ESTATE OF CLARENCE TURNAGE, ET AL.
v.
DOLE REFRIGERATING CO., INC.
No. M2019-00422-SC-R3-WC
Tennessee Workers Compensation
Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, Nashville
February 12, 2020
Session: September 30, 2019
Mailed
January 3, 2020
Appeal
from the Court of Workers' Compensation Claims No.
2017-05-0963 Dale A. Tipps, Judge.
On
August 3, 2017, Clarence Turnage ("Employee") died
as a result of injuries arising out of and in the course of
his employment with Dole Refrigerating Co., Inc.
("Employer"). Employee was unmarried at the time of
his death, but resided with and had a child out-of-wedlock
with Megan Black. It was undisputed that this child, EJT, is
entitled to workers' compensation death benefits as a
conclusively presumed wholly dependent child under Tennessee
Code Annotated section 50-6-210(a)(2). Employee had two
additional children out-of-wedlock, NRT and SMT, with another
woman. However, prior to his death, Employee had surrendered
his parental rights to NRT and SMT, and his mother had
adopted these children. NRT and SMT sought workers'
compensation death benefits as either conclusively presumed
wholly dependent children of Employee under Tennessee Code
Annotated section 50-6-210(a)(2), or, alternatively, as
partial dependents of Employee under Tennessee Code Annotated
section 50-6-210(d). The Court of Workers' Compensation
Claims determined that NRT and SMT are not entitled to
benefits as conclusively presumed wholly dependent children
or as partial dependents. The court awarded EJT benefits
equal to fifty percent (50%) of Employee's average weekly
wage. The court denied the motions of the guardians ad litem
for EJT and for NRT and SMT for attorney's fees and
deferred any fee determination until after an appeal. NRT and
SMT appealed the decision of the Court of Workers'
Compensation Claims. The appeal has been referred to the
Special Workers' Compensation Appeals Panel for a hearing
and a report of findings of fact and conclusions of law
pursuant to Tennessee Supreme Court Rule 51. We affirm the
judgment. We award attorney's fees on appeal to the
guardian ad litem for EJT and remand the case to the Court of
Workers' Compensation Claims for a determination of the
amount of such fees, together with a determination of what,
if any, fees are to be awarded to the guardians ad litem for
the prior proceedings in that court.
Tenn.
Code Ann. § 50-6-225(a) (2014) Appeal as of Right;
Judgment of the Court of Workers' Compensation Claims
Affirmed.
R.
Steven Waldron, Murfreesboro, Tennessee, for the appellants,
Sarah M. T. and Noah R. T.
Richard T. Mathews and R. Holland Mathews, Columbia,
Tennessee, for the appellee, Elijah J. T.
Nicholas S. Akins and Connor R. Sestak, Nashville, Tennessee,
for the appellee, Dole Refrigerating Co., Inc.
Jeffrey S. Bivins, C.J., delivered the opinion of the court,
in which Don Ash and Robert E. Lee Da vies, Sr. JJ., joined.
OPINION
JEFFREY S. BIVINS, CHIEF JUSTICE.
Factual
and Procedural Background
The
parties stipulated to the following facts: On August 3, 2017,
Employee died from injuries arising out of and in the course
of his employment with Employer. At the time of his death,
Employee was unmarried but lived with and had a child
out-of-wedlock, EJT, with Megan Black. Employee had two other
children born out-of-wedlock, NRT and SMT, with another
woman. Prior to his death, however, Employee had surrendered
his parental rights to NRT and SMT and his mother had adopted
them. EJT is entitled to workers' compensation death
benefits as a conclusively presumed wholly dependent child of
Employee under Tennessee Code Annotated section
50-6-210(a)(2).
NRT and
SMT sought workers' compensation death benefits as either
conclusively presumed wholly dependent children of Employee
under Tennessee Code Annotated section 50-6-210(a)(2), or,
alternatively, as partial dependents of Employee under
Tennessee Code Annotated section 50-6-210(d).
Testimony
of Deborah Dean
Ms.
Dean is Employee's mother. Employee died on August 3,
2017. He had two children with Michelle Jewitt: NRT, born
November 11, 2003; and SMT, born July 23, 2007. Employee and
Ms. Jewitt were not married. According to Ms. Dean, while
residing in Florida with Ms. Jewitt, NRT, and SMT, Employee
got into trouble. He left the children at home alone, and Ms.
Jewitt did not return home. The Florida Department of
Children's Services took custody of NRT and SMT. Employee
went to jail for approximately six months, and NRT and SMT
were placed in separate foster homes. While Employee was in
jail, Ms. Dean took custody of NRT and SMT, and they came to
live with her in Tennessee. A number of years later, on
December 14, 2012, Ms. Dean adopted NRT and SMT. According to
Ms. Dean, after Employee was released from jail, he came to
Tennessee and initially lived with her daughter. He then
moved in with Ms. Black, and they subsequently had a child,
EJT.
Ms.
Dean described Employee's relationship with NRT and SMT
following their adoption as a good and close one. They
resided with her Monday through Friday, and at other times,
except for some weekends, holidays, and other occasions when
they would reside with Employee. If Employee did not have
food, NRT and SMT would spend the weekend with Ms. Dean. In
addition, they would spend summers with Employee, "[a]s
long as he had the food and stuff to feed them." Ms.
Dean was unable to say how many days in a year the children
spent with Employee.
According
to Ms. Dean, Employee worked at times during this period, but
went from job to job and sometimes did not work at all. Ms.
Dean testified that Employee only provided her with support
for NRT and SMT at income tax time. She explained that, on a
couple of occasions, he provided her a small amount of money
from his tax refunds after he had claimed the two children as
exemptions. She testified that she did not receive any
significant amount of financial support from Employee for NRT
and SMT. The last time she received money from Employee for
the children was in 2016 in the amount of $900. He did not
provide the children with healthcare insurance. Ms. Dean
received...
