Lusk v. Consolidated Aluminum Corp.

• Citation: 655 S.W.2d 917
• Parties: Grover LUSK, Plaintiff-Appellee, v. CONSOLIDATED ALUMINUM CORPORATION, Defendant-Appellant.
• Decision Date: 08 August 1983
• Court: Tennessee Supreme Court

Page 917

655 S.W.2d 917

Grover LUSK, Plaintiff-Appellee, v. CONSOLIDATED ALUMINUM CORPORATION, Defendant-Appellant.

Supreme Court of Tennessee.

Aug. 8, 1983.

William Peeler, Waverly, for defendant-appellant.

Larry Hicks, Camden, for plaintiff-appellee.

OPINION

BROCK, Justice.

The plaintiff was awarded worker's compensation benefits by the trial court and the defendant appeals, asserting that the trial court erred in failing to sustain its plea that the one year statute of limitations had run prior to filing of the complaint. We affirm the decree of the trial court.

On January 22, 1978, while in route from the defendant's manufacturing plant to the plaintiff's parked automobile at the conclusion of his work shift, the plaintiff slipped and fell on ice in the parking lot owned and maintained by the employer for the benefit of the plaintiff and other employees. He immediately experienced severe pain due to a fracture of his hip but was able to reach his automobile and proceed to his home. Other employees of the defendant who were arriving at the defendant's plant were aware of the accident suffered by the plaintiff and reported the same to Mr. Rudy Rice, a foreman for the defendant.

In compliance with a procedure prescribed by the defendant, the plaintiff, on the day following the accident, reported to a guard at one of the gates of defendant's plant concerning the accident on the previous night and that he had suffered injuries which made it impossible for him to report for duty. The plaintiff made this report by calling a telephone number which employees were instructed to use for making such reports. According to the procedure set up by the defendant it was then the duty of the guard to report the information to the foreman of the injured employee.

Soon thereafter the plaintiff began receiving checks from the Provident Life & Accident Insurance Company in the amount of $125.00 per week which were designated as "lost time pay for a period below: ..." and designated as "code no. 31" which was explained on the back side of an attachment to the check as "disability (loss of time)." The plaintiff continued to receive these checks throughout the period of his temporary total disability, the last one being dated June 13, 1978. Moreover, several thousand dollars in medical expenses were paid to physicians and hospitals in behalf of the plaintiff by the Provident Life & Accident Insurance Company by checks made payable directly to the health facility providing care.

The plaintiff testified that he believed that these checks, both those which purported to be for "lost time" or "disability" and those paying for his medical treatment, were paid in discharge of obligations owed by the defendant employer to the plaintiff under the terms of the worker's compensation laws of Tennessee.

It is shown in the evidence that these payments were made pursuant to an "Accident and Sickness" group insurance policy purchased and maintained solely by the employer for the benefit of its hourly employees as a benefit resulting from collective bargaining between the employer and a labor organization representing the hourly employees. These benefits were paid under this policy to covered employees who suffered disability whether the disability were the result of an accident arising out of and in the course of employment or not. If the disability of the employee were one deemed not to be covered by the Worker's Compensation Act of Tennessee, the employee received one check from the Provident Life & Accident Insurance Company; but if the disability were one deemed to be covered by the worker's compensation laws of Tennessee the employee would normally receive two checks, one from the Aetna Casualty Company representing the worker's compensation benefit and a second, supplemental, check from the Provident Life & Accident Insurance Company making up the difference between the amount of the worker's compensation benefit and the benefit payable under the Provident policy.

It appears clearly from the evidence that neither the plaintiff nor his foreman, Rice, was aware of this dual system of coverage and payments. Mrs. Virginia Baker, the "insurance clerk" of the defendant testified that in case of any lost time whether due to an on-the-job injury or an injury or illness that was not work connected the same insurance forms were used, all of them being Provident Life & Accident Insurance Company forms, as were used in the instant case. Mrs. Baker further testified that on the checks which the employee would receive in the case of a disability, either work connected or not work connected, there would appear only the name of the insurance company, Provident, and the designation "Code 31," but there would be no designation...