# FILED
March 26, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) PATRICIA K. REED, ) ) Plaintiff/Appella

nt. ) ) VS. ) C.A. No. 02A01-9802-CV-00032 ) ALAMO RENT-A-CAR, INC. , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Circuit Co

urt of Shelby

County at Memp

his. Honorable Kay S. Robilio, Judge

John R. Smith , BROWN, BRASHER & SMITH, Memphis, Tennessee Attorney fo

r Plaintiff/Appell

ant. Roane Waring, III , SHUTTLEWORTH, SMITH, WILL IAMS, SABBATINI &

HARPER, Memphis, Tennessee Attorney for Defendant/Appellee.

OPINION FIL

ED: AFFIRMED IN P

ART, REVERSED IN PA RT AND REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) LILLARD, J. : (Concurs)Plaintiff Patricia K. Reed appeals the trial court’s judgment dismissing her claims for retaliatory discharge and brea ch of employment contract against Defendant/Appellee Alamo R ent-A

Car, Inc. We affirm the trial court’s dismissal of Reed’s retali atory disch

arge claim, but

we reverse the court’s dismissal of Reed’s claim for breach of employment contract, and we remand for further proceedings.

I. Factual and Proced ural History

Reedworked for Alamo Rent-A-Car from June 1990 to December 1994 . During this time, Reed received good job evaluations and, on more than one occasion, was named A lamo’ s employee of the month. Reed’s most recent job evaluation indi cated t hat her performance was between “above average” and “outstanding.”

On March 13, 1993, Reed injured her knee at work when she slipped on some ice and fell. Reed’s injury caused her tomiss approximately one month of work. After returning to work in April 1993, Reed r

esumed her duties

as a rental agent supervisor. Reed continued to experience difficulty with her injure d knee, h owever, and she was required to undergo knee surgery on October 4, 1994.

At the time of her surgery, Reed requested permission to take a le ave of absence under the Family and Medical Leave Act (FMLA). See 29 U.S.C. §§ 2601--2654 (1994). Reed’s manager, Dick Snyder, initially approved Reed’s re quest to be off work from October 5, 1994, to November

20, 1994. When the request was sub m itted to Alamo’s corporate offices in Fort Lauderdale, Florida, however, Alamo’s Family Wellness Depa rtment de nied Reed’s request for FMLA leave because Reed already was on lea ve for her on-the-job injury, during which time she was receiving workers’ compensation benefits.

On Novem ber 16, 1994, Reed visited her doctor’s office for a scheduled checkup
. At that time, Dr. Robe

rt L. Bourla

nd, Jr., signed a c

ertificate authorizing Reed to be off work until December

14, 1994. Shortly after Reed’s vi sit, however, a representative of CNA Insurance Compa ny, Alamo’s workers’ compensation carrier, contacted Dr. Bourland, appare ntly to inquireabout

the possibility

of releasing Reed to return to light duty work. Dr. Bour land agreed that Reed could return to light duty work, and on November 18, 1994, he signed a release authorizing Reed’s
re turn . Dr. Bourland ’s certific ate set fort h the follo wing restri ctions: “N o prolonged standing, walking, bending or

stooping.” CNA no

tified Alamo of the

release on November 21 or 22, 1994. CNA also ceased paying workers’ compensation bene fits to Reed.

On November 22, 1994, DianeBledsoe, Reed’s supervisor at Alamo, contacted Reed by telephone and inf

ormed her that Dr

. Bourland had r

eleased her to

return to light duty work. Reed expressed confusion and

told Bledsoe that she understood she was not supposed to return to work until December 14, 1994. Bledsoe instructed Reed to contact Dr. Bourland to see if he had made a mistake in releasing Re

ed. When Reed cont

acted her docto

r’s offic e, howe ver, a staff member confirmed that Reed had been released for light duty wor k.

Bledsoe again contacted Reed on November 23, 1994. D uring this conversation, Bledsoe inf

ormed Reed that Alamo expected her to report to work at 4:00 p.m. that day. Up o n learning this information, Reed be cameupset and started crying. Just days previously , Reed had
re ceived authorization to be off work until December 14, 1994, and now, one day be for e Thanksgivi ng, Alamo was demandi ng that Reed ret

urn to work. Reed also expressed concern about her ability to drive because her injured r ight leg was the leg she used to drive her car

. Reed told Bledsoe that she needed more time to relearn how to drive, and she asked if another

Alamo employee could transport her to work.

After checking with D

ick Snyder,

Ble dsoe infor med Reed that Alamo would not provide her with transpor

tation to work. Ble

dsoe also warned Reed that, if she

did not report to work
on November 23, 1994, Alamo would assume that she was resig

ning her position.

Despite this warning, Reed did not report to work for her shift on November 23.

Instead of terminating Re ed, Dick Snyder rescheduled Reed to return to work on November

27, 1994, rather than November 23. When Reed still did not report for work, however, Snyder wrote a lett er to Reed, d ated Decembe r 1, 1994, w arning her that s he was in violation of Alamo’s policy

on job abandonment and that Snyder had no other choice but to believe that Reedhad resigned.

Reed r eceived Snyder’s letter during the first week of De cember 1994, an d sh e promptly called Snyd

er to discuss

the matter. When Reed insisted that she did not wish to resign her position but that she still was in great pain and was unabl e to drive or walk very well, Snyder instructedReed to try to get another appointment with Dr. Bourland. Snyder indic ated that he would wait until after Reed’s next appointment before he proceeded with any paperwork, took any disciplinary action, or made any dec ision.
Although Reed was not scheduled to return to the doctor until De cember 14, she rescheduled

her next appointment for December 7, 1994. At the appointment, however, Dr. Bourland was not responsive to Reed’s questions as to why he had released her for

light duty work, and he did not

provide her with a

new certificat

e authorizing her

to be off work as she had hoped. The parties disputed whether Reed contacted Snyder after her December 7 doctor’s app ointment
. On December 13, 1994, however, still having received no authorization for Reed to be o ff wo rk, Snyder completed the paperwork required by Alamo to terminate Reed’s employment.

On December 12, 1995, Reedfiled this lawsuit in which she contend

ed that Alamo haddischarged her in retaliation for filing a workers’ compensation claim. Reedfurther contended that her discharge breached

her employment contract

with Alamo, which she claimed was evidenced by a document entitle

d “My Person

al Alamo Family

Member Pact” or “

FamPact. ” Finally, Reed contended

that Alamo breached section 50-6-123 of the Tennessee Workers’ Compensation Law by failing to provide case management services to Reed. Reed’s complaint also asserted cl

aims against CNA Ins ur ance Company and Transportation Insuranc e Company, but these defendants were voluntarily dismissed from the lawsuit by an order entere d in June 1996.

After conducting a bench trial, the trial court dismissed R ee d’s complaint in its ent ire ty. The trial court dism issed Reed ’s retaliat ory discharge claim based upon th e one-yea r statute of limitations for personal injury actions. See T.C.A. § 28-3-104(a)(1) (Supp. 1990). The court dismissed Reed’s breach of contract claim based on the court’s ruling t hat FamPact did no

t constitute a part of the par

ties’ employ

ment agreemen

t.1 Weber v. Moses , 938 S.W.2d 387 (Tenn. 1996). On appeal, Reed presents the following issues for this court’s review:

I. Whethe r the Trial Court erred in ruling that [Reed] had unequivocal knowledge of a termination decision un der the authority of Weber v. Moses 1 barring that portion of [Ree d’s] case involving allegations of retaliatory discharg e. II. Whether

the Trial Court erred in rulingthat Fampact was not a contract ual agre ement by and betwe

en [Reed] a

nd [Alamo]. III. Whether

the Trial Court er

red in failing to

award damage

s to [Reed] for the violation o f Tennesse

e Code Annotated Sections [50-6-123(b)(2) and (5)], by [Alamo].

Alamo also has rai

sed the following

issues:

I. Whether

the Trial Court incorrectly ruled that [the] release language executed by Reed in the order approving her workers compen sati on settlement did not preclude this action. II. Whether

Reed failed to carry her burden of est ablishing a causal connection between her claim fo r worker compensation benefits and her termination.
II. Reed’s Claim for Retaliatory Discharge

We first address Reed’s contention that the trial court er

red in ruling tha

t her claim for retaliatory

discharge was

barred by the one-ye

ar statute of limita

tions applicable to

such claims. See Headrick v. Union Carbide Corp. , 825 S.W.2d 424 (Tenn. App. 1991); T.C.A. § 28-3-104(a)(1) (Supp. 1990). In maki

ng its ruling, the trial court relied upon our supreme court’s decision of Weberv. Mose s , 938 S.W.2d 387 (Tenn. 1996). In Weber , the court held that the one-year limitations period for a retaliatory discharge or discr iminatory practice

claim commenced when the employee received unequivocal notice that his empl

oyer had ma

de a definite

and final decisio

n to terminate him. Weber , 938 S.W.2d at 392-93. Applying this rule, the court concluded that Weber’s claims filed August 31, 1 993, were barre d because the st

atute began to run in early August 1992, when Weber was notified

of his employ

er’s decision to te

rminate his

sales manager contract, and not on August 31, 1992, when Weber’s employment actually ended. Id . at 393.At the conclusion o f trial i n the present cas e, the trial cour

t orally summa

rized its reasons for dismis sing Reed’s ret aliatory dis

charge claim:

I believe that she did -- through her oral notice on [November] the 23rd I believe that [the] decision of the company to dis charge her was abundantly clear. I

believe she understood that. I think she had nothing more than a hope of some kind of redress or a hope of some kind of grievance proced ure being put into place, which evi

dently never really completely occurr

ed. That dec ision being made, re ally communicated, the decision that I believe was made before the 23rd was certainly

communicated to

her on the 23rd

is what is controlling under Tennessee

law under this [ Weber ] v. Moses case.

We conclude that the trial court’s ruling on this issue wa s in error be cause the undisputed evidence demons trated that Alamo

had not made a fina

l decision to

terminate Reed on Nov ember

23, 1994. It is true that Reed was informed on November 23, 1994, that if she did no t report for work later th

at day, Ala

mo would assume that she had resigned her position. Moreover, other evidence presented at trial suggested that Reed believed she indeed had been terminated on that date. The testimony of Alamo’s own employees, however,made clear that Reed was not terminated until a later date in December 1994.

After Reed did not report for work on

November 23, Reed’s manager, Dick Snyder, rescheduled

her to return to work o

n November 27, 199

4. On December 1 , 1994, when Reed s till did not report for

work, Snyder wrote her a letter reiterating Ala mo’s job abandonment policy and statin g that he had no alternative but to believe that Reed had resigned her position with Alamo. Reedand Snyder discussed this letter in a telephone conversation duringthe first week of December 1994. W hen Reed complained that she was unable to drive, was in great pain, and could not understandwhy the

doctor had released her for light duty, Sny der instructed Reed to

try to sched

ule another appointment with her doctor. Specifically, Snyde r testified:

I agre ed wi th her at that time. I said try to get another appointment

and go back to your doc tor . If you

are unable to proceed, you know, as far as a work schedule, I will wa it u ntil after you have done this before I proce ed with any paperwork.

. . . . Or any disciplinary, y

ou know, action.Snyder later testified that

So that is when I suggested she go bac k to the doctor, and after that appointment --

we would hold

off any decision making u

ntil we find out if in fact she should be coming back to work.

Based on this conversation, Snyder expected Reed to contact him after her doctor’s appointment and they “would proceed from that point on.”

According to Snyder, th is was th e la st conversation he had with Reed. Reed, however, testifi ed t hat she spoke with Sn yder afte r her December

7 doctor’s appoin

tment. According to Reed, she complained that Dr. Bourland had refused to

discuss the relea

se issue with her and, to complicate matters, had placed her in a brace that extended from her hip to her ankle
. Snyder reportedly responded by stating that “well, we’ll see what happens .” I n any event, it was undisputed that Snyder completed the necessary paperwork to terminate Reed on December 13, 1994.
Contrary

to the trial court’s ruling, we c onc lude that Reed could not have received unequivocal notice of Alamo’s termination decision on November 23, 1994, because on that date,
no decision had been made to terminate Reed. The undisputed evidence showed that, after that date, Snyder rescheduled

Reed’s return to work and informed her that he would not make any termination decision or initiate any

disciplinary

action until a

fter she returned to the doctor’s office on December

7. The evid ence also showed that Snyder d

id not actually

terminate Reed un

til December

13, 1994, and that Reeddid not receive notice of her termination until sometime after that date. This evidence was consistent with Reed’s own testimony that, during their telephone conversationin early December 1994, Snyde r assured her that she

had not been terminated. Under these circumstances, we conclude that the trial court erred in ruling that the one-y ear statute of limitations had run by the time Reed filed this lawsuit on December 12, 1995.

In ruling on this issue, the trial court noted that Snyder, who no longer worked for Alamo, was “very hostile toward the company.” The court also indicated that it was not influenced2 On appeal, Alamo relied on Reed’s testimony at a prior unemploy ment compensation hearing to support its contention that Reed was terminated by Alamo on November 23, 1994. At the February 1995 hearing, Reed testified to her be lief that she was terminated by Alamo on November 23, 1994. We agree that principles of judicial estoppel may prec lude a party from contradicting sworn testimony given in a prior judicial proceeding or from maintaining inconsistent legal positions in judicial proceedings. See Allen v. Neal , 396 S.W.2d 344, 346-47 (Tenn. 1965); Stearns Coal & Lumber Co. v. Jamestown R.R. Co. , 208 S.W. 334, 334-35 (Tenn. 1919); Butler v. Butler , No. 02A01-9702-CH-00038, 1997 WL 576533, at *4 (Tenn. App. Sept. 18, 1997) ; but see Mangrum v. Wal-Mart Stores, Inc. , 950 S.W.2d 33, 37 (Tenn. App. 1997) (holding that T.C.A. § 50-7-304(k) precludes application of collateral estoppel principles in workers’ compensation proceedings). We note, however, that Sny der, who represented Alamo at the unemployment compensation hearing, maintained thr oughout the hearing that Reed was terminated on December 13, 1994, and not on November 23, 1994. Moreover, we no

te that it was Alamo

which injected the

statute of limitatio

ns defense into thi

s lawsuit and which first attempted to maintain a position inconsistent with the one it assumed at the unempl oyment compen sation hear ing. by Snyder’s te

stimony that hi

s December 1 lett

er to Reed “wasn ’t a lette r of t erminatio

n.” We recogni ze that the trial cour

t is in the best

position to judge th

e credibility

of the witnesses a

nd that, when the court resolves a conflict in testimony in favor of a party , such a determinationis “binding
on the appellate court unless from other real evidence the ap

pellate court is c

ompelled to

conclude to the contrary.” Hudson v. Capps , 651 S.W.2d 243, 246 (Tenn. App. 1983).

In the present case, however, the evidence really was not disputed. A lamo’ s own witness, Bobbie Bonavia, testified that Bledsoe and Snyder “extended [the] time that [Reed] could
come back to work.” In fact, toward the trial’s conclusion, even Alamo’s attorney agreed that Reed hadbeen granted an exte

nsion to return to wo

rk during her te

lephone convers

ation with Snyder in early December 1994. The u ndisp uted evidence, therefore, showed that Reed was not terminated
on November 23, 1994, that she instead was given an extension to attempt to resolve the confusion over her doctor’s conflicting reports, and that she later was terminated on December 13, 1994. 2

We are aware tha

t the evidence was disputed as to whether Snyder talked to Reed after her December 7 doctor’s appointment. Reed testified that, when she contacted Snyder after her December

7 appointment, Snyder merely stated that “well, we ’ll see what happens.” Snyder, on the other hand, testified that he did not talk to Reed between December 7 and December 13, when he completedthe paperwork to terminate Reed. Based on Snyder’s testimony, Al

amo could

have made the alternative argument that Reed should have had notice of her imminent term ination after

her doctor’s appointment on December 7.Nevertheless, we decline to affirm

the trial court’s ruling on this ground. At trial and on appeal, Alamo consistently has maintained that the

one-year limitations period b

egan to run on November

23, 1994, and that the limitations period was triggered by the communications which took place between Bledsoe and Reed on that day. Alamo has not argued that

the limitations peri

od could have b egun to ru n on any othe r date. Inas

much as the trial c

ourt apparently

was not asked to consider the later date of December 7, the court did not resolve the confl ict between Ree d’s and Snyder’s testimony as to what, if any, conversation transpire d between Dece mber 7 an d December 13.

Because

the statute of limitations was an affirmative defense, Alamo had the burden of proving that the statute had run by the time Reed filed this lawsuit on December 12, 1995. Carr v. Borchers , 815 S.W.2d 528, 532 (Tenn. App. 1991); Jones v. Hamilton County , 405 S.W.2d 775, 779 (Tenn. App. 1965). Based on t he undispu ted evidence which was presented in this case, we conclude that Alamo failed to meet this burden. Even if Reed sub jec tiv ely believed on November

23, 1994, that she ha

d been terminate

d, the testimony

of Alamo’s own e mployees indicatedthat Reed was given an e xt ension to return to work and that a final decision on Reed’s termination was postponeduntil afte r her Dec ember 7, 1 994, docto

r’s appoi ntment. We

believe that these facts distinguish

the information co

nveyed to Re

ed on November 23 , 1994, from th e termination decision conveyed to Weber in Weber v. Moses
.

Although we conclude that Alamo failed to meet its

burden of proving that the oneyear statute of limitatio

ns had run when Ree

d filed this lawsuit,

we neverth

eless affirm the trial court’s dismissal of Ree d’s wrongful discharge claim. In order to establish a ca use of action for discharge in retaliation for asserting a workers’ compe

nsation claim,

a plaintiff must plead and prove the following ele

ments:
(1) The plaintiff was an employee of the defendant at the time of the inj ury; (2) the plaintiff made a c laim against the d

efendant for wo

rkers’ compensation ben

efits; (3) the defendant terminated the plaintiff’s employment; and (4) the claim for workers’ c ompen sation benefits wa s asubstantial factor in the [defendant’s] motivation to termina te the [plaintiff’s] em

ployment.
Anderson v. Standard Register Co. , 857 S.W.2d 555, 558 (Tenn. 1993).

In the present case, Reed was able to show that she was an employee of Alamo at the time of her injury, that she made a claim against Alamo for worke rs’ compensation benefits, and that Alamo t hereafter

terminated her employment; however, Reed was unable to establish the final element of her retaliatory dischar ge claim, that o

f causation. This c

ourt has held that,

in order to establish the element of

causation, the pla

intiff must presen

t some proof other

than merely

the facts showing her employment, her exercise of rights under the Workers’ Compensation Law, and her subsequent

discharge. Thomason v. Better -Bilt Aluminum Prods., Inc. , 831 S.W.2d 291, 293 (Tenn. App. 1992). The plaintiff may accomplish this goal either by presenting direct evidence of the necessary causal link or by introducing compelling circumstantial evidence of such a link. Id
.

Various courts have considered what type of circumstantial evidence w ill support the necessary causal link. For example, a plaintiff cannot estab lish causation by testifying that she cannot think of any

other reason for her discharge. Vaughan v. Harvar d Indus., Inc. , 926 F. Supp. 1340, 1350 (W.D. Tenn. 1996). The plaintiff’s subje ctive beliefs or s

peculations are

insufficient to create the requisite causal relationship. Id . (citing Chappell v. GTE Prods. Corp. , 803 F.2d 261, 268 (6th Cir. 1986) (indicating that mere personal beliefs, conjecture, and speculation were insufficient to support inference of age discrimination), cert. denied , 480 U.S. 919 (1987)).

Moreover, a plaintiff may not prevail on a wrongful dischar ge claim merely by showing that a

causal connection exists between her on-the-job injury and her subsequent discharge
. Vaughan v. Harvard Indus. , 926 F. Supp. at 1351. I nstead, the plaint

iff must show that he

r claim for workers’ compensation benefits, as opposed to her injury, was the true or substantial reason for her discharge. Id .; see also Anderson v. Standard Register Co. , 857 S.W.2d 555, 559 (Tenn. 1993) (holding that plaintiff fa

iled to establish ca

usal relationship

where she testified that she had “been outso lon g” that

her employer “didn’t have the time to wait”). And, absent evidence of a discriminatory

motive, a plaintiff may not satisfy the causation requirement merely by showing thather

employer required her to return to work over her objec t ion that she was medically unable to work. Harris v. American Red Cr oss , 752 F. Supp. 737, 740 (W.D. Tex. 1990).

When asked by her attorney why she believed

she was terminated by Alamo, Reed gave the fol low ing t est imo ny:

A I believe in my

heart, because to me my

dream was to retire with Alamo, that had I not ha d the surgery and filed worker

s’ comp I would still be employed there, and I wish I was.

Add iti ona lly, when questioned on cross-examination as to why she believed she was terminated for fil ing a wor kers ’ com pen sat ion cla im, Ree d gav e th e fol low ing t est imo ny:

Q Now, Ms. Reed, in finishing up here, nobody --never heard anybody from Alamo tell you that the reason you were terminatedwas because you filed a workers’ comp

ensation claim, is that true? A They didn’t word it that way, no. Q And you don’t

have any evidence or reason to believe that you were te

rminated becaus

e you filed a workers’ compensation claim other than the fact that y

ou filed a worker

s’ compensation c

laim and you were terminated after that, do y ou? A I belie ve, aga in, l ike I re peat m yself, I believ e in my heart had I not had the surgery or filed workers’ comp and had stayed on withAlamo working with my leg the shape it was in, had not had the surger y, I would still be employed there, and I believe that, and I’ll die by that. Q Okay. But

my question

is do you have

any reaso

n to believe that your

termination is

related to this workers’ compensation claim other than the fac t that they chronologically follow one another?

. . . . A In answer to your question, for a doct or, a c ompany doctor to tell me one thing on one day, two days later renege on that because he was instructed by my employ

er at which point they used that to tell

me -- to start all of this, I can’t help but feel that that is a major reason, and I

believe that the doctor’s a g ood example of it when they tell m

e one thing and just

because the com

pany instruc

ts the CNA to cal l him, him seeing me two days prior and knew the shape I was in, and then two days later all of a sudden he’s going to tell the company, yeah, I’ll let her come back to work.In our view, the foregoing contentions by Reed

were too speculative to establish the required causation eleme

nt of a retaliator

y discharg

e claim. For the m

ost par t, Reed’s testimony merely expressed her subjective belief that she would not have been fired had she not had knee surgery or filed a workers’ compensation claim. Reed’s subjective beliefs and spe culations were insufficient

to create the requisite causal relationship of her claim for wrongful discharg e. Add iti ona lly, Reed’s testimony failed to establish that it was her claim for workers’ compensation benefits, as o ppo sed to h er on -th e-j ob i nju ry, which motivated Alamo to terminate her employment.

To support her belie

f that Alamo

terminated her because she had surgery and because she filed a workers’ compensation claim, Reed additionally testified that Alamo had instructed

CNA to contact Dr. Bourland an

d that this contact resulte

d in Dr. Bourland

releasing Ree

d for light duty work. We conclude, however, that thi s circumstantial e

vidence was not su

fficiently compelling to support the inference that Reed was terminated for filing a workers’ compensat ion claim. App aren tly, it is not uncommon for an empl oyer to co ntact a doctor who is treating an on-the-job inj ury, and we know of no prohibitionagainst an employer questioning a doctor as to an employ ee’s progress or availability for work. See Harris v. American Red Cross , 752 F. Supp. 737, 738 (W.D. Tex. 1990) (wherein

plaintiff was instructed to report to work after employer’s chief medic al officer
re viewed rep orts of various treating doctors and concluded that plaintiff was medically a ble to work);
see also Brown v. Southwestern Bell Tel. Co. , 901 F. 2d 1250 , 1253 (5th Cir. 1990 ) (wherein employer’smedical advisor a sked plaintiff’s d

octor to reconsid

er his assessme

nt of pl aintiff’s disability in light of plaintiff’s job duties as maintenanceadministrator and, unsatisfied with doctor’s response, then sought second opinion from another neurologist); but see Texas Steel Co. v. Douglas , 533 S.W.2d 111, 117 (Tex. Civ. App. 1976) (wherein defendant’s superintendent, after learning that plaintiff had reported

on-the-job injury

, went out of his way

to get doctor tre

ating plaintiff t

o release him for light duty work even

though doctor had advised that plaintiff could not lift more than eight pounds or stoop more than once per hour). Without more, this evidence was insufficient to support Reed’s claim for retaliatory discharge.3 The statute of limit ations for Reed’s

claim for breac

h of employme

nt contract was si

x years. See Stone v. Halsell , 648 S.W.2d 949, 952 (Tenn. App. 1982); T.C.A. § 28-3-109(a)(3) (1980). III. Reed’s Breach of Contract Claim

We agree, however, with Reed’s contention that the trial court erred in dismissing her claim for breach o f contract a gainst Alamo. In her complaint, Reed contended that Alamo’s termination of her employment violated the provisions of “FamPact,” a document which was signed by the parties in September 1993 and which purported to govern the parties ’ employment relationship. Acco rdi ngly, this appeal requires us to consider whether FamPact constituted part of the employme

nt contract betwe

en the parties. 3

This court considered a similar issue i n Ro se v. Tipton County Public Works Department , 953 S.W.2d 690 (Tenn. App. 1997). In Rose , we explained that

this Court has recognized that an employee handbook can become a part of an employment contract. Smith v. Morris , 778 S.W.2d 857, 858 (Tenn. App. 1988) (cit ing Hamby v. Genesco, Inc. , 627 S.W.2d 373 (Tenn. App. 1981)); accord Davis v. Connecticut Gen. Lif e Ins. Co. , 743 F. Supp. 1273, 1278 (M.D. Tenn. 1990). In ord er to constitute a contract, however, the ha ndbook must contain specific language showing the employer’s intent to be bound by the handbook’s provisions. Smith v. Morris , 778 S.W.2d at 858. Unle ss an emp loye e handbook contains such guarantees or binding commitments,the handbook will not constitute an employment contract. Whittaker v. Care-More, Inc. , 621 S.W.2d 395, 397 (Tenn. App. 1981).

Rose , 953 S.W.2d at 692.

In the present case

, the trial court a

pparently d

ismisse d Reed ’s breach of contract claim based upon the fo llowing reas oning:

I don’t believe that this FAMPACT is anything other than a very tou chy, feely, wildly drawn document by someattorney to engender loya lty, which is what, natu rally , a company would want of it’s employeesbut I don’t believe that it in any way made Ms. Reed anything other than an at-will employe e.We respectfully disagree. Contrary to the trial court’s ruling, theFamPact document executedby Reed and Alamo was not just a loosely-draw n document having no binding legal e ffect. Rather, the document contained specifi c languag e showing Alamo’s intent to be bound by FamPact’s provisions. This intent was unequivocally demonstrated by the following language which appeared near the begin

ning of the docum

ent:
NOW, THEREFORE, Alamo and I ag ree tomy employment withthe co mpany, all on the terms and conditions set for

th in this FamPact documen

t: 1. FAMPACT. “FamPact” mea ns Family Me

mber Pact. It i

s my personal agreement of employ ment with Alamo.
This intent was supported further by the document’s concluding langua ge:
Alamo has written this FamPact, and promises and agrees to:

- abide by all

its terms and condit

ions;

- provide me competitive pay and benefits, including the benefits of F

amPact. Alamo and I acknowledge and unders tan d the special rel

ationship created between us by this FamPact. It is our ent ire agree ment of employment.

Alamo’s employing

me under the terms and conditions of this FamPact, and

my working

under its t

erms an d conditions, support this agreement.

We believe that this case is controlled by the court’s decision in Hamby v. Genesco, Inc. , 627 S.W.2d 373 (Tenn. App. 1981). In Hamby , the employer, Genesco, had furnished to each employee a handbook which provided that, as long as the employment relationship continued, the handbook “shall be The Guarantee

d Policies, Practices and Procedures of [Genesco].” Hamby , 627 S.W.2d at 376. Based on t his language,

this court held that the handbook was a part of the contract of employment between Genesco and its employ ees. Id
.

We similarly conclude that Fa mPact was a part of the contract of employment betweenAlamo andReed. As the quoted provisions reveal, FamPact itself indicated that it was the parties’ “entire agreement of employme

nt.” Moreover, in

executing FamPa

ct, Alamo specifi

callypromised and agreed to “abide by all its terms and conditions.” If any thing, this language evidences
an even st

ronger intent to be bound by the document’s provisions than the language found in the Genesco handbook.

On appeal, Alamo points out that paragraph 24 of FamPact

specifically

reserved to Alamo the right to peri

odically re

vise FamPact’s pr

ovisions. In som

e of its decisions, this court has cited Claiborne v. Frito-Lay, Inc. , 718 F. Supp. 1319, 1321 (E.D. Tenn. 1989), for the proposition that an em plo yer’s res erva tio n of a un ila ter al r ight to m odi fy the pro visions of its employee handbook generally precludes

the handbook

from being considered part of the parties’ employment contract. See Rose v. Tipton County Pub. W orks Dep’t , 953 S.W.2d 690, 693-94 (Tenn. App. 1997); Adcox v. SCT Prods. , No. 01A01-9703 -CV -00123, 1997 WL 638275, at *4 (Tenn. App. Oct. 17, 1997); Williams v. Memphis Hous. Auth. , No. 02A01-9608-CV-00190, 1997 WL 287645, at *3 (Tenn. App. June 2, 1997). While we continue to adhere to this proposition, we do not believe that it applies in cases

such as this where the empl oyer also has included within its handbook unequivocal lang

uage demonstra

ting its intent to be

bound by the h

andbook’s provisi

ons.

In Adcox v. SCT Products , No. 01A01-9703-CV-00123, 1997 WL 638275, at *4 (Tenn. App. Oct. 17, 1997), we observed that we could “conceive of no clearer way for anemployer to express its intent not to be bound by an employee handbook’s provisions than the employ er’s specific statement that

the handbook is not a contract or that the handbook should not be construed
as a contract.” Conversely, we can conceive of no clearer way for an employer to e xpress its intent to be bound by a handbook’s provisionsthan the employer’s specific statement that the document represents

the parties “entire agreement of employment” a nd that the employer “promises and agrees to abide by all its terms and conditions.” Accordingly , w e conclude that the

trial court erre

d in dismissing Reed’s claim for breach of contract based on the court’s ruling that FamPact wa s not a contract.

As with Reed’s retaliatory discharge claim, we have c onsidered whe ther th e trial court’s judgment dismissing Reed’s breach of contract claim can be affirmed on ev identiary gro unds. Aftercareful ly reviewing the evidence presented at trial, howe ver, we decline to affirm the trial court’s judgment on this alternate ground because the record contains evidence from which the trialcourt

could have found that

Alamo breached

the provisions of FamPact when it terminated Reed’s employment.
Upon Reed’s successful completion of her probationary-at-will period, Fa mPact entitled her to remain

employed for

a one-year term, which would be renewed a nnually, unless Reed volu ntari ly

quit her job or was discharged due to a violation of an official Alamo policy, substandardjob performance, or a decline in the company’s revenues or earnings. At trial, Alamo took the position that Reed voluntarily quit her job pursuant to provision 5(a) of FamPact, which stated that an employee

could quit her job by, inter alia , “engaging in conduct that [made] it apparent that [she was] quitting , such as [ her] unexplained failure to report to work.” To counter this position, Reedpresented evidence from which the fact-finder could have found that Reed’s failure to report to work was not unexplained. Specifically, Reed presented evidence that she was physically unable to report to work due to continued swelling, p ain, and weakness in her right leg and that she communicatedthis fact to both Snyder and Bledsoe. Moreover, the undisputed evidence showed that, during her conversations with Snyder and Bledsoe, Ree

d consistently

maintained that she had no intention of resigning her position.

Ba sed on the foregoing evidence, we conclude that the record reve als a genuine dispute as to whether

Alamo’s discharge of Reed violated FamPact’s provisions and that this issue should be resolved

by the trier of fact. Inasmuch as t he trial court mad

e no findings with

regard to this issue, we reverse the trial court’s dismissal of Reed’s breach of contract claim and remand for a new trial on this claim.

IV. Reed’s Statut ory Claim

In addition to her claims for wrongful discharge and bre ach of c ontract, Reed al

so sought to recover damagesfrom Alamo for its alleged violation of section 50-6-123 of the Tennessee Workers’ Compensa

tion Law. That

section containe

d the following pr

ovisions:
(a) No later than January 1, 1993, the commissioner [of labor] shall establish, pursuant to t he commissioner’s rule and regulation-makingauthority, a syst em of case management forcoordinating the medical care serv ic es provided to employees claiming benefits under this chapter. (b) All cases anticipated to reach an expenditure thresho l d or other appropriate po int established by the commissioner shall be subject to case manage

ment. Such case ma

nagement sh

all include, but not be limited to: (1) Developing a treatment plan to provide appropriate medical care services to an injured or disabled employee; (2) Systematica

lly monitoring the treatment rendered and the medical progress of the injured or disabled employee; (3) Assessing whether alternate medical care services are appr o priate

and delivered in a cost-effective manner based on acceptable med

ical standards; (4) Ensuring that the injured or disabled e mployee is following the prescribed medical care plan; and (5) Formulating a

plan for return to work with due regard for the emp loye e’s reco very a nd r est ric tio ns a nd l imi tat ion s, i f any. (c) The commissioner may contract with

an independent organization, no t owned by or affiliated with any car rier authorized to write workers’ compensation insurance in the state of

Tennessee, to assist with the administration of the provisions of this section. (d) Nothing in this se cti on shall prevent an employer from establishing its own program of case management that meets the guidelines promulgated by the commissioner in rules and regulation

s.

T.C.A. § 50-6-123 (Supp. 1 992). Reed conte nds that Alamo

violated these provisions by failing to systematica

lly monitor Reed’s treatment andmedical progress and by failing to formulate a plan f or Reed’s return to work with due regard for her recovery and her restrictions and limitations.

Our supreme court recently addressed the issue of when the provisions of a sta

tute create a private right of action for the statute’s violation. In Premium Finance Co rp. v. C rump Insurance Services , 978 S.W.2d 91 (Tenn. 1998), the court explained:

Where a right of action is dependent upon the provisions of a statute, our cour

ts are not privileg

ed to create

such a right under the guise of liberal interpretation of the statute. Hogan v. McDaniel , 204 Tenn. 235, 239, 319 S.W.2d 221, 223 (Tenn. 1958). Only the legislaturehas authority

to create legal rights and interests. Thus, the burden of establishing the existence of a statutory right of action lies withthe plaintiff. Ergon, Inc. v. Amoco Oil Co. , 966 F. Supp. 577, 585 (W.D. Tenn. 1997). In determining whether

the legislature inte

nded to grant a4 Under the commissi oner’s rules and

regulations, the

duty of an e

mployer or i

nsurer to provide case management services arises only if ( a) the employee requires inpatient hospitalization, (b) the employee’s injury results in medical costs exceeding $10,000, or (c) the employee’ s lost work time due t o the injury r

eaches a cumula

tive total of eigh

t weeks of full-tim

e employment. Tenn. Comp. R. & Regs. 0800-2-7-.03(1) (as revised in Feb. 1998)
.

5 Specifically, the rules and regulations impose this duty ( 1) on the insurer, where the employer is insured by a third party , and (2) on the employer, where the employ er is self-insured. See Tenn. Comp. R. & Regs. 0800-2-7-.02(1)(a) (as revised in Feb. 1998).

statutory right of

action, we beg

in by examining the language of the statute. If no cause of action is expressly gra nted therein, then we must determine whether such action was intended by the legislature andthus is implied in the statute. To do this, we consider whether the person asserting the cause of action is within the pro tec tion of the statute and is an intended beneficiary. Carter v. Redmond , 142 Tenn. 258, 263, 218 S.W. 217, 218 (1920); Chattanooga Ry. & Lt. Co. v. Bettis , 139 Te nn. 332, 337, 202 S.W. 70, 71 (1918). The statute’s structure and legi slat ive history a re helpful in makin

g this determination.
Premium Fin. Corp. , 978 S.W.2d at 93.

Contrary to Reed’s argument, we

conclude that section 50-6-123 did not give her a private right of

action against A

lamo for neglig

ent case management. We acknowledge that Reed andother workers’ compensation cl aimants a re among the intended beneficiaries of section 50-6-123's provisions. The pr imary duty

set forth in sectio

n 50-6-123, however, appears to be imposed on the commissioner of labor rather than on employers. To that end, the statute directs the commissioner

to establish a system of case management for coordinating the medical care services providedto workers’ compensation claimants in cases meeting certain criteria. 4 Although certa in responsibilities for case management ultimately may fall on empl oyers, 5 we do not perceive the primary inte

nt of section 50-6- 123 to be to impose on employers t

he duty of c

ase manageme

nt.
Moreover, we note that the language of section 50-6-123

does not expressly

grant a
cause of action to an employee against an employ er who fails to perform its case management duties in accordance with the guidelines promulgated by the commissioner, andwe likewise can discern
no implied grant of a cause of action in the statute. Viewed in its entirety, the Worker s ’ Compensation Law provides for governmental enforcement of

its provisions. Section 50-6-118, for example, requires the division of workers’ compensation of the department of

labor to establish and collect penalties for certain violations of the Law, such as an employer’s failure to provide coverage,6 See Tenn. Comp. R. & Regs. 0800-2-7-.01 to -.07 (as revised in Feb. 1998).
7 But see Clanton v. Cain-Sloan Co. , 677 S.W.2d 441, 445 (Tenn. 1984) (holding that creation of common-law cause of action for retaliatory discharge, although not explicitly created by Tennesse

e Workers’ Compen

sation Law, wa

s necessary

to enforce emplo

yer’s duty to compensate employees for work-related injuries, to secure employee’s rights to receive such compensation, and to carry out legislature’s intention in enacting L aw). the lat e fi ling of notices, r eports, and judg

ments, the late pa

yment of ben

efits, and the bad

faith denial of claims. T.C.A. § 50-6-118 (1991). The legislature could have authorized the establishment andcollection of

penalties for an employer’s or insurer’s failure to comply with the commissioner’s case managem

ent rules and reg

ulations, 6 butat this juncture it h as not done so. We de

cline to use the judicial process

to engraft add

itional requireme

nts ontothe enforcement scheme designed by the legislature. 7

V. Alamo’s Release Defense

As for the final issue r aised in this appeal, we reject Alamo’s contention that the present action was precluded by the release previously executed by Reed in con nection with her workers’ compensation action. In settling he r workers’ comp

ensation claim, Re

ed agreed to di

smiss, discharge, and relieve Alamo “from any and all further liability . . . for the injury resulting fr om the on-the-job accident of March 13, 1993.” Attempting to characterize this language a s a “general release,” Alamo contends that the release barred Reed’s current action against it. Al ternativ ely, Alamo contends that

Reed’s present c

laims were expres sly barred by the terms

of the release b

ecause the claims resulted from Reed’s on-the-job accident.

As an initial matt

er, we quest

ion whether Alamo waived the defense of release by failing to raise

it in a timely ma

nner. A litigant w

aives an affirma

tive defense

if he fails to raise it in his answer. Steed Real ty v. Oveisi , 823 S.W.2d 195, 197 (T enn. App. 1991); Thompson, Breeding, Dunn, Creswell & Sparks v. Bowlin , 765 S.W.2d 743, 744 (T enn. App. 1987); T.R.C.P. 8.03, 12.08. In its answer, Alamo did not raise the affirmative defense of release , and Alamo did not
move to amend its answer to assert this defense until shortly before the trial began in July 1997. The trial court apparentl

y granted Alamo’ s motion, but the cour t did not enter its orde

r permitting Ala

mo8 As a general rule, a trial court loses jurisdiction to enter orders in a case after one of the parties files a notice of appeal. McCormick v. Phillips , 204 S.W. 636, 636-37 (Tenn. 1918); Sweetwater Bank & Trust Co . v. Howard, 66 S.W.2d 225, 228 (T enn. App. 1932); Osborne v. Turner , 1991 WL 26720, a t *2 (Tenn. App. Ma

r. 5, 1991); but see T.R.C.P. 54.04(2) (providing that trial court retains jurisdiction over motion for discretionary costs even though party has filed notice of appeal); T.R.C.P. 59.01 (listing authorized motions which will extend trial court’s jurisdiction). In the present case, however, the trial court’s order merely conformed to her pretrial ruling on this issue. See Zack Cheek Builders, Inc. v. McLeod , 597 S.W.2d 888 (Tenn. 1980). to amend its answer

until after Reed f

iled her notice of

this appeal. 8

We recognize that the trial court has the discretion to allow a

defendant to ame

nd his
answer to assert an af

f irmative defense

, even if such a mo

tion is not made until t

he time of trial. Steed Realty , 823 S.W.2d at 197. The primary factor to be considered by the trial court in making this determination is w

hether the plaint

iff will be unduly pre

judiced by th

e defendant’s d

elay in raising the affirmative defense. Gardiner v. Word , 731 S.W.2d 889, 89 1-92 (Tenn. 1987); Garthright

v. First Tennessee Bank , 728 S.W.2d 7, 9 (Tenn. App. 1986). In the present case, we
are unable to determi

ne why the tr

ial court entere

d its order gran

ting Alamo’s motio

n to amendits
answer to assert the affirmative d efens e of release, inasmuch as the court’s comments at trial suggested that it found Reed was prejudiced by the manner in which Alamo raised this defense.
Nevertheless,

we need not

decide whether Alamo waived this defense, or whether the trial court abused its discretion in permitting Alamo to amend its answer to assert this defen se , because we conclude that the release, by its terms, did not preclude Reed from pursuing claims for
r etaliatory

discharge and

breach of employ

ment contract ag

ainst Alamo. Our su

preme court h

a s explained that

the scope and extent of a release depends on the intent of the parties as e x pressed in the inst

rument. A gener

al release cove

rs all claims betwee n the parties which ar e in existence and w

ithin their con templation; a release confined to particular matters or ca use s operates to rele

ase only such claims as fa

irly come wi

thin the terms of the release. Glover v. Southern Bell Telephone & Telegraph Co. et al. , 229 Ga. 874, 195 [S.E.2d] 11 [(1972)]; 76 C.J.S. Release § 51, p. 695; 66 Am. Jur. 2d, Release , Section 29, p. 706.

. . . . “A release which is confined or which is construed as being confined to

claims or demands arising from, or relating to, a specified ma tter operates to r

elease allthe particular clai ms or demand s properly e

mbraced in the specifications,

but it does not rele

ase other claims or demands, . . .” 76 C.J.S. Release § 51, p. 696.

Cross v. Earls , 517 S.W.2d 751, 752-53 (Tenn. 1974).

In light of the foregoing authority, we disagree with Alamo’s characterization of the release in the present case as being a “general release.” Rather than generally pur porti ng to settle all claims between the parties, the release specifically sought to settle only Reed’s c laims “for the injury resulting from the on-the-job accident of March 13, 1993.” The order in which this release language appeared was entitled Order Approving Lump Sum Settlementof Worker’s Compensation Benefits. The order indicated that the parties wished“to settle and compromise this matter on the basis of payment

to [Reed] of

permanent parti

al disability

benefits of 30% to

the leg, which a

mounts to the payment of $275.75 per week for a p eriod of 60 weeks , in the total uncommuted amount of $16,545.00.” In our view, the plain meaning of the release

language that followed was that Reed was
re lieving Alamo from any further liability for the leg injury she sustained on March 1 3, 1993
. Contrary to Alamo’s content

ion, this language did

not relieve Alamo of further liability for any and all claims arising out of the parties’ employment relationship.

Our interpretation of the release’ s la nguage is supported by decisions from other jurisdictions which have narrowly construed release provisions purporting to relieve an employer of further liability for injuries from on-the-job accidents. In Pope v. Bethesda He alth Center, Inc. , 813 F.2d 1306, 1307 (4th C ir. 1987), for example, Pope released and discharged her former employer “from all other claims of whatsoever kind which might or could hereafter arise under the Workmen’s Com pen sat ion Law f rom the sai d in jur y, dis ablement or disability.” In rejecting the employer’scontention that this release langu

age barred Po

p e’s subsequent claim for wrongful discharge, the court explained:

W e think that the lang

uage of this rel

ease, examined in

it s ent ire ty, is clear and

unambiguous.It releases and forever discharges Pope’s present or futur

e claims arising under the compensation st atute “from the said injury, disablement or disability.” Application of the release thus depends upon f

ulfillment of

two conditions: first, the claim must “arise” under the Marylan d Work men’s Compensation Law, and, second, the c laim must be “from the sai d in jur y,disa bleme ntor disability .” Pope’s claim ma y satisfy the first condition, but we need not reach that issue. Pope’s claim does not stem from her injury and thus fail s to satisfy the second condition. Pope does not allege a ca use of acti

on for inj

ury, disablement or disability stemming from an accident in the course of her employment. Rather she alleges a s e pa rate, distinct and dif

ferent cause of action -- her

wrongful discharge be

cause she asserted her right to worker’s compe

nsation benefits
.
Pope , 813 F.2d at 1308 (emphases added).

In Bailey v. Martin Brower Co. , 658 So. 2d 1299 (La. Ct. App. 1995), the plaintiff
was inju red in an on- the-j ob acc ident in Ju ly 1991 . In September 1991, the plaintiff was terminated by his employer, ostensibly for filing a fr audulent workers’ compensation claim. Bailey , 658 So. 2d at 1300. In settling his workers’ compensation claim in De cember 1991, the plaintiff agre

ed to release his former employer from any a nd all claims, actions, and causes of action sustained “ in consequenceof [the] accident that occurred on or about the 21st day of July, 1991.” Id . at 1301. Thereafter, the plaintiff filed a wrongful termin

ation suit agains

tthe former employer in which he alleged that he was illegal ly fired for fil ing a workers’ compensation claim. Id . at 1300. In rejecting the employer’s argument

that the pl aintiff’s retaliator y discharge claim was ba rred by the langu age of the release agreement, the Louisiana appellate c ourt explained:

We find that given the language employed by the parties in

the release agreement, as well as the only testimony on the parties’ intent in confecting tha

t agreement, th

e parties did not in

te nd to release plaintiff’s wrongful discha rge claim. Although purpor ting to release [the employer] fr

om “all claims,” th

e language o

f the rele ase its elf focuses on the pla intiff’s worker’s compensation claim arising on July 21, 1991. The termination, which gave rise to the instant cause of action, did not occur

until September 5, 1991. There is nothing in the document pertain

ing specifical

ly to this separate cause of action, although it was in existence prior to the time that the release was executed. Furthermore, the small consideration given i n exchange for the release lends su

pport to the conclusion that the parties intended for the release to only cover plaintiff’s com pensation claim. Acco rdi ngly, . . . the parties d i d not intend to release plaintiff’s retaliatory

discharge cla

im.

Id
. at 1302; cf

. Spencer v. Howard, Weil, Labouisse & Friedrichs, Inc. , 543 S o. 2d 547, 551-52 (La. Ct. App.) (reaching different result where plaintiff released defendant for all claims arising out of on-the-job acci

dent “or any

thing else that ma

y have occ

urred” to plaintif

f while empl oyed by9 In Tennessee, “[a] claim for damages for retaliatory discharge is not a part of a worker’s compensation claim, but is a separate tort action.” Van Cleave v. McKee Baking Co. , 712 S.W.2d 94, 95 (Tenn. 1986). defendant), writ denied , 546 So. 2d 1217 (La. 1989).

In accordance with these authorities, we conclude that the release languag e in the present case did not bar Reed’s claims for wrongful discharge and breac h of employment

contract. Reed’s complaint did not allege a cause of action for injury or disability resulting fromher on-thejob accident of Mar

ch 13, 1993. Rather

, Reed all eged separat

e , distinct, and different causes of action. She alleged that Alamo wrongfully discharge d her because she

asserted her ri

ght to workers’ compensation benefits, 9 and she further alleged that Alamo breached the parties’ employ ment contract when it discharged her. Moreover, we n ote that the language of the release focused on Reed’s workers’ compensation claim arising due to her March 13, 1993, on-the-job injury. Nothing in the document pert

ained to the separ

atecauses of action alleged in the present case, although

these potential claims existed prior to the time when Reed agreed to the release language. Our conclusion that the release did not bar the present claims is further supported by the fact that

the consideration givenin e xch ange for the rel ease pert ain ed o nly t o disabi lity benefits for Reed’s March 13, 1993, leg i nju ry.

In cont ending that the release barred the present claims, Alamo relies on a line of Alabama decisions holding

that a retaliato

r y discharge action was barred by a prior settlement agreement

which released the employer from all claims on account of the employee’s injury under the Alabama Workmen’s Compensation Act “or otherwise.” Gates Rubber Co. v. Cantrell, 678 So. 2d 754 (Ala. 1996); Ex parte Aratex Servs., Inc. , 622 So. 2d 367 (Ala. 1993); Sanders v. Southern Risk Servs. , 603 So
. 2d 994 (Ala. 1992) ; Dow-United Techs. Composite Prods., Inc. v. Webster , 701 So. 2d 22 (Ala. Civ. App. 1997). We conclude that these decisions are distinguishable from the present case beca use the y d ealt w ith retaliatory discharge claims which, at least arg uably, arose under the Alabama Workmen’s Compensation Act. In contrast, the release in the present case did not purpo rt to release Alamo from liability

for all claims ar

ising under the T

ennessee Worker

s’ Compensation Law. Moreover, in the present case, Ree d also asserted a claim for breach of employment

contract,which did not arise under the Workers’ Compensa

tion Law. I

n any event

, tothe extent thatit conflicts with our decision today

, we decline to fo

llow the reasoning

set forth in the Alabama courts’ decisions.

We also conclude tha

t the present case is easily distinguishable from this court’s deci sion in Davenport v. Home Fed eral Bank , No. 03A01-9401-CV-00034, 1994 WL 287 59 1 (Tenn. App. June 30, 199 4), w herein we held that a plaintiff’s claim for retaliatory discharg e was barred by a prior r

elease executed

in connection with the plaintiff’s termination from employment. In that case, the pla

intiff released

the employe

r “of any a

nd all claims

he has or may acquire

arising outof or related to his employment.” Davenport , 1994 WL 287591, at *1. We rea soned t hat the plaintiff’s subsequent retaliatory discharge claim arose out of or was related to his employment, “and
so must be covered by the express terms of the Release.” Id ., at *6. In contrast, the release in the present case referred only to the injury resulting from Reed’s on-the-job accident of March 13, 1993. The release did not purport to cover the parties’ entire employment re lationship.

VI. Conclusion

That portion of the tria

l court’s j udgment dismissing Reed’s claim for breach of employment

contract is reversed, and this cause is remanded for further p roceedings consistent with this opinion. In all other respects, the trial court’s judgment is affirmed. Co sts of this appeal are tax ed o ne-h alfto R eed a nd o ne-h alfto A lam o, f or w hic h ex ecut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LILL ARD, J. (Concurs)