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| Ronnie Wayne Inman v. Emerson Electric Co.
W1999-02245-WC-R3-CV
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 of findings of fact and conclusions of law. The trial court found the plaintiff sustained a twenty-five percent permanent partial disability to the body as a whole. The defendant disputes the finding. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed. DON R. ASH, SP. J., in which JANICE M. HOLDER, J., and JOHN K. BYERS, SP. J., joined. P. Allen Phillips and Jennifer K. Craig, Jackson, Tennessee, for the appellant, Emerson Electric Co. John C. Nowell, Jr., Trenton, Tennessee, for the appellee, Ronnie Wayne Inman. MEMORANDUM OPINION History Plaintiff, Ronnie Wayne Inman, filed a Complaint for workers' compensation benefits on April 25, 1997. The trial was heard on August 17, 1999. At the conclusion of the proof the trial court awarded plaintiff 25% permanent partial disability to the body as a whole. Defendant, Emerson Electric Co., appeals the decision of the trial court. For the reasons discussed below, we affirm. Facts On or around May 18, 1996, plaintiff was struck on the back, buttocks and right arm by hot aluminum, which shot from a machine at defendant's plant. The plaintiff was taken to the emergency room at Humboldt General Hospital. His wounds were dressed and treated and he was sent home with oral medication. Theplaintiffreturnedto work thenext day, but was unable to work. Later in the week, plaintiff was transferred to a cooler part of the plant. At his new job the plaintiff had no trouble keeping up with his production quota. Moreover, other than doctor appointments, the plaintiff did not miss work before the trial. Dr. William Hickerson, a plastic surgeon, first examined the plaintiff on February 4, 1997 for scar tissue on his back. At the examination, the plaintiff complained of occasional shooting pain in the area of the scar tissue. Dr. Hickerson diagnosed scar tissue and recommended a re- moisturizing agent. Upon re-examination, Inman was found to have little change to his condition. Dr. Hickerson opined the scar tissue was not such that it would be rated under the AMA Guidelines. He did not place any restrictions based upon the scarring of the skin. Next, Dr. Hickerson recommended that Dr. Cobb, an orthopedic surgeon, examine the plaintiff. Dr. Cobb noted that the problems might be musculoskeletal in nature. He also found the plaintiff had more tenderness with deeper palpation and there could be a mild lumbar strain. Dr. Cobb opined there was no sign of permanent impairment from an orthopedic standpoint and there were no restrictions from an orthopedic standpoint. Next, Dr. Goshorn, a plastic surgeon, examined the plaintiff. Dr. Goshorn's opinion was presented to the trial court through a letter marked as an exhibit to Dr. Schnapp's deposition. Dr. Goshorn opined that the plaintiff had chronic pain secondary to a deep thermal injury. He further stated that the plaintiff had no functional impairment to the area, although he had impairment secondary to pain. Next, Dr. Schnapp, a physician who specializes in pain management, examined the plaintiff. Upon his examination plaintiff described an aching and throbbing pain, which was sensitive, particularly when he was hot and perspired. Dr. Schnapp opined that a significant portion of the plaintiff's pain was mechanical pain related to bones, joints, and ligaments. Further, he did not believe that the plaintiff should be following any restrictions due to the burn injury and that his primary pain was deeper and unrelated to the burn. Finally, Dr. DeMere examined the plaintiff and diagnosed healed scars of arms and back. Dr. DeMere was unable to find any other injury apart from the skin damage. He opined a 1% permanent partial impairment rating to the body as a whole. However, he stated that the AMA Guidelines were not particularly helpful in arriving at the impairment rating. -2-
Authoring Judge: Don R. Ash, Sp. J.
Originating Judge:George R. Ellis, Chancellor |
Wayne County | Workers Compensation Panel | 08/20/01 | |
| Denny Cain v. Whirlpool Corporation,
M2000-01688-WC-R3-CV
In this appeal, the employer insists (1) the trial court erred in admitting into evidence the testimony of a chiropractor in an action involving a shoulder injury, (2) the award of permanent partial disability benefits is excessive and (3) the trial court erred in awarding as discretionary costs expenses for the taking of the chiropractor's deposition. As discussed below, the judgment is modified by reducing the award of permanent partial disability benefits to one equal to two and one-half times the clinical impairment rating, but otherwise affirmed.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:J. O. Bond, Judge |
Wilson County | Workers Compensation Panel | 08/03/01 | |
| Linda Rowland v. Northbrook Health Care Center
W2000-02562-WC-R3-CV
In this appeal, the employer, Northbrook, insists the award of permanent partial disability benefits based on 7 percent to the body as a whole is excessive. As discussed below, the panel has concluded the judgment should be affirmed.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Joe C. Morris, Chancellor |
Madison County | Workers Compensation Panel | 07/30/01 | |
| William Craig Browning v. James River Corporation
W1999-01799-WC-R3-CV
The trial court determined that the plaintiff suffered a 5% vocational impairment to each leg. The defendant asserts that the plaintiff failed to provide proper notice of his injuries; that he failed to prove that the injuries arose out of and within the course and scope of his employment; and that the evidence does not support the amount of vocational disability awarded. For the reasons set forth below, We affirm the judgment of the trial court.
Authoring Judge: J. Steven Stafford, Special Judge
Originating Judge:Joe C. Morris, Chancellor |
Madison County | Workers Compensation Panel | 07/17/01 | |
| William Craig Browning v. James River Corporation
W1999-01799-WC-R3-CV
The trial court determined that the plaintiff suffered a 5% vocational impairment to each leg. The defendant asserts that the plaintiff failed to provide proper notice of his injuries; that he failed to prove that the injuries arose out of and within the course and scope of his employment; and that the evidence does not support the amount of vocational disability awarded. For the reasons set forth below, We affirm the judgment of the trial court.
Authoring Judge: Wil V. Doran, Special Judge
Originating Judge:Joe C. Morris, Chancellor |
Madison County | Workers Compensation Panel | 07/17/01 | |
| Linda Sue Pinkard v. Findlay Industries, Inc.
M2000-01320-WC-R3-CV
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. In this appeal, the employer insists (1) the trial court's finding of permanent partial impairment or disability is contrary to the preponderance of the evidence, (2) the trial court erred in denying the employer's request for the appointment of a neutral physician, and (3) the award of permanent partial disability benefits on the basis of 6 percent to the body as a whole is excessive. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the General Sessions Court of Warren County Affirmed. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Patrick A. Ruth, Nashville, Tennessee, for the appellant, Findlay Industries, Inc. William Joseph Butler and Frank D. Farrar, Lafayette, Tennessee, for the appellee, Linda Sue Pinkard. MEMORANDUM OPINION At the time of the trial on March 17, 2, the employee or claimant, Linda Sue Pinkard, was 36 years old with a ninth grade education and no special skills or training. She did have experience as a production worker and was employed by Findlay, a sewing factory, for more than ten years. On November 24, 1998, while lifting material onto a table at work, she felt a sudden pull in her back. Later that night she felt numbness in her legs and tingling in her toes. She was sent to Riverpark Hospital for emergency care and presented with a panel of possible treating physicians, from whom she chose Dr. Robert Dimick, a neurosurgeon, in Nashville. Dr. Dimick released her after providing conservative care. Thereafter, she saw Dr. John Thompson on the recommendation of her attorney. Dr. Dimick diagnosed low back pain and spasm, degenerative disc disease, a protruded disc and stenosis, with mild to moderate pressure on the nerve roots. The doctor conceded the injuries could have been caused or aggravated by trauma at work. Without measuring her loss of motion or sensation, Dr. Dimick estimated her permanent impairment rating at zero percent. Dr. Thompson, an orthopedic surgeon in Sparta, opined that the claimant's injuries were work-related. He estimated her permanent impairment at 17 percent to the whole body and restricted her from lifting more than 2 pounds occasionally, 1 pounds frequently or 5 pounds repetitively. He prescribed standing no more than 3 minutes at a time or more than 5 minutes of each hour, no more than occasional bending, stooping, kneeling and no squatting, climbing, crouching, crawling or twisting. Dr. S. M. Smith, an orthopedic surgeon in Jamestown, saw the claimant for an independent medical examination and evaluation in July 1999. Dr. Smith diagnosed a ruptured disc at L5-S1. He estimated the claimant's permanent impairment at 19 percent to the whole body and prescribed permanent restrictions. The claimant's own testimony, supported by other lay proof, was that she could not work within her restrictions. She was unable to continue in a janitorial service job that she had held before her injury at Findlay. She did return to work for Findlay at a lower paying job in the parts room, but is concerned whether she would be able to find any work if she lost her job. Upon the above summarized evidence, the trial court found the claimant's permanent medical impairment to be 15 percent to the body and awarded permanent partial disability benefits based on 6 percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 177 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The extent of an injured worker's vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 451 (Tenn. 1999). The appellant contends the trial judge should have rejected Dr. Smith's opinion because his examination was conducted in the claimant's attorney's office and because Dr. Smith's opinion is -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Larry Ross, Judge |
Warren County | Workers Compensation Panel | 07/16/01 | |
| John Patterson v. The Phelan Company, Inc.
W1998-00598-SC-WCM-CV
The workers'compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff sustained a twenty-two and one-half percent permanent partial disability to the body as a whole as a result of an on-the-job injury to his neck. The defendant claims the evidence does not support the finding. We affirm the judgment of the trial court.
Authoring Judge: Don R. Ash, Sp. J.
Originating Judge:George R. Ellis, Chancellor |
Gibson County | Workers Compensation Panel | 07/13/01 | |
| Mary Regina Blalock v. Travelers Insurance Company,
W2000-01616-WC-R3-CV
The appellant, Travelers, insists (1) the trial court improperly applied the last injurious injury rule, (2) the trial court erred by assuming certain facts and taking judicial notice of matters not in evidence, (3) the trial court erred by giving deference to the opinion of an evaluating physician instead of a treating physician and (4) the award of benefits based on 25 percent to both arms is excessive. As discussed below, the panel has concluded the judgment should be affirmed.
Authoring Judge: Joe C. Loser, Jr., Sp. J
Originating Judge:Karen R. Williams, Judge |
Shelby County | Workers Compensation Panel | 07/12/01 | |
| Dorothy Pirtle v. Royal Insurance Company
W2000-00867-WC-R3-CV
In this appeal, the employer's insurer insists (1) the award of benefits based on 75 percent permanent partial disability to both arms is excessive and (2) the trial court erred in awarding as discretionary costs an independent medical examiner's fee for examining and evaluating the injured employee. As discussed below, the panel has concluded the award of disability benefits should be affirmed and the award of discretionary costs modified.
Authoring Judge: Joe C. Loser, Jr., Sp. J
Originating Judge:W. Michael Maloan, Chancellor |
Obion County | Workers Compensation Panel | 07/12/01 | |
| Darra Mcmillin v. Mckenzie Special School District,
W2000-02165-WC-R3-CV
In this appeal, the Second Injury Fund (the Fund) insists the trial court erred in (1) awarding permanent total disability benefits and (2) apportioning the award between the Fund and the employer. The employer insists (1) the employee's injury is not compensable, (2) the trial court erred in commuting one-half of the award to a lump sum, and (3) the trial court erred in awarding the employee a scooter and special bed. As discussed below, the panel has concluded judgment should be modified by reducing the lump sum, because it exceeds the statutorily allowed maximum, but otherwise affirmed.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Julian Guinn, Judge |
Carroll County | Workers Compensation Panel | 07/12/01 | |
| Murray Carter v. Murray, Inc.
W2000-01261-WC-R3-CV
In this appeal, the employer contends the award of permanent partial disability benefits based on 35 percent to the arm is excessive and should be reduced to one based on 1 percent to the arm. As discussed below, the panel has concluded the judgment should be affirmed.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Joe C. Morris, Chancellor |
Carter County | Workers Compensation Panel | 07/02/01 | |
| Marshall Key v. Savage Zinc, Inc.
M2000-00306-WC-R3-CV
The defendant, Savage Zinc, Inc., appeals the judgment of the Criminal Court of Smith County where the trial court found Mr. Key to have a 14% anatomical impairment and awarded 35% permanent partial disability to the body as a whole for a work-related shoulder injury. For the reasons stated in this opinion, We affirm the judgment of the trial court.
Authoring Judge: James Weatherford, Sr., J.
Originating Judge:J.O. Bond, Judge |
Marshall County | Workers Compensation Panel | 07/02/01 | |
| Drew Davis v. Avron Truss Company, Inc.
E2000-00780-WC-R3-CV
The trial court found the fired plaintiff's return to work non-meaningful and awarded eighteen percent vocational disability. The plaintiff's misconduct was found irrelevant because he had not reached maximum medical improvement on the day he was fired. The trial court also awarded discretionary costs to the plaintiff. We find an employer may dismiss an injured employee for egregious misconduct, such as fighting with a fellow employee, regardless of the injured employee's medical status at the time of the misconduct. We therefore affirm the judgment of the trial court, but we modify the award to two and one-half times the impairment rating given by the employee's physician or fifteen percent. We also affirm the trial court's judgment fully with respect to discretionary costs.
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:John A. Turnbull, Judge |
Knox County | Workers Compensation Panel | 07/02/01 | |
| Donnie Walton v. Credit General Insurance Company
W1999-01769-SC-WCM-CV
The trial court found the Plaintiff, Donnie Walton ("Walton"), suffered a permanent partial impairment of fifty percent to the body as a whole. The Defendant, Credit General Insurance Company ("General Credit"), stated the evidence does not support the finding. We affirm and modify the judgment of the trial court.
Authoring Judge: Don R. Ash, Sp. J.
Originating Judge:Martha Brasfield, Chancellor |
Lauderdale County | Workers Compensation Panel | 06/28/01 | |
| Bobby Gates v. Jackson Appliance Company
W1999-00743-SC-WCM-CV
The defendant, Jackson Appliance Company, appeals the judgment of the Chancery Court of Madison County awarding plaintiff, Bobby Gates, twenty-five (25) percent permanent partial disability to the body as a whole. For the reasons stated in this opinion, We affirm the judgment of the trial court.
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Originating Judge:Hon. Joe C. Morris, Chancellor |
Madison County | Workers Compensation Panel | 06/27/01 | |
| Dr. Nord's Mouth As Was Successfully Done Bycounsel In Kerr v. Magic Chef, 793 S.W.2D 927, 928-
W1999-00743-SC-WCM-CV
The defendant, Jackson Appliance Company, appeals the judgment of the Chancery Court of Madison County awarding plaintiff, Bobby Gates, twenty-five (25) percent permanent partial disability to the body as a whole. For the reasons stated in this opinion, We affirm the judgment of the trial court.
Authoring Judge: Henry D. Bell, Special Judge
Originating Judge:Hon. Joe C. Morris, Chancellor |
Madison County | Workers Compensation Panel | 06/27/01 | |
| John Sands v. Murray Outdoor Products, Inc.
W2000-00468-SC-WCM-CV
This workers' compensation appeal has been referred to the Special Worker's Compensation Panel of the Supreme Court inaccordance with Tennessee Code Annotated _ 5-6-225(e) for a hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff has appealed contending that the trial court erred in granting the defendant a motion to dismiss his complaint pursuant to Rule 41, Tennessee Rules of Civil Procedure, for a work-related injury occurring on October 6, 1998. After a review of the entire record, briefs of the parties and applicable law, judgment of the trial court is reversed and remanded. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Reversed and Remanded. L. TERRY LAFFERTY, SR. J., in which JANICE M. HOLDER, J., and JOE C. LOSER, JR., SP. J., joined. Ricky L. Boren, Jackson, Tennessee, for the appellant, John Sands. J. Arthur Crews, II and Michael A. Carter, for the appellee, Murray Outdoor Products, Inc. MEMORANDUM OPINION The plaintiff, age forty (4), testified that on April 29, 1997, while pulling a load of engines, he twisted his back and it popped. The plaintiff reported his injury and he was treated by Dr. John Holancin, but Workers' Compensation sent the plaintiff to see Dr. David Johnson who ran an MRI. The plaintiff lost no work and was on light duty for six (6) weeks. Between his return to work and October 1998, the plaintiff's back would lock up and his legs would tingle from prolonged standing about three to four times a month. The plaintiff stated that on October 6, 1998, he was picking up a unit off the floor to set it on the line, when his back went out and he hit the floor in pain. The plaintiff saw Dr. Holancin, who ordered a CT scan. At the request of the defendant, the plaintiff was referred to Dr. John Brophy. The plaintiff stated that he was restricted in his ability to do any lifting or bending while on light duty. The plaintiff testified that he saw Dr. Robert Barnett and that Dr. Barnett's nurse took down his history. When asked if he told the nurse about the October 1998 injury, the plaintiff stated, "I believe I did." In several parts of his testimony, the plaintiff is sure that he told the nurse about his October injury and cannot explain why such event is not recorded in her intake notes. The plaintiff admitted that while talking to Dr. Barnett he did not tell Dr. Barnett about the October injury. In his deposition, Dr. John D. Brophy, a neurosurgeon, testified that he first saw the plaintiff on January 6, 1999. Dr. Brophy obtained the plaintiff's historyin which the plaintiff injured his back in April 1997, while pulling a load of engines at work. An MRI was within normal limits. After conservative treatment, the plaintiff described approximately a twenty percent (2%) improvement from his injury. In October 1998, the plaintiff re-injured his back from lifting a lawn mower. Dr. Brophy reviewed the films of a CAT scan which revealed a bulging disc at L-5 S- 1. Dr. Brophy would not call this bulge a "ruptured disc." It was Dr. Brophy's opinion that the clinical exam of the plaintiff was a myofascial pain syndrome, with no evidence of radiculopathy. Dr. Brophy permitted the plaintiff to return to work full time without any restrictions on January 18, 1999. Dr. Brophy recommended to the plaintiff that he commence a physical exercise program, which consisted of walking and other activities. Dr. Brophy saw the plaintiff on March 17, 1999, with a complaint of no improvement in his pain syndrome. Dr. Brophy recommended that he continue his walking exercises. An evaluation of AP and lateral spine thoracic films demonstrated multi-level spondylosis. On October 6, 1999, the plaintiff returned with a complaint of continuing pain to his back and leg. Dr. Brophy's physical overall exam found the plaintiff's strength, gait, sensory, and symmetric reflexes normal. As of October 6, 1999, Dr. Brophy opined that the plaintiff had a zero permanent partial impairment rating, with no permanent restrictions. When asked about the differences in the MRI of 1997 and the CAT scan of 1998, the question was: Q. Doctor, certainly a lifting incident is capable of causing a bulging disc, is that correct? A. Yes. Q. And - - A. - - And the most common hist ory I get is I just woke up with it, Doctor, I don't understand. Q. But that's not the history you got in this case? A. No. -2-
Authoring Judge: L. Terry Lafferty, Senior Judge
Originating Judge:Julian P. Guinn, Judge |
Carroll County | Workers Compensation Panel | 06/27/01 | |
| Mary Ella Franklin v. Troll Associates,
W1999-01164-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded plaintiff twenty percent permanent partial disability to the right upper extremity for a wrist injury and an additional twenty percent permanent partial disability to the right upper extremity for a shoulder injury. Defendant appealed the decision of the trial court. We affirm and modify the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed and Modified DON R. ASH, SP. J., in which JANICE M. HOLDER, J., and JOHN K. BYERS, SR. J., joined. Ralph T. Gibson, Memphis, TN, for the Appellant, Troll Associates, et al. Matthew S. Russell and John L. McWhorter, Memphis, TN, for the Appellee, Mary Ella Franklin. MEMORANDUM OPINION History Plaintiff, Mary Franklin ("Franklin"), filed a Complaint for workers' compensation benefits on May 3, 1996. The trial was heard on June 23, 1999. At the conclusion of the proof, the trial court awarded Franklin twenty percent permanent partial disability to the right upper extremity for her wrist injury and an additional twenty percent permanent partial disability to the right upper extremity for her shoulder injury. Defendants, Troll Associates and Liberty Mutual Insurance Co., appeal the decision of the trial court. For the reasons discussed below, we affirm and modify the decision of the trial court. Facts Franklin was employed at Troll Associates, Inc. ("Troll"), from September 1993 until November 1994. During her employment Franklin operated a plastic packaging and sealing machine and did some line work. Franklin would package approximately 2, packages on an average workday. Franklin's job also required her to do some repetitive lifting. Franklin began to experience pain in her right arm and shoulder. Subsequently, Franklin reported her injuryto her supervisor, who referred her to Dr. Phillip Mintz for treatment. Next, Dr. Mintz referred Franklin to an orthopedic doctor, and she was sent to Dr. Riley Jones. Dr. Jones saw Franklin concerning her complaints. She was given pain medication and sent back to work. On November 28, 1994 Dr. Jones opined Franklin had reached maximum medical improvement. Later Franklin returned to Dr. Jones with the same complaints. Dr. Jones then conducted an EMG and diagnosed her with carpal tunnel syndrome and recommended surgery. On January 3, 1995, Franklin underwent right endoscopic carpal tunnel release and right DeQuervains release. Before and after the surgery Franklin testified she told Dr. Jones of her concerns about her shoulder. On April 1, 1995, Dr. Jones stated that Franklin was ready to return to work. Dr. Jones found no permanent partial impairment as a result of Franklin's carpal tunnel injury and surgery. Further, Dr. Jones found no permanent partial impairment related to Franklin's shoulder because he never treated her for the injury. Subsequently, Franklin went to Dr. Wilkinson and complained of pain over the back of her right shoulder. Dr. Wilkinson could not find a relationship between her shoulder pain and her carpal tunnel injury. He gave Franklin a three percent permanent partial impairment to her right upper extremity as a result of the residual from her carpal tunnel syndrome. Finally, an unauthorized physician, Dr. Aronoff, examined Franklin. Franklin did not seek approval from Troll before she incurred these additional medical costs. Dr. Aronoff diagnosed Franklin with a chronic rotator cuff, tendinitis, impingement syndrome, and an arthritic AC joint. On May 6, 1996, Dr. Aronoff performed successful surgery on Franklin's shoulder. Dr. Aronoff gave Franklin a permanent partial impairment to the right upper extremity of ten percent. Further, Dr. Aronoff gave Franklin a separate ten percent permanent partial impairment rating for the residual from her carpal tunnel syndrome. Dr. Aronoff further opined that Franklin's injuries were consistent with her work history dealing with repetitive overhead lifting. Medical Evidence At trial the evidentiary deposition testimony of Dr. Jones, Dr. Wilkinson, and Dr. Aronoff were entered into evidence. Dr. Jones never treated Franklin for the shoulder injury, and Dr. Wilkinson testified there was no relationship between the Franklin's carpal tunnel injury and her -2-
Authoring Judge: Don R. Ash, Sp. J.
Originating Judge:D.J. Alissandratos, Chancellor |
Franklin County | Workers Compensation Panel | 06/26/01 | |
| Jerry Russell v. Bill Heard Enterprises, Inc.,
W2000-00965-WC-R3-CV
In this appeal, the employer-appellant insists (1) the trial court erred in admitting into evidence the expert testimony of an independent medical examiner, (2) the award of permanent partial disability benefits based on 2 percent to the body as a whole is excessive and (3) the trial court erred in commuting the award to a lump sum, sua sponte. The employee-appellee insists the award of permanent partial disability benefits should be increased to one based on 4 percent to the body as a whole. As discussed below, the panel has concluded the award should be reduced to one based on 15 percent to the body as a whole, payable periodically.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:James F. Russell, Judge |
Shelby County | Workers Compensation Panel | 06/26/01 | |
| Donald Ferrell v. York Trucking, Inc.,
M2000-01350-WC-R3-CV
This workers' compensation appeal has been referred to theSpecial Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff had suffered an assault during the course and scope of his employment, which resulted in a permanent disability of 4 percent to the body as a whole as a result of a psychiatric injury. The trial judge also awarded the plaintiff temporary total disability, future medical benefits and other costs. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed JOHN K. BYERS, Sr. J., in which FRANK F. DROWOTA, III, J. and JOSEPH C. LOSER, JR., SP. J., joined. Robert J. Uhorchuk, Chattanooga, Tennessee, for the appellants, York Trucking, Inc. et al. H. Thomas Parsons, Manchester, Tennessee, for the appellee, Donald Ferrell. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Plaintiff's Biography The plaintiff was age fifty at the time of the trial. He had not completed the eighth grade in school. His work history consisted almost entirely of being a truck driver and tow-motor operator. He is married and does not have any children. History of Previous Injuries The plaintiff had a workers' compensation claim in 1982 and another in 1991. Each of these was settled. The 1991 injury occurred when the plaintiff fell from a truck of a previous employer. The plaintiff injured his neck, shoulder and lower back in that accident. Approximately nine months after the 1991 incident, the plaintiff developed a condition known as syncope, which is a fainting episode that results from coughing that causes restricted blood flow to a person's heart. In addition to the syncope, the plaintiff developed blurred vision, dizziness, headaches and depression. The episodes of fainting diminished somewhat prior to the injury in this case. The plaintiff testified the other symptoms he suffered never stopped bothering him. Discussion of Current Case This case arose out of an occurrence on July 15, 1997. The plaintiff and his wife, who drove with him because of his history of fainting, were in the course of their employment with the defendant employer. They stopped at a restaurant in Murfreesboro at approximately 3: a.m. The plaintiff and his wife went into the restaurant and got food to go. When they returned to the truck, the plaintiff's wife got into the truck and took the passenger's seat. The plaintiff testified he heard a noise at the back of the truck and went in that direction to investigate. The plaintiff said he heard something and turned and saw a man in a blue shirt. Then said the plaintiff, "my lights went out in Georgia." The plaintiff's wife did not see or hear anything occurring, but she became concerned when the plaintiff did not come into the truck. She testified she looked out toward the back of the truck and saw the plaintiff lying on the ground about half way down the length of the truck. She went to the plaintiff and held him in her lap. She got the attention of another truck driver who summoned aid from the restaurant. This driver left the area without being identified. An employee of the restaurant came out to help with the plaintiff and verified that the plaintiff was lying on the ground in an unconscious state. The only difference between the witness' testimony and that of the plaintiff's wife was that the restaurant employee said the plaintiffwas lying much nearer the driver door than did the wife. -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Jeffery Stewart, Chancellor |
Franklin County | Workers Compensation Panel | 06/26/01 | |
| Danny Middleton v. Porcelain Products Company
E2000-01464-WC-R3-CV
The employee appeals and contends the trial court erred (1) in finding his medical impairment to be eleven percent instead of eighteen percent to the body, (2) in concluding that he has employment opportunities available locally, and (3) in failing to consider economic feasibility in determining local employment opportunities. We affirm the judgment of the trial court.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Daryl Fansler, Chancellor |
Knox County | Workers Compensation Panel | 06/25/01 | |
| Michael T. Burum v. Bnfl, Incorporated and Hartford
E2000-01383-WC-R3-CV
This workers' compensation appeal has been referred to the SpecialWorkers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the plaintiff, who fell at work, permanentpartial disabilityof 5 percent to the left leg. We affirm the decision of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, C. J., and ROGER E. THAYER, SP. J., joined. Robert R. Davies, Knoxville, Tennessee, for the appellants, BNFL, Inc. and Hartford Insurance Company. Roger L. Ridenour, Clinton, Tennessee, for the appellee, Michael T. Burum. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Plaintiff's History The plaintiff, thirty-nine years of age at the time of trial, is a high school graduate. He attended classes at Tennessee Technical Institute and the University of Tennessee where he studied computer science. The plaintiff also served for eight years in the United States Armed Forces working in communications, computers, radios and electrical repair. The plaintiff's job history consists of work as a machine operator, a service desk employee and a paper technician with a large paper manufacturer. The plaintiff worked for the defendant, who contracted with the K-25 facility for waste management, as a waste management employee. On November 2, 1998, the plaintiff was carrying out his duties for the defendant when he fell and twisted his knee. The plaintiff eventually underwent surgery on the left knee. He testified the knee still causes him problems, and he can no longer participate in activities or work as before the injury. Discussion The trial court's decision in this case appears to be based mainly on the testimony of the plaintiff. Where the trial judge has made a determination based upon the testimony of witnesses whom he has seen and heard, great deference must be given to that finding in determining whether the evidence preponderates against the trial judge's determination. See Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). When the trial judge sees and hears the witnesses, it is not for this Court to determine whether a witness has so far destroyed his credibility by inconsistent statements that the trial judge is unable to give credence to any of the witness' testimony. The trial judge's finding of fact in this regard is conclusive if there is any evidence to support it. Walls v. Magnolia Truck Lines, Inc., 622 S.W.2d 526 (Tenn. 1981). In this case, the trial court made no specific finding regarding the plaintiff's credibility or lack thereof. We find nothing in the record to undermine the trial court's decision to credit the testimony of the plaintiff. Both parties in this action agreed at trial that a worker does not have to show vocational disability or loss of earning capacity to be entitled to the benefits for the loss of use of a scheduled member. Duncan v. Boeing Tenn., Inc., 825 S.W.2d 416 (Tenn. 1992). However, the plaintiff may provide such proof to the court as a factor for the court to consider when determining loss of use. In this case, the plaintiff testified as to the loss of use of his leg. He stated he did not believe he could do jobs he had previously done; he also testified he could no longer participated in sports_baseball, basketball, softball_as he had previously done. The plaintiff testified he could neither sit nor walk for long periods of time without pain and told the trial court that the injury bothered him "pretty much all the time." The plaintiff's testimony is unrefuted; the defendants offered no rebuttal proof at trial regarding the plaintiff's testimony about his vocational prospects -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:James B. Scott, Judge |
Knox County | Workers Compensation Panel | 06/25/01 | |
| Gary L. Holt, Sr. v. Ozburn-Hessey Moving Company and American Alternative Insurance Corporation
M1999-02563-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The Appellant appeals from the amount of the award of permanent partial disability benefits. After a complete review of the entire record, the briefs of the parties, and the applicable law, we affirm the award made by the trial court. Tenn. Code Ann. ' 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed LEE RUSSELL, SP. J., in which ADOLPHO A. BIRCH, J. and JAMES L. WEATHERFORD, SR.J., joined Jeffrey P. Boyd, Jackson Tennessee, for the appellant, Ozburn-Hessey Moving Company James R. Tomkins, Nashville, Tennessee, for the appellee, Gary L. Holt, Sr. MEMORANDUM OPINION This is an appeal by Defendant Ozburn-Hessey Moving Company (hereinafter referred to as "Ozburn-Hessey" or "the company") from an award of benefits made in favor of Gary L. Holt 1 ("Claimant") on a claim filed pursuant to the Tennessee Workers Compensation Act. The trial court held that the Claimant was an employee of Ozburn-Hessey and awarded the Claimant a forty percent permanent partial disability to the body as a whole as a result of an injury to the back which allegedly occurred on July 23, 1998. The sole issue on appeal is whether the trial judge erred in her holding that the Claimant was an employee of Ozburn-Hessey and not a mere independent contractor. We conclude that the evidence does not preponderate against the trial judge's finding that the Claimant was an employee.
Authoring Judge: Lee Russell, Sp. J.
Originating Judge:Ellen Hobbs Lyle, Chancellor |
Davidson County | Workers Compensation Panel | 06/14/01 | |
| Did Not Meet The Criteria For Acceptance of Scientific Testimony In Mcdaniel v. Csx Transportation
M2000-00185-WC-R3-CV
The plaintiff, Mary E. Miller, appeals the judgment of the Chancery Court of Tennessee for the 16th Judicial District at Murfreesboro, where the trial court found: (1) that Ms. Miller sustained an injury by accident arising out of and in the course and scope of her employment and awarded twenty percent (2%) permanent vocational or industrial disability to the right lower extremity; (2) that the testimony of Ms. Miller's expert witness on reflex sympathetic dystrophy (RSD) and fibromyalgia did not meet the criteria for acceptance of scientific testimony in McDaniel v. CSX Transportation Inc., 955 S.W.2d 257 (Tenn.1997), and therefore excluded his testimony; (3) that her condition of fibromyalgia and resulting psychiatric condition were not work-related and as such were not compensable; (4) that Ms. Miller was entitled to permanent medical care and treatment only for the injury to her right leg arising out of this work-related accident but not for fibromyalgia or any other conditions. Ms. Miller also raises some other procedural and evidentiary issues that will be addressed herein. For the reasons stated in this opinion, We affirm the judgment of the trial court.
Authoring Judge: Weatherford, Sr. J.
Originating Judge:Don Ash, Chancellor |
Rutherford County | Workers Compensation Panel | 06/13/01 | |
| Arthur Ray White v. Maytag Cleveland Cooking
E2000-01451-WC-R3-CV
The Second Injury Fund has appealed an award of total disability where the employer was ordered to pay 2 percent of the award and the Second Injury Fund was to pay the remaining 8 percent. Judgment of the trial court is affirmed.
Authoring Judge: Thayer, Sp. J.
Originating Judge:Jerri S. Bryant, Chancellor |
White County | Workers Compensation Panel | 06/13/01 |