TO DECISIONS

1. Medical Proof.

In determining that a claimant failed to establish a compensable injury to his left shoulder, the trial court did not err in its evaluation of the medical proof. Thysavathdy v. Bridgestone Ams. Tire Operations, — S.W.3d —, 2018 Tenn. LEXIS 313 (Tenn. June 8, 2018).

NOTES TO DECISIONS

1. Common-Law Rule Inapplicable.

The rule of the common law requiring strict construction is not applicable. Williams v. Carolina, C. & O. R. Co., 154 Tenn. 224, 289 S.W. 520, 1926 Tenn. LEXIS 117 (1926); Carmichael v. J. C. Mahan Motor Co., 157 Tenn. 613, 11 S.W.2d 672, 1928 Tenn. LEXIS 228 (1928).

The Workers' Compensation Law is in derogation of the common law, but contrary to the general rule of statutory construction, is to be given a liberal interpretation. Matthews v. Hardaway Contracting Co., 179 Tenn. 98, 163 S.W.2d 59, 1941 Tenn. LEXIS 99 (1942).

2. Equitable and Liberal Construction.

This statute is to be construed liberally as to persons entitled to its benefits. Johnson Coffee Co. v. McDonald, 143 Tenn. 505, 226 S.W. 215, 1920 Tenn. LEXIS 37 (1920); Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S.W.2d 860, 1928 Tenn. LEXIS 119 (1928); Brown v. Birmingham Nurseries, 173 Tenn. 343, 117 S.W.2d 739, 1937 Tenn. LEXIS 31 (1938); Webster v. Lloyd A. Fry Roofing Co., 177 Tenn. 122, 146 S.W.2d 946, 1940 Tenn. LEXIS 18 (1941); Matthews v. Hardaway Contracting Co., 179 Tenn. 98, 163 S.W.2d 59, 1941 Tenn. LEXIS 99 (1942); Thornton v. RCA Service Co., 188 Tenn. 644, 221 S.W.2d 954, 1949 Tenn. LEXIS 384 (1949); Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372, 1954 Tenn. LEXIS 458 (1954); Kitts v. American Mut. Liability Ins. Co., 133 F. Supp. 937, 1955 U.S. Dist. LEXIS 2971 (D. Tenn. 1955); Stovall v. General Shoe Corp., 204 Tenn. 358, 321 S.W.2d 559, 1959 Tenn. LEXIS 288 (1959); Ransom v. H. G. Hill Co., 205 Tenn. 377, 326 S.W.2d 659, 1959 Tenn. LEXIS 374 (1959); Sharp v. Jenkins, 211 Tenn. 691, 367 S.W.2d 464, 1963 Tenn. LEXIS 392 (1963); Ward v. Commercial Ins. Co., 213 Tenn. 100, 372 S.W.2d 292, 1963 Tenn. LEXIS 473 (1963); Shubert v. Steelman, 214 Tenn. 102, 377 S.W.2d 940, 1964 Tenn. LEXIS 454 (1964); Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965).

This statute is to be construed liberally as to its terms and provisions. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924); Moss v. Aluminum Co. of America, 152 Tenn. 249, 276 S.W. 1052, 1925 Tenn. LEXIS 69 (1925); Cherokee Sand Co. v. Green, 152 Tenn. 412, 277 S.W. 905, 1925 Tenn. LEXIS 84 (1925); Knox v. Washer, 153 Tenn. 630, 284 S.W. 888, 1925 Tenn. LEXIS 48 (1926); Partee v. Memphis Concrete Pipe Co., 155 Tenn. 441, 295 S.W. 68, 1926 Tenn. LEXIS 64 (1927); Cherokee Brick Co. v. Bishop, 156 Tenn. 168, 299 S.W. 770, 1927 Tenn. LEXIS 99 (1927); S. C. Weber Iron & Steel Co. v. Jeffery, 161 Tenn. 142, 29 S.W.2d 656, 1929 Tenn. LEXIS 42 (1930); Marshall Const. Co. v. Russell, 163 Tenn. 410, 43 S.W.2d 208, 1931 Tenn. LEXIS 130 (1931); Louis T. Hooper Tire Co. v. Maneese, 164 Tenn. 51, 45 S.W.2d 1071, 1931 Tenn. LEXIS 9 (1931); Parks v. E. M. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285, 1934 Tenn. LEXIS 70 (1935); Maxwell v. Beck, 169 Tenn. 315, 87 S.W.2d 564, 1935 Tenn. LEXIS 46 (1935); Adams v. Hercules Powder Co., 180 Tenn. 340, 175 S.W.2d 319, 1943 Tenn. LEXIS 21, 151 A.L.R. 1352 (1943); Martin v. Free Service Tire Co., 189 Tenn. 327, 225 S.W.2d 249, 1949 Tenn. LEXIS 433 (1949); Turner v. Bluff City Lumber Co., 189 Tenn. 621, 227 S.W.2d 1, 1950 Tenn. LEXIS 401 (1950); Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

The supreme court has never been unmindful of the remedial nature of this legislation, and the law has been uniformly construed so as to secure for the beneficiaries of the law every protection a liberal construction authorized. Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717, 1928 Tenn. LEXIS 177 (1929); Turner v. Bluff City Lumber Co., 189 Tenn. 621, 227 S.W.2d 1, 1950 Tenn. LEXIS 401 (1950).

The Workers' Compensation Law is a remedial statute to be given an equitable construction, to the end that its objects and purposes may be realized. Walters v. Eagle Indem. Co., 166 Tenn. 383, 61 S.W.2d 666, 1932 Tenn. LEXIS 146, 88 A.L.R. 654 (1933).

This statute is not to be construed strictly as being in derogation of the common law, but liberally in favor of the claimant and in furtherance of the sound public policy that dictated the legislation. Ogle v. Tennessee Eastman Corp., 185 Tenn. 527, 206 S.W.2d 909, 1947 Tenn. LEXIS 366 (1947); Edwards v. Harvey, 194 Tenn. 603, 253 S.W.2d 766, 1952 Tenn. LEXIS 428 (1952); Parker v. Ryder Truck Lines, Inc., 591 S.W.2d 755, 1979 Tenn. LEXIS 528 (Tenn. 1979).

All reasonable doubts as to whether an injury arose out of employment must be construed in favor of the employee. Great American Indem. Co. v. Friddell, 198 Tenn. 360, 280 S.W.2d 908, 1955 Tenn. LEXIS 381 (1955); Sharp v. Jenkins, 211 Tenn. 691, 367 S.W.2d 464, 1963 Tenn. LEXIS 392 (1963); Ward v. Commercial Ins. Co., 213 Tenn. 100, 372 S.W.2d 292, 1963 Tenn. LEXIS 473 (1963); Shubert v. Steelman, 214 Tenn. 102, 377 S.W.2d 940, 1964 Tenn. LEXIS 454 (1964).

In determining whether one is an employee or an independent contractor, it is the duty of the court to give the Workers' Compensation Law a liberal construction in favor of the fact that he is an employee, rather than a strict construction. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956).

Under the rule of liberality of construction, recovery may be had for aggravation of a  injury where such issue is raised by the evidence, even though the employee does not allege such ground in his pleading or seek at the outset to recover on this theory. Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 315 S.W.2d 245, 1958 Tenn. LEXIS 230 (1958).

Statute would be liberally construed in determining whether heat stroke which aggravated  arteriosclerosis condition was a compensable injury. Eslinger v. Miller Bros. Co., 203 Tenn. 688, 315 S.W.2d 261, 1958 Tenn. LEXIS 236 (1958).

The statute is remedial and intended to burden industry with the responsibility of industrial accidents by requiring compensation for benefit of injured employees or in case of their death by accident to their dependents so as to relieve society of that obligation, and the law will be broadly construed to accomplish the ends intended. Commercial Ins. Co. v. Young, 209 Tenn. 608, 354 S.W.2d 779, 1961 Tenn. LEXIS 425 (1961); Smith v. Tennessee Furniture Industries, Inc., 212 Tenn. 291, 369 S.W.2d 721, 1963 Tenn. LEXIS 423 (1963).

The statute should be liberally construed to secure the beneficiaries thereof every reasonable protection which it authorized, resolving any reasonable doubt as to whether the act or injury arose out of the employment in favor of the employee where rationally possible. Ward v. Ward, 213 Tenn. 657, 378 S.W.2d 754, 1964 Tenn. LEXIS 434 (1964).

Chancellor did not err in permitting defendant employee to insert into compensation case by way of amended answer allegation seeking relief on earlier injury which allegedly resulted in original disability of employee which employee claimed was aggravated by second injury which was the subject of employer's suit to settle dispute as to second injury. Bristol v. Reed, 218 Tenn. 173, 402 S.W.2d 124, 1966 Tenn. LEXIS 559 (1966).

Equity delights in giving complete relief and in avoiding a multiplicity of suits and should consider any pertinent claim for relief that is reasonably connected with the original bill. Bristol v. Reed, 218 Tenn. 173, 402 S.W.2d 124, 1966 Tenn. LEXIS 559 (1966).

This section is a mandate that the Workers' Compensation Law be interpreted liberally in favor of persons entitled to its benefits so that its purpose and intent be fulfilled. Wormsley v. Consolidation Coal Co., 408 F.2d 79, 1969 U.S. App. LEXIS 13447 (6th Cir. Tenn. 1969); Curtis v. Hamilton Block Co., 225 Tenn. 275, 466 S.W.2d 220, 1971 Tenn. LEXIS 300 (1971).

The act is remedial and to be liberally construed in favor of those entitled to its benefits and any reasonable doubt as to whether an injury arose out of and in the employment is to be resolved in favor of the employee or his dependents. Williams v. Preferred Development Corp., 224 Tenn. 174, 452 S.W.2d 344, 1970 Tenn. LEXIS 310 (1970).

Even where the evidence allows inferences which could support the contention of either party, the court is bound by the strong public policy, as enunciated in this section, to resolve doubts and conflicts in favor of the claimant. Wheeler v. Glens Falls Ins. Co., 513 S.W.2d 179, 1974 Tenn. LEXIS 461 (Tenn. 1974).

The state supreme court must interpret the workers' compensation statutes in a manner designed to protect workers and their families from the economic devastation that, in many instances, can follow on-the-job injuries, and must construe the workers' compensation laws so as to ensure that injured employees are justly and appropriately reimbursed for debilitating injuries suffered in the course of service to the employer. Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991).

3. —Duties and Requirements as to Industry — Effect.

The statute is remedial and intended to require industry to provide for its own casualties.

This statute is remedial, intended to burden industry with the responsibility of industrial accident by requiring compensation for benefit of injured employees, or, in case of their death by accident, to their dependents, so as to relieve society of the obligation. Therefore, the statute is not to be given a narrow construction, but should be applied fairly and broadly to accomplish the ends intended. Partee v. Memphis Concrete Pipe Co., 155 Tenn. 441, 295 S.W. 68, 1926 Tenn. LEXIS 64 (1927); Maxwell v. Beck, 169 Tenn. 315, 87 S.W.2d 564, 1935 Tenn. LEXIS 46 (1935).

This statute is not a statute of descent or distribution. It was intended to relieve society of the burden of caring for injured workers or their dependents and to place that burden upon the industry employing the workers. Kinnard v. Tennessee Chemical Co., 157 Tenn. 206, 7 S.W.2d 807, 1927 Tenn. LEXIS 66 (1928).

This statute expresses the general public policy of the state as to the respective rights and obligations growing out of injuries to employees in furtherance of employer's business. The public, as well as the parties, therefore is interested in its application. Walsh v. Myer Hotel Co., 161 Tenn. 355, 30 S.W.2d 225, 1929 Tenn. LEXIS 64 (1930).

4. —Application and Effect of Required Construction.

Employee killed while crawling under a train on way home by exit commonly used by other employees, against the natural danger of which the employer had made no provision held to have been killed by accident growing out of and in course of employment, in view of the equitable construction required by this section, especially since employee's work extended over the scene of the accident. Moore v. Cincinnati, N. O. & T. P. R. Co., 148 Tenn. 561, 256 S.W. 876, 1923 Tenn. LEXIS 43 (1923), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Construing the statute as required by this section, right to compensation for total loss of eye resulting in immediate injury is barred by failure to apply therefor within one year from occurrence of the accident. Graham v. J. W. Wells Brick Co., 150 Tenn. 660, 266 S.W. 770, 1924 Tenn. LEXIS 35 (1924).

Equitable construction of this statute warrants recovery of employee, whose leg is partially lost, of compensation for temporary total disability and following its disappearance, to compensation for permanent partial disability left thereafter. Cherokee Sand Co. v. Green, 152 Tenn. 412, 277 S.W. 905, 1925 Tenn. LEXIS 84 (1925).

Proceeding under this law being equitable in nature under the express provisions of the statute, the burden is upon petitioner to prove averment that employer had the requisite number of employees to bring it within the application of this act. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

Following direction of this section for equitable construction of the statute, compensation for physical loss of two toes and loss of use of two other toes could properly be awarded for loss of 75 percent of the normal use of the foot rather than for loss and loss of use of toes considered separately, this being course more favorable to employee. S. C. Weber Iron & Steel Co. v. Jeffery, 161 Tenn. 142, 29 S.W.2d 656, 1929 Tenn. LEXIS 42 (1930).

Failure of claimant or agent to give technical statutory notice that injury arose out of employment will not defeat recovery of workers' compensation if employer has actual knowledge of facts which would have reasonably suggested conclusion, since statutory purpose will be upheld without prejudice to employer. Powers v. Beasley, 197 Tenn. 549, 276 S.W.2d 720, 1955 Tenn. LEXIS 315 (1955).

Where duties of employee employed by sole employer were many and varied and included driving employer's automobile both for business purposes and for purposes purely personal to employer, and where employee was injured while driving employer on a trip purely personal to employer but which was not personal to employee and which employee was making solely because directed to do so by employer, the provisions of this section as to equitable construction of the statute to secure the remedial purposes of the law required that such employee be entitled to compensation under the statute. McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956).

This act is remedial and is to be liberally construed in favor of those entitled to its benefits, and any reasonable doubt as to whether an injury arose out of and in the course of employment is to be resolved in favor of the employee or his dependents. Parker v. Ryder Truck Lines, Inc., 591 S.W.2d 755, 1979 Tenn. LEXIS 528 (Tenn. 1979).

A worker's personal representative may recover benefits on behalf of the deceased employee from the time of injury to the time of death, even though the worker's death was unrelated to the employment. Warrick v. Cheatham County Highway Dep't, 60 S.W.3d 815, 2001 Tenn. LEXIS 821 (Tenn. 2001).

5. —Limitations and Restrictions upon Construction.

While it is true that a reason for compensation legislation is the protection of the public from the burden incident to support of those rendered dependent by accidental injuries and that a liberal construction should be given to all the terms of the act, the liability of employers is subject to some limitations. The injury must be one that by the exercise of foresight the employer might have contemplated as a result of engaging in the business and contracting with his workmen. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924).

The rule of liberal construction in dealing with this statute forbids giving to a word used in the statute a restricted or literal meaning which would defeat the legislative intent. Diamond Coal Co. v. Jackson, 156 Tenn. 179, 299 S.W. 802, 1927 Tenn. LEXIS 100 (1927).

Under the rule that the Workers' Compensation Law is to be applied fairly and to the accomplishment of the end intended, the statute cannot be given a restricted or literal meaning which would defeat the legislative intent. Maxwell v. Beck, 169 Tenn. 315, 87 S.W.2d 564, 1935 Tenn. LEXIS 46 (1935).

Liberality in construing the Workers' Compensation Law will not permit the court to evade the plain provisions of the statute itself. Adams v. Hercules Powder Co., 180 Tenn. 340, 175 S.W.2d 319, 1943 Tenn. LEXIS 21, 151 A.L.R. 1352 (1943).

The courts in giving the compensation statute an equitable construction must at the same time be careful not to enter the field of legislation. Willoughby v. Warstler & Egly Bakery, Inc., 201 Tenn. 277, 298 S.W.2d 727, 1957 Tenn. LEXIS 423 (1957).

Rule that statute is to be given a broad construction does not permit court to legislate a provision into the statute that is not there. Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 1963 Tenn. LEXIS 410 (1963).

Although the Tennessee Workers'  Compensation Act, T.C.A. § 50-6-101 et seq., was a remedial statute and was to be equitably construed under T.C.A. § 50-6-116, an employee's administrative remedies were not effectively exhausted for T.C.A. §§ 50-6-203(a) and 50-6-225(a)(1) purposes by the Tennessee Department of Labor's long period of inaction on the employee's request for assistance under T.C.A. § 50-6-238. Chapman v. Davita, Inc., 380 S.W.3d 710, 2012 Tenn. LEXIS 643 (Tenn. Sept. 21, 2012).

6. — —Persons Not Embraced in Terms of Statute.

The rule of liberal construction cannot be resorted to for the purpose of extending the statute to persons not embraced in the terms of the statute, as to a policeman of a city. Cornett v. Chattanooga, 165 Tenn. 563, 56 S.W.2d 742, 1932 Tenn. LEXIS 86 (1933).

7. Practice and Procedure.

In compensation cases, broadly speaking, the procedure resembles that of a suit in equity, and the policy of the courts in construing these statutes seems to be to get away from technical pleading. Byrd v. Pioneer-Jellico Coal Co., 180 Tenn. 396, 175 S.W.2d 542, 1943 Tenn. LEXIS 34 (1943).

8. —Pleading.

Proceeding under this law being equitable in nature under the express provisions of the statute, every essential averment of fact in the petition not admitted by the answer is denied. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

By construction, the court inclines from technicalities in pleading to simplicity as far as possible. R. W. Hartwell Motor Co. v. Hickerson, 160 Tenn. 513, 26 S.W.2d 153, 1929 Tenn. LEXIS 127 (1930).

Proceedings under the statute are equitable in nature, and where the accidental injury averred in the petition of the injured employee was neither admitted nor denied in the answer of the employer, such injury was taken as denied. Riley v. Knoxville Iron Co., 178 Tenn. 107, 156 S.W.2d 398, 1941 Tenn. LEXIS 37 (1941).

9. — —Amendment.

In a proceeding by employee to set aside lump settlement on the ground of fraud, the proceeding was equitable and employee was entitled to amend his petition so as to show a tender into court of amount received in lump settlement. Beard v. Standard Coosa Thatcher Co., 188 Tenn. 14, 216 S.W.2d 706, 1948 Tenn. LEXIS 487 (1948).

10. —Evidence.

Requirement of equitable construction, under this statute, does not warrant admission of hearsay evidence in compensation case, such as statements of what employee told witness as to cause of injuries. Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717, 1928 Tenn. LEXIS 177 (1929).

The rule of reasonable inference where evidence is circumstantial is recognized. R. W. Hartwell Motor Co. v. Hickerson, 160 Tenn. 513, 26 S.W.2d 153, 1929 Tenn. LEXIS 127 (1930).

It is elemental that this law is to be given a liberal construction yet the award must be supported by material evidence and must not be left to conjecture. Patton v. L. O. Brayton & Co., 184 Tenn. 592, 201 S.W.2d 981, 1947 Tenn. LEXIS 281 (1947).

11. —Presumptions.

There is a presumption in favor of validity of a marriage after a lapse of many years, so as to justify an award of compensation. Bohlen-Huse Coal & Ice Co. v. McDaniel, 148 Tenn. 628, 257 S.W. 848, 1923 Tenn. LEXIS 48 (1924); Kinnard v. Tennessee Chemical Co., 157 Tenn. 206, 7 S.W.2d 807, 1927 Tenn. LEXIS 66 (1928).

One presumption cannot be deduced from another but only from facts. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928).

12. —Conclusions of Court.

The mandate of the statute requires a liberal construction of its provisions in favor of injured employees, but such liberality does not impose upon the courts the duty of reaching definite conclusions as to what the facts show. Farris v. Yellow Cab Co., 189 Tenn. 46, 222 S.W.2d 187, 1949 Tenn. LEXIS 397 (1949).

13. —Appeal.

In a proceeding in circuit court by employee to set aside a lump settlement for compensation, the trial court was entitled to grant a discretionary appeal to employer upon overruling of employer's demurrer since an equitable proceeding was involved and rules of chancery applied. Beard v. Standard Coosa Thatcher Co., 188 Tenn. 14, 216 S.W.2d 706, 1948 Tenn. LEXIS 487 (1948).

The Workers' Compensation Law will not be construed to permit an employer not joining the insurer in an appeal from the trial court to thereby increase the liability of the insurer beyond that which the law places upon it. Bituminous Casualty Corp. v. Smith, 200 Tenn. 13, 288 S.W.2d 913, 1956 Tenn. LEXIS 372 (1956).

Collateral References.

Recovery for discharge from employment in retaliation for filing worker's compensation claim. 32 A.L.R.4th 1221.

NOTES TO DECISIONS

1. Attorney Fees.

Language of T.C.A. § 50-6-238(d)(3) expressly applies with respect to penalties assessed against insurers or self-insured employers because there is no indication that the legislature intended these provisions to extend to a specialist's order regarding attorney fees where no penalty is assessed; the workers'  compensation provisions regarding penalties do not reference attorney fees as penalties, T.C.A. § 50-6-118, Tenn. Comp. R. & Regs. § 0800-02-13. C.H. Guenther & Son, Inc. v. Head, — S.W.3d —, 2012 Tenn. App. LEXIS 852 (Tenn. Ct. App. Dec. 10, 2012).

Collateral References.

Workers' compensation: availability, rate, or method of calculation of interest on attorney's fees or penalties. 79 A.L.R.5th 201.

NOTES TO DECISIONS

1. Cause of Action Against Employer.

T.C.A. § 50-6-123 does not expressly or impliedly grant a cause of action to an employee against an employer who fails to perform its case management duties in accordance with the guidelines promulgated by the commissioner. Reed v. Alamo Rent-A-Car, Inc., 4 S.W.3d 677, 1999 Tenn. App. LEXIS 207 (Tenn. Ct. App. 1999).

NOTES TO DECISIONS

1. Denial of Set-off.

Trial court erred in denying a set-off because the employer did not knowingly, willfully, or intentionally force the employee to use his health and disability insurance benefits in lieu of receiving workers'  compensation benefits. LaPradd v. Nissan N. Am., Inc., — S.W.3d —, 2016 Tenn. LEXIS 6, 2016 Tenn. LEXIS 6 (Tenn. Jan. 14, 2016).

NOTES TO DECISIONS

1. Denial of Set-off.

Trial court erred in denying a set-off because the employer did not knowingly, willfully, or intentionally force the employee to use his health and disability insurance benefits in lieu of receiving workers'  compensation benefits. LaPradd v. Nissan N. Am., Inc., — S.W.3d —, 2016 Tenn. LEXIS 6, 2016 Tenn. LEXIS 6 (Tenn. Jan. 14, 2016).

50-6-201. Notice of injury.

1. 1. Every injured employee or the injured employee's representative shall, immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, give or cause to be given to the employer who has no actual notice, written notice of the injury, and the employee shall not be entitled to physician's fees or to any compensation that may have accrued under this chapter, from the date of the accident to the giving of notice, unless it can be shown that the employer had actual knowledge of the accident. No compensation shall be payable under this chapter, unless the written notice is given to the employer within fifteen (15) days after the occurrence of the accident, unless reasonable excuse for failure to give the notice is made to the satisfaction of the tribunal to which the claim for compensation may be presented.
   2. The notice of the occurrence of an accident by the employee required to be given to the employer shall state in plain and simple language the name and address of the employee and the time, place, nature, and cause of the accident resulting in injury or death. The notice shall be signed by the claimant or by some person authorized to sign on the claimant's behalf, or by any one (1) or more of the claimant's dependents if the accident resulted in death to the employee.
   3. No defect or inaccuracy in the notice shall be a bar to compensation, unless the employer can show, to the satisfaction of the workers' compensation judge before which the matter is pending, that the employer was prejudiced by the failure to give the proper notice, and then only to the extent of the prejudice.
   4. The notice shall be given personally to the employer or to the employer's agent or agents having charge of the business at which the injury was sustained by the employee.
2. In those cases where the injuries occur as the result of gradual or cumulative events or trauma, then the injured employee or the injured employee's representative shall provide notice of the injury to the employer within fifteen (15) days after the employee:
   1. Knows or reasonably should know that the employee has suffered a work-related injury that has resulted in permanent physical impairment; or
   2. Is rendered unable to continue to perform the employee's normal work activities as the result of the work-related injury and the employee knows or reasonably should know that the injury was caused by work-related activities.
3. [Deleted by 2013 amendment, effective July 1, 2014.]

Acts 1919, ch. 123, § 22; Shan. Supp., § 3608a171; Code 1932, § 6872; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1001; Acts 2001, ch. 219, § 1; 2006, ch. 1014, § 3; 2013, ch. 289, § 29; 2016, ch. 1056, § 1.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which amended subsection (a) and deleted subsection (c), shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Acts 2016, ch. 1056, § 6 provided that section 1 of the act, which amended this section to change the notice provisions, shall apply to injuries that occur on or after July 1, 2016. The 30 day notice period effective prior to July 1, 2016 is applicable to injuries that occurred between July 1, 2014 and June 30, 2016.

Amendments. The 2013 amendment, effective July 1, 2014, added (a)(1)-(3); and deleted (c) which read: “Within thirty (30) calendar days of the notice of injury, the insurer, employer, or self-insured pool or trust shall file with the department, on a form prescribed by the department, a wage statement detailing the employee's wages for the previous fifty-two (52) weeks, unless the employer stipulates that the maximum weekly workers' compensation rate applies in the particular matter. In the event the insurer, employer, or self-insured pool or trust knowingly and intentionally fails to timely file the wage statement, a workers' compensation specialist may deem the employee's compensation rate to be the maximum workers' compensation rate effective on the date of injury. This subsection (c) shall apply only to accidents that result in death or personal injury of such a nature that the injured person either does not return to the person's employment within seven (7) days after the occurrence of the accident or has a permanent impairment resulting from the accident. If the employer, insurer or self-insured pool fails to file the wage statement within thirty (30) days and the maximum rate is imposed, then the employer, insurer or self-insured pool may file a wage statement at a later time. If the late filed wage statement reflects that the compensation rate is less than the maximum compensation rate, the employer, insurer or self-insured pool may then reduce the compensation rate.”

The 2016 amendment substituted “fifteen (15) days” for “thirty (30) days” in the second sentence of (a)(1) and near the end of (b).

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2016, ch. 1056, § 6. July 1, 2016.

Cross-References. Notice as to occupational disease, § 50-6-305.

Penalty for late filing of accident reports, § 50-6-118.

Workers' Compensation Appeals Board Decisions. An employee alleged a repetitive motion injury to her right hand and wrist while performing housekeeping and janitorial activities for her employer. The employer argued that because the employee was diagnosed with de Quervain's tenosynovitis on September 27 following “a few week history of right wrist and thumb pain,” and because she conducted her own “research” to determine the possible causes of her condition, she should have given written notice of her alleged work injury within fifteen days of the September 27 diagnosis. The Workers' Compensation Appeals Board disagreed. First, an employee is not required to give written notice of an alleged gradual injury until he or she “knows or reasonably should know” that he or she suffered a “work-related injury” that “resulted in permanent physical impairment.” There was no evidence the employee knew or reasonably should have known on September 27 that her condition was both “work-related” and “resulted in permanent physical impairment.” Second, there was insufficient evidence the employee was restricted from working or rendered unable to perform normal work activities until after her appointment with an orthopedic surgeon on October 26, 2017. It is undisputed she reported her alleged work-related condition to the employer no later than November 3, 2017, which was within fifteen days of the date she was restricted from working by the surgeon. Accordingly, the employer received legally sufficient notice of the employee's alleged work-related condition. Miller v. Old Folks Mission Center, Inc., 2019 TN Wrk Comp App Bd LEXIS 1.

50-6-201. Notice of injury. [Applicable to injuries occurring prior to July 1, 2014.]

1. Every injured employee or the injured employee's representative shall, immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, give or cause to be given to the employer who has no actual notice, written notice of the injury, and the employee shall not be entitled to physician's fees or to any compensation that may have accrued under this chapter, from the date of the accident to the giving of notice, unless it can be shown that the employer had actual knowledge of the accident. No compensation shall be payable under this chapter, unless the written notice is given the employer within thirty (30) days after the occurrence of the accident, unless reasonable excuse for failure to give the notice is made to the satisfaction of the tribunal to which the claim for compensation may be presented.
2. In those cases where the injuries occur as the result of gradual or cumulative events or trauma, then the injured employee or the injured employee's representative shall provide notice of the injury to the employer within thirty (30) days after the employee:
   1. Knows or reasonably should know that the employee has suffered a work-related injury that has resulted in permanent physical impairment; or
   2. Is rendered unable to continue to perform the employee's normal work activities as the result of the work-related injury and the employee knows or reasonably should know that the injury was caused by work-related activities.
3. Within thirty (30) calendar days of the notice of injury, the insurer, employer, or self-insured pool or trust shall file with the department, on a form prescribed by the department, a wage statement detailing the employee's wages for the previous fifty-two (52) weeks, unless the employer stipulates that the maximum weekly workers' compensation rate applies in the particular matter. In the event the insurer, employer, or self-insured pool or trust knowingly and intentionally fails to timely file the wage statement, a workers' compensation specialist may deem the employee's compensation rate to be the maximum workers' compensation rate effective on the date of injury. This subsection (c) shall apply only to accidents that result in death or personal injury of such a nature that the injured person either does not return to the person's employment within seven (7) days after the occurrence of the accident or has a permanent impairment resulting from the accident. If the employer, insurer or self-insured pool fails to file the wage statement within thirty (30) days and the maximum rate is imposed, then the employer, insurer or self-insured pool may file a wage statement at a later time. If the late filed wage statement reflects that the compensation rate is less than the maximum compensation rate, the employer, insurer or self-insured pool may then reduce the compensation rate.

Acts 1919, ch. 123, § 22; Shan. Supp., § 3608a171; Code 1932, § 6872; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1001; Acts 2001, ch. 219, § 1; 2006, ch. 1014, § 3.

Cross-References. Notice as to occupational disease, § 50-6-305.

Penalty for late filing of accident reports, § 50-6-118.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 530-532.

Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 29.

Law Reviews.

Mass Tort Litigation in Tennessee (Paul Campbell, III and Hugh J. Moore, Jr.), 53 Tenn. L. Rev. 221 (1986).

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

The Exclusiveness of an Employee's Workers' Compensation Remedy Against His Employer (Joseph H. King, Jr.), 55 Tenn. L. Rev. 405 (1988).