Estate of Turnage v. Dole Refrigerating Co., M2019-00422-SC-R3-WC
| Decision Date | 03 January 2020 |
| Docket Number | No. M2019-00422-SC-R3-WC,M2019-00422-SC-R3-WC |
| Parties | ESTATE OF CLARENCE TURNAGE, ET AL. v. DOLE REFRIGERATING CO., INC. |
| Court | Tennessee Supreme Court |
Appeal from the Court of Workers' Compensation Claims
On August 3, 2017, Clarence Turnage ("Employee") died as a result of injuries arising out of and in the course of his employment with Dole Refrigerating Co., Inc. ("Employer"). Employee was unmarried at the time of his death, but resided with and had a child out-of-wedlock with Megan Black. It was undisputed that this child, EJT, is entitled to workers' compensation death benefits as a conclusively presumed wholly dependent child under Tennessee Code Annotated section 50-6-210(a)(2). Employee had two additional children out-of-wedlock, NRT and SMT, with another woman. However, prior to his death, Employee had surrendered his parental rights to NRT and SMT, and his mother had adopted these children. NRT and SMT sought workers' compensation death benefits as either conclusively presumed wholly dependent children of Employee under Tennessee Code Annotated section 50-6-210(a)(2), or, alternatively, as partial dependents of Employee under Tennessee Code Annotated section 50-6-210(d). The Court of Workers' Compensation Claims determined that NRT and SMT are not entitled to benefits as conclusively presumed wholly dependent children or as partial dependents. The court awarded EJT benefits equal to fifty percent (50%) of Employee's average weekly wage. The court denied the motions of the guardians ad litem for EJT and for NRT and SMT for attorney's fees and deferred any fee determination until after an appeal. NRT and SMT appealed the decision of the Court of Workers' Compensation Claims. The appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment. We award attorney's fees on appeal to the guardian ad litem for EJT and remand the case to the Court of Workers' Compensation Claims for a determination of the amount of such fees, together with a determination of what, if any, fees are to be awarded to the guardians ad litem for the prior proceedings in that court.
JEFFREY S. BIVINS, C.J., delivered the opinion of the court, in which DON ASH and ROBERT E. LEE DAVIES, Sr. JJ., joined.
R. Steven Waldron, Murfreesboro, Tennessee, for the appellants, Sarah M. T. and Noah R. T.
Richard T. Mathews and R. Holland Mathews, Columbia, Tennessee, for the appellee, Elijah J. T.
Nicholas S. Akins and Connor R. Sestak, Nashville, Tennessee, for the appellee, Dole Refrigerating Co., Inc.
OPINIONThe parties stipulated to the following facts: On August 3, 2017, Employee died from injuries arising out of and in the course of his employment with Employer. At the time of his death, Employee was unmarried but lived with and had a child out-of-wedlock, EJT, with Megan Black. Employee had two other children born out-of-wedlock, NRT and SMT, with another woman. Prior to his death, however, Employee had surrendered his parental rights to NRT and SMT and his mother had adopted them. EJT is entitled to workers' compensation death benefits as a conclusively presumed wholly dependent child of Employee under Tennessee Code Annotated section 50-6-210(a)(2).
NRT and SMT sought workers' compensation death benefits as either conclusively presumed wholly dependent children of Employee under Tennessee Code Annotated section 50-6-210(a)(2), or, alternatively, as partial dependents of Employee under Tennessee Code Annotated section 50-6-210(d).
Ms. Dean is Employee's mother. Employee died on August 3, 2017. He had two children with Michelle Jewitt: NRT, born November 11, 2003; and SMT, born July 23, 2007. Employee and Ms. Jewitt were not married. According to Ms. Dean, while residing in Florida with Ms. Jewitt, NRT, and SMT, Employee got into trouble. He leftthe children at home alone, and Ms. Jewitt did not return home. The Florida Department of Children's Services took custody of NRT and SMT. Employee went to jail for approximately six months, and NRT and SMT were placed in separate foster homes. While Employee was in jail, Ms. Dean took custody of NRT and SMT, and they came to live with her in Tennessee. A number of years later, on December 14, 2012, Ms. Dean adopted NRT and SMT. According to Ms. Dean, after Employee was released from jail, he came to Tennessee and initially lived with her daughter. He then moved in with Ms. Black, and they subsequently had a child, EJT.
Ms. Dean described Employee's relationship with NRT and SMT following their adoption as a good and close one. They resided with her Monday through Friday, and at other times, except for some weekends, holidays, and other occasions when they would reside with Employee. If Employee did not have food, NRT and SMT would spend the weekend with Ms. Dean. In addition, they would spend summers with Employee, "[a]s long as he had the food and stuff to feed them." Ms. Dean was unable to say how many days in a year the children spent with Employee.
According to Ms. Dean, Employee worked at times during this period, but went from job to job and sometimes did not work at all. Ms. Dean testified that Employee only provided her with support for NRT and SMT at income tax time. She explained that, on a couple of occasions, he provided her a small amount of money from his tax refunds after he had claimed the two children as exemptions. She testified that she did not receive any significant amount of financial support from Employee for NRT and SMT. The last time she received money from Employee for the children was in 2016 in the amount of $900. He did not provide the children with healthcare insurance. Ms. Dean received Social Security Disability, $249 per month in Social Security benefits for each child, and an additional $834 per month from the State of Florida for the two children. According to Ms. Dean, Employee did provide support for NRT and SMT when they were with him. He bought them school supplies, clothes, shoes, and other items if they needed them, if he had money.
Ms. Dean testified that an issue arose between Employee and her in the spring of 2017. They had a disagreement or misunderstanding about his returning NRT and SMT early from a weekend visit because of a school project. Ms. Dean testified that Employee yelled at her and told her, in front of the children, that he would chop off her head or stab her to death. As a result of this verbal confrontation, Employee had no interaction with NRT and SMT from approximately Easter Sunday of 2017 (April 16, 2017) through the date of his death on August 3, 2017. Ms. Dean heard from Employee on occasion about taking the children on a weekend after this, but it was only something rude by text.
Megan Black is the mother of EJT. She testified that Employee returned to Tennessee on September 29, 2012, and that they began living together on September 30, 2012. They had one child, EJT, and though they never married, they all lived together as a family. According to Ms. Black, Employee was employed intermittently and had what she described as "in between jobs." At other times, he was a stay-at-home dad. Ms. Black was employed until Employee began working for Employer six months prior to his death, at which time she became a stay-at-home mom. Ms. Black testified that she worked more than Employee did. According to Ms. Black, between 2013 and 2017, NRT and SMT spent approximately one third of the time with Employee and her. She testified that Employee bought the children lots of things and spoiled them. She also testified, however, that when the children stayed with Employee and her, they would feed them, but that, at times, money was tight and Ms. Dean would provide the food.
The brief of Appellants NRT and SMT fails to contain a statement of issues in accordance with Tennessee Rule of Appellate Procedure 27(a)(4).1 We restate those issues as follows:
For the reasons set forth below, we agree with the Court of Workers' Compensation Claims that NRT and SMT do not qualify as either conclusively presumed wholly dependent children or as partially dependent children of Employee. As a result, they are not entitled to workers' compensation death benefits. We award attorney's fees to the guardian ad litem for EJT.
Appellate review is governed by Tennessee Code Annotated section 50-6-225(a)(1)-(2) (2018 Supp.), which provides that appellate courts "[r]eview . . . the workers' compensation court's findings of fact . . . de novo upon the record of the workers' compensation court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise." As the Supreme Court has observed many times, reviewing courts must conduct an in-depth examination of the trial court's factual findings and conclusions. Wilhelm v. Krogers, 235 S.W.3d 122, 126 (Tenn. 2007). When the trial court has seen and heard the witnesses, considerable deference must be afforded the trial court's factual findings. Tryon v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008). No similar deference need be afforded the trial court's findings based upon documentary evidence such as depositions. Glisson v. Mohon Int'l, Inc./Campbell...
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