Mary A. Clark v. Micropore, Inc. & Berwind Industries Management

This workers' compensation appeal has been referred to the Special Workers' 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. This complaint was filed April 17, 1995, alleging that the plaintiff had been employed at Porelon since 1974 and that in 1993 she began to develop pain in her right shoulder and arm which was evidence of a gradually developing compensable injury. Micropore, Inc. (formerly Porelon) filed its answer on June 7, 1995, alleging that it was sold on May 6, 1994 with a resulting change in workers' compensation insurers. It denied having notice of any claimed injury and affirmatively alleged that it is not liable for "any benefits due plaintiff which accrued on or after May 6, 1994." The plaintiff amended her complaint on June 21, 1995 and joined Berwind Industries Management Company as a defendant. She alleged that in 1993 and until May 1994 the manufacturing plant known as Porelon, where she worked and developed the gradual injury, was owned by Johnson Worldwide Associates, Inc. ["JWA"], which sold the plant to Berwind in May 1994. The plant continued to operate under the name of Micropore, Inc., allegedly a subsidiary of Berwind. Micropore, Inc. answered the amended complaint, acknowledging the sale of the plant by JWA to Berwind in May 1994. It again denied that, although the plaintiff was regularly employed by Porelon for 2 years and was so employed May 1994, when the change in ownership occurred, the plaintiff had developed a gradually occurring injury as alleged. It admitted that on November 3, 1993, the plaintiff reported to management that she had been diagnosed with fibromyosis, but that she did not relate that the condition was work related. Berwind answered the amended complaint on July 26, 1995, asserting that the plaintiff was last employed on March 6, 1995, and that it was not liable for benefits under the gradual occurring rule. The Chancellor ruled that the plaintiff's injuries were gradual "and manifested themselves in May 1993, but they did not progress to the point of making the plaintiff unable to work until March 3, 1995, and therefore March 3, 1995, under Tennessee 2