Important Tennessee Workers’ Compensation Decision

In addition to disability, I still handle serious workers’ compensation claims.  In Hubbard v. Sherman-Dixie Concrete Industries, Inc., the workers’ compensation panel held that the trial judge acted properly in refusing to compel a second employer evaluation (IME) because the employee had already seen several physicians.

Have you been hurt on the job in Tennessee or Georgia? Click here


Hamilton County Jury Returns $784,676.65 Verdict Against Nationwide in Fire Loss Case

Last week we concluded a 7 day jury trial with a favorable verdict. Here is a summary:

On Wednesday afternoon, November 9, 2011, a Hamilton County jury returned a $784,676.65 verdict in Circuit Court in favor of Norma O’Neal, whose Chattanooga home at 1706 Estrellita Circle went up in flames just two weeks before Christmas Day in 2009.  Hubert Hamilton and Patrick Cruise served as trial counsel for the Plaintiff.

Mrs. O’Neal had just set up her Christmas tree the night before.  It was a real tree, not artificial.  She had wrapped the tree with strings of electric lights, and adjusted and rotated her tree so it was positioned just right.  She decided to finish the rest of her decorating later.  She unplugged the lights from an extension cord plugged into the wall and went to bed.  The next morning she went in to work at Blue Cross Blue Shield, where she is employed as a nurse.   It was a normal work day until 4:00 p.m. when she got the call that her house was on fire.  She rushed home and found the fire department busy extinguishing the fire.  The fire had started in the corner of her living room where the Christmas tree had stood.  All that remained of the Christmas tree was the charred trunk with strands of lights wrapped around it.  The living room, including some irreplaceable family antiques, was destroyed.

Later that evening the fire rekindled in a wall, and broke out again causing additional damage to the upper floor of the home, and into the attic.  Initially, the cause of the fire was listed as “undetermined”.

Mrs. O’Neal had a home owners’ policy with Nationwide.  As she began to document her losses and provide records to document her claim, Nationwide was investigating the fire.  By April, her claim against Nationwide for replacement of her home and contents was denied.  Nationwide contended that the fire had been intentionally set by a family member in the vicinity of the Christmas tree.

Mrs. O’Neal was forced to file suit against Nationwide to recover her losses.  An expert fire investigator, Jeff Morrill, re-examined the fire scene on her behalf and found evidence of an electrical event occurring at a receptacle on the wall adjacent to the Christmas tree.  Investigators for the City of Chattanooga and Nationwide Insurance had missed or overlooked a melted copper plug blade in the receptacle and had also failed to realize that the circuit breaker controlling that receptacle had tripped at the time of the fire.  The Plaintiff’s fire investigator concluded that an accidental electrical event started the fire in the Christmas tree.

During the jury trial, Mr. Morrill explained to the jury that once a Christmas tree starts burning, it can be completely engulfed in flames in a matter of seconds.  High temperatures are reached very quickly and the fire can then flash over to nearby furniture and furnishings.  Within seconds the entire room can be consumed in flames.

Despite the evidence of an electrical event at the receptacle adjacent to the Christmas tree, Nationwide continued to contend that the fire was intentionally set by a member of the family.  After hearing all of the evidence, the jury concluded otherwise and returned a verdict for Mrs. O’Neal in the full amount submitted for the house, contents and additional living expenses.  In addition, the jury found that Nationwide had acted in bad faith and awarded an extra 18% as a penalty, and included pre-judgment interest of 10%.

As a result of this 2009 Christmas tree fire, Norma O’Neal and her family have been without a home for nearly two years.  The favorable jury verdict will enable her to rebuild her home and begin putting her life back together.  O’Neal v. Nationwide was tried before Judge Neal Thomas, Div. IV, Circuit Court of Hamilton County, Tennessee.

See also:

Tennessee Civil Justice Act

Tennessee passed massive tort reform earlier this year.  The act caps non-economic damages in a tort case at $750,000.00, with an exception for catastrophic injuries up to $1 million.  Punitive damages are capped at two times the compensatory damages or $500,000.00, whichever is greater.  Class actions under the TCPA are now prohibited as well.  The Act is effective October 1, 2011.  Unfortunately, the Act is going to limit the recovery of the most vulnerable individuals and probably end up shifting the costs of serious injuries to the general public in terms of public assistance, etc.  The Act was passed under the guise of “job creation.”

Residual Functional Capacity (RFC)

Residual functional capacity (RFC) is a determination of what a claimant can do despite his or her limitations.  The determination is based upon medical and non-medical evidence, and includes a determination of both severe and non-severe impairments.  The ALJ must document his/her determination in a proper manner based upon all relevant evidence.

Evaluating disability claims for Young Adults (18-25)

SSR 11-2p provides excellent guidance for evaluating claims in young adult cases.  The Ruling can be found at