Janet Carter v. Phoenix Restaurant Group of Tennessee, Inc., et al.

This workers' compensation appeal has been referred to the Special W orkers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff was seriously injured in a traffic crash on September 11, 1991. She settled her tort claim and proceeded to trial of this workers' compensation case which resulted in a finding that the `special errand' exception was applicable and that as a result of the accident and injuries she was 6 percent partially, permanently disabled and thus entitled to $183.34 per week during 24 weeks, temporary total benefits during 156 weeks, and medical expenses of $83,245.91. In accordance with TENN. CODE ANN. _5-6-112(c), the defendant was credited with $1,., the amount of the tort settlement, which the plaintiff insists was only partially subrogable. Both parties appeal. The employer insists that because the traffic crash was not job-related, the plaintiff failed to prove her case. The plaintiff insists that because the employer did not recognize the compensability of her claim, and because she was not made whole by the third-party settlement, the full amount thereof should not have been subrogable. The plaintiff further insists that her attorney should have been awarded a fee "out of the third-party settlement fund." She also presents for review the issues of whether a finding of 6 percent permanent partial disability is adequate, and whether certain discretionary costs should have been allowed. I The facts are not in material dispute. The plaintiff, age 31, completed the eighth grade. She had worked in restaurants most of her adult life, and on July 1, 1991 was employed by Wendy's as an assistant manager trainee assigned to work at the North Roan location in Johnson City after a six-week stint in Kingsport. On September 1, 1991, a supervisor came to the North Roan location and announced that on the following day in Kingsport all of the North Roan employees, including the plaintiff, would be given a test which was mandatory. The plaintiff advised her supervisor that September 11 was her day off; the supervisor replied that this did not matter, "that everybody had to be there and would be paid for their time there." 2