Opinion
No. E1999-01123-WC-R3-CV.
Filed: September 14, 2000.
Direct Appeal from the Chancery Court for Hamilton County Part II, No. 73837, Howell N. Peoples, Chancellor.
Affirmed in Part, Reversed in Part and Remanded.
Tricia I. Dennis, Chattanooga, Tennessee, for the appellant, Everett Alan Smith.
Larry L. Cash, Chattanooga, Tennessee, for the appellee, Safety-Kleen Corporation.
OPINION Discussion
The case was tried in the trial court and judgment for the plaintiff was entered on December 6, 1996. The defendant appealed from the trial court's judgment, and on January 7, 1999, the supreme court entered an order adopting the opinion of a Special Workers' Compensation Panel affirming the case. The judgment became final.
On February 15, 1999, the plaintiff filed a motion for civil contempt, or in the alternative, to amend the final judgment. The motion sought to have temporary total benefits paid by the plaintiff.
The trial judge denied the motion because the matter of temporary total disability was never raised in the original trial. We find the ruling by the trial court is correct. The attempt by the plaintiff to have the trial court declare that permanent and total disability should relate back to the date of the original injury was denied because this was not raised or litigated in the original trial. All matters as to compensability, medical expenses incurred before trial and permanent total benefits were settled by the trial of the case and were affirmed by the Supreme Court and settled by their judgment. The trial court properly dismissed the plaintiff's motions, which sought to re-litigate pretrial issues.
The plaintiff's other questions on appeal-motion for attorneys fees (Issue 2) and issues on medical bills and physicians fees (Issues 3 and 4) — appear to raise issues that arose after trial. The trial judge dismissed these matters because they were raised by motion rather than by petition. We are unable to determine the merit of these issues on the record before us. We conclude the trial court could have treated the motions as properly raising these issues and would have warranted a factual determination of whether relief thereon should have been given. We therefore reverse the judgment of the trial court on issue two, three and four as raised by the plaintiff and remand these to the trial judge for a factual determination of them on the merits.
The record indicates there may be competing claims for attorney fees in the case. If this exists, the trial court can make a determination on the right of the attorneys who are claiming a fee.
If the plaintiff here filed petitions for the relief sought subsequent to the hearing on the motions they may be joined for determination at the same time as the motions before us are determined.
The costs are taxed equally to the plaintiff and the defendant.
JUDGMENT
This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference;
Whereupon, it appears to the Court that the memorandum Opinion of the Panel should be accepted and approved; and
It is, therefore, ordered that the Panel's findings of facts and conclusions of law are adopted and affirmed and the decision of the Panel is made the Judgement of the Court.
Costs on appeal are taxed equally between the plaintiff and the defendant, for which execution may issue if necessary.
_____________________ BYERS, SR. J.
CONCUR:
_________________________ ANDERSON, C. J.
_________________________ THAYER, SP. J.