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Damages in case of injured UPS driver overturned


A workers compensation insurer will not have to pay $100,000 in damages following a civil suit filed by a United Parcel Service driver who claims to have aggravated existing back pain while carrying a box up a set of stairs, whose comp claim he said was mishandled by his employer and its insurer, a divided appeals court in Mississippi ruled Tuesday. 

Anthony Lee Tutor claimed he injured his back on the job at a time in 2011 when he had been undergoing treatment for back pain by both his primary care physician and a chiropractor, and that because of his injury he could not work; his employer in turn denied that he had a comp claim and instead allowed him to file for short-term disability for an injury deemed to have been one not connected to work despite Mr. Tutor’s protests, according to documents in Liberty Insurance Corp. v. Anthony Lee Tutor, filed in the Court of Appeals in Mississippi in Jackson. 

He filed and received short-term disability pay, which was set to expire in early 2012. In the meantime, he continued treatment and complained of chronic back pain, stating he would not be able to go back to work, according to documents chronicling numerous doctor visits.

Just days before his disability expired he contacted an attorney to assist in filing a workers comp claim, which the insurer Liberty Insurance Co. — initially unaware of Mr. Tutor’s injury at work in 2011 — denied in letters to the driver’s attorneys, requesting more information on Mr. Tutor’s health, including records missing from his initial filing.

Following further investigation, which included examination by a physician hired by the insurer who testified that Mr. Tutor’s injury was caused by his job, Liberty accepted the workers comp claim and settled the claim for $160,000, according to documents.

Mr. Tutor in 2013 proceeded with a lawsuit in Clay County Circuit Court against Liberty and UPS who managed his case, asserting that he was entitled to extra damages, including punitive for the alleged “bad faith handling” of his work injury claim.

A jury in 2017 awarded Ms. Tutor $500,000 in damages to be paid by UPS and $100,000 in damages to be paid by Liberty, according to documents.

Only Liberty appealed, asserting in 12 separate assignments of error, including that it learned of the injury more than eight months after the fact and that it had a right under state law to investigate the claim.

The appeals court reversed the jury ruling 6-3, finding that Mr. Tutor failed to provide sufficient evidence that Liberty mishandled his claim, documenting the paper trail between that attorney for Mr. Tutor and that of the insurer, paperwork that initially failed to include documentation but only a list of 18 separate doctors who examined Mr. Tutor, among other shortcomings.

“It is interesting to note that when Liberty received that medical record, it paid Tutor's medical bills and paid him $160,000 for his disability,” a concurring judge wrote.

Three judges dissented, writing in part that the insurer “ignored its own policies and procedures” upon receiving Mr. Tutor’s claim and that the claims handler admittedly “denied Tutor's claim within 48 hours of receipt because she needed to investigate. Yet, her testimony revealed she did not investigate this matter before choosing to deny it completely. She had no evidence of a pre-existing injury, no evidence disputing Tutor's claim of a documented and verifiable work-related injury and no conflicting documentation.”








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