Mark Edward Warf v. Zion Christian Academy,

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. The trial judge found the plaintiff had suffered an injury arising out of his employment, but found the plaintiff was barred from recovering benefits under the Workers' Compensation Act because he failed to file timely notice of the injury which he suffered. We reverse the judgment of the trial court and remand this case thereto for further proceedings. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Reversed and Remanded JOHN K. BYERS, SR. J., in which FRANK F. DROWOTA III, C. J. and JOE C. LOSER, SP. J., joined. Richard T. Matthews, Columbia, Tennessee, attorney for the appellant, Mark Edward Warf. Luther E. Cantrell, Jr., Nashville, Tennessee, attorney for the appellees, Zion Christian Academy and Church Mutual Insurance Company. MEMORANDUM OPINION The plaintiff has a Bachelors of Science degree, was born September 13, 1959, is married and the father of three children. The plaintiff was a teacher, coach and athletic director at Zion Christian Academy (Zion). His work history is that of a teacher and coach. On March 16, 1999, a student at Zion was electrocuted. The plaintiff was the first adult to reach the student after the accident. The plaintiff gave CPR to the student, however, this was not successful and the student died in his arms. During the course of the CPR, the student regurgitated and the vomit was projected into the plaintiff's mouth and on his clothes and on the student. After the event, the plaintiff and others met with the headmaster and a member of the Board of Directors of Zion. The plaintiff was emotional and upset at the time. The school brought a counselor, a psychologist, to the academy to meet with the teacher. The plaintiff was very upset and expressed his grief at seeing the student for the last time as he lay dead in vomit. The counselor, with the headmaster, helped arrange for the plaintiff to see the student in the casket at a private viewing.1 The plaintiff testified that when school resumed a few days after the event he was unable to concentrate and perform his duties. He was admitted to the hospital on May 18, 1999 with chest pains which apparently were stress related. The plaintiff resigned from Zion at the end of the school year in May 1999. He testified his mental status was not the cause of this but was because of changes made by the headmaster. The headmaster testified the plaintiff's work performance was deficient prior to the death of the student and the retention of the plaintiff was not likely because of this. The plaintiff attempted to teach at other schools but was unable to do so because of his mental condition. Ultimately, the plaintiff began to receive medical care for his condition. The trial judge made the following finding of facts concerning the plaintiff's injury: WORK-RELATED MENTAL INJURY: The Court finds that Plaintiff has suffered a permanent mental injury, arising out of his employment, caused by an identifiable, stressful work-related event producing sudden mental stimulus of fright, shock and excessive, unexpected anxiety; to-wit: the electrocution death of a student. Further, that Plaintiff's stress is extraordinary and unusual in comparison to stress that is ordinarily expected. As a result, the Court finds that Plaintiff's vocational ability has been diminished. The trial court further found that plaintiff knew of his mental illness by November 3, 1999 and that he should have given notice to Zion within thirty days of this. The plaintiff did not give notice, written or otherwise, until July 6, 2 when he delivered a message to the headmaster concerning his mental injury. The trial judge found the plaintiff gave no reasonable excuse for failure to do so. The insurance company sent a letter to the plaintiff after he delivered the message to the head master that the plaintiff would receive no compensation because he suffered no physical injury. 1The viewing and funeral was to be closed casket. -2-