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Dixon v. Travelers Indemnity Co.

March 3, 2011

OMER LEE DIXON, JR.
v.
TRAVELERS INDEMNITY COMPANY



The opinion of the court was delivered by: Sharon G. Lee, J.

OPINION

SHARON G. LEE, J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., JANICE M. HOLDER, GARY R. WADE, and WILLIAM C. KOCH, JR., JJ., joined.

The primary issue presented in this appeal is whether an employee, who was injured when a tornado struck the tractor-trailer rig he was driving for his employer, has a compensable workers' compensation claim. The central dispute between the parties is whether the claim arose out of the employment relationship. After careful review, we conclude that the employee was injured when he was subjected to a hazard not common to the general public but peculiar to the nature of his employment and to the conditions under which his employment was required to be performed. Accordingly, the injury arose out of his employment. The trial court's judgment holding the employee's claim to be compensable and its award of benefits is affirmed.

Background

On May 9, 2007, Omer Lee Dixon ("Employee") was driving an 18–wheel truck tractor and trailer east on Interstate 40 from California to Tennessee. His employer, Ozark Motor Lines, Inc. ("Employer"), had instructed him to deliver a load of freight to its Memphis, Tennessee, terminal by 7:00 a.m. the next morning. Just before midnight on May 9, Employee was traveling through Oklahoma in heavy traffic when he encountered hard rain and wind. As the storm gathered intensity, Employee slowed his speed from sixty-five miles per hour to between thirty to forty miles per hour and decided to seek shelter from the storm by getting off the interstate. Traffic, however, was backed up at the exit ramp. Deciding it would be safer to drive to the next exit ramp rather than wait in the right lane to exit or to pull onto the emergency shoulder, he drove on in the storm.

As he continued driving slowly in the storm, he saw a billboard or exit sign next to the westbound lane of the interstate suddenly blow across the highway. Seeing this, Employee slowed his speed to ten miles per hour. As his vehicle began to vibrate and shake, he looked in his rear view mirror and saw the truck's trailer rising up off the ground. At this moment, a tornado violently struck the rig and lifted it off the ground with the trailer in a vertical position and the truck's cab facing the ground. The entire rig was hurled through the air and dropped approximately one-half mile down the roadway. The tractor turned over and landed on the driver's side in a ditch, and the trailer rolled across the roadway. After the tractor came to rest, Employee climbed out of the front of the cab where the windshield had been torn away. A passerby assisted Employee until medical help arrived and took him to a nearby hospital.

As a result of the accident, Employee had lacerations to his head, feet, shoulders, and legs, as well as an injury to the acromioclavicular ("AC") joint above his right shoulder. On May 14, 2007, after returning to his home in Trezevant, Tennessee, Employee was treated by Dr. David Pearce, an orthopaedic surgeon, who determined that Employee had suffered a complete dislocation at his AC joint. To repair Employee's shoulder injury, Dr. Pearce performed surgery, placing a screw in Employee's clavicle. While Employee was recovering from this surgery, the screw came loose and a second surgery was required to remove it. Employee declined Dr. Pearce's offer of a third surgery when the doctor could not assure Employee that it would be successful. Dr. Pearce concluded that Employee's AC joint injury was permanent and assigned Employee a permanent impairment rating of 20% to the right upper extremity and 12% to the body as a whole based upon shoulder dysfunction.

Employee did not return to work for Employer after the accident. In a letter dated August 31, 2007, Employer notified Employee of an unspecified short-term light duty position in Memphis, beginning September 10, 2007. Employee, who was still under his doctor's care and receiving physical therapy treatment, did not accept the Memphis position and asserts that he was fired from his employment.

On May 19, 2008, Employee sued Employer's workers' compensation insurer, Travelers Indemnity Company ("Travelers"), seeking benefits. Travelers filed a motion for summary judgment, arguing that Employee's injuries were not compensable because they did not arise out of his employment. The trial court denied the motion, and conducted a nonjury trial on January 6, 2010.

After considering the testimony of Employee, Employer's representative, engineering experts on behalf of each party, and the deposition of Dr. Pearce, the trial court took the case under advisement. On February 10, 2010, the trial court entered a judgment in favor of Employee, ruling that he "was subjected to a [greater] harm than the general public in the area at the same time, thus, [Employee's] injury not only was incurred in the scope of his employment, but also in the course of his employment and is compensable." The trial court concluded that Employee qualified for the maximum amount of weekly compensation for permanent partial disability in the amount of $683 per week and that he had not experienced a meaningful return to work and thus was not subject to the statutory cap.*fn1 Based upon these determinations, the trial court awarded Employee $130,944 for a 48% permanent partial disability to the body as a whole due to his right shoulder injury and assigned Travelers liability for Employee's future medical treatment for that injury.

Travelers appealed, and the case was initially referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Code Annotated section 50–6–225(e)(3) (2008). Before the Panel filed its opinion, the case was transferred for review by the full Court.

On review, we consider two issues:

1) Whether Employee's injury arose out of ...


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