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| Emily P. Bowen v. Frito-Lay, Inc.,
M2002-02552-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel 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. The employee in this case sustained 2 separate work-related injuries and one back injury at home. She is now totally disabled and draws Social Security Disability benefits. The employee argues that the trial court erred: (1) in finding that the employee did not sustain a compensable back injury in the course and scope of her employment in March 1999; and (2) in dismissing her complaint against the Second Injury Fund. Additionally, the employer contends that the trial court erred when it held that the employee's February 1998 back injury that occurred while working for this employer was not barred by the statute of limitations. The panel has concluded that the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J., and JOE C. LOSER, JR., SP.J., joined. Gene Hallworth, Columbia, Tennessee, for the appellant, Emily P. Bowen. Edward A. Hadley, Nashville, Tennessee, for the appellees, Frito-Lay, Inc., and RSKCo. Paul G. Summers, Attorney General; E. Blaine Sprouse, Assistant Attorney General; James G. Davis, for the appellee James Farmer, Director of Tennessee Department of Labor and Workforce Development, Workers' Compensation Division, Second Injury Fund. MEMORANDUM OPINION Ms. Emily P. Bowen was 5 years old at the time of trial, has a seventh-grade education, and has no special skills or training. She worked as a packer for Frito-Lay, Inc., from June 3, 198, until May 17, 1999. On February 4, 1998, Ms. Bowen was working on a wrapper line when she picked up a 35 pound roll of cellophane and immediately felt sharp pain in her back. Dr. Gregory Lanford, a neurosurgeon and her long-time treating physician, took her off work and treated her conservatively with medication and physical therapy. A myelogram revealed nerve root impingement and on May 19, 1998, Dr. Lanford performed a lumbar diskectomy and nerve root decompression at L5-S1. Dr. Lanford released her to return to light duty work in July of 1998. In November of 1998, he released Ms. Bowen to return to work full-time at Frito-Lay with a 25 pound lifting restriction. He assigned a 1% additional impairment rating for the February 1998 injury.1 Ms. Bowen continued taking medication. At her January 14, 1999 appointment, Dr. Lanford scheduled a follow-up appointment for April 15, 1999. In March of 1999, Ms. Bowen was on a temporary assignment packing cookies in tins and placing trays of cookie tins weighing approximately 18 pounds on a bakers' rack. She started having lower back and leg pain, right arm and shoulder pain caused by "leaning over the tray and reaching over the belt in that awkward [bent-over] position for so long." She reported this injury to her employer but continued to work. On April 15, 1999, Ms. Bowen went to see Dr. Lanford for her previously scheduled follow- up appointment for the 1998 surgery. His notes indicate that she had a new problem and "had re- injured her back" while lifting cookie trays at work. Dr. Lanford found diminished range of motion but x-rays were "unrevealing." He diagnosed low back strain but stated her main complaint was the shoulder pain and that she did not complain of radicular leg pain at this point. He prescribed physical therapy and scheduled a follow-up appointment for May 2, 1999. The physical therapist prescribed a TENS unit, heat therapy, and a back support for Ms. Bowen to wear while at work. Physical therapy was provided at the plant and Ms. Bowen did not miss any work because of this injury. 1While working for Frito-Lay, Ms. Bowen had a series of injuries for which she underwent 2 lumbar surgeries and 1 cervical spine surgery. In 1997 M s. Bowen and Frito-Lay reached a settlement agreement for these injuries. The settlement agreement does not assign percentages of disability but cites a physician's impairment rating of 1% for the lumbar spine and 15% for the cervical spine. M s. Bowen continued to work for Frito-Lay after the 1997 settlement and none of these earlier injuries is the subject of this litigation. -2-
Authoring Judge: James L. Weatherford, Sr.J.
Originating Judge:Robert L. Jones, Chancellor |
Giles County | Workers Compensation Panel | 04/30/04 | |
| Stella B. Todd v. Boulevard Terrace Rehabilitation and
M2003-01357-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 of findings of fact and conclusions of law. The trial court found the claimant failed to give the statutory notice of injury and dismissed the suit. We affirm.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Robert E. Corlew, III, Circuit Judge |
Rutherford County | Workers Compensation Panel | 04/30/04 | |
| Mamie Richburg v. Whirlpool Corporation
M2003-00364-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 to the Supreme Court of the findings of fact and conclusions of law. The issues presented to the trial court were: (1) whether the plaintiff sustained an injury to her neck arising out of the course and scope of her employment on October 18, 2; (2) whether proper notice was given of her injury; and (3) whether defendant would be allowed a setoff for payment of unemployment compensation benefits against temporary total disability payments. As discussed below, we affirm the trial court in part and reverse in part. Tenn. Code Ann. _ 5-6-225(e) (2 Supp.) Appeal as of Right; Judgment of the Chancery Court is Affirmed in part and Reversed in part. ALLEN W. WALLACE, SR. J., in which ADOLPHO A. BIRCH, JR., J., joined and JOHN K. BYERS, SR. J., not participating. David T. Hooper, Brentwood, Tennessee, for Appellant Whirlpool Corporation Dicken E. Kidwell, Murfreesboro, Tennessee for Appellee Mamie Richburg MEMORANDUM OPINION Employee, Mamie Richburg, initiated this civil action to recover workers' compensation benefits for an alleged work-related injury. Employer, Whirlpool Corporation, denied that employee suffered an injury arising out of and in the course and scope of her employment and averred the employee failed to give notice as required by law. Following a trial of this cause on October 3, 22, the trial court ordered permanent partial disability benefits based on forty percent to the body as a whole. Employer filed a motion to alter or amend the final judgment and made an oral motion to amend their pleadings to conform with the evidence. The motion sought the affirmative defense of setoff for payment of unemployment benefits received by employee during the time employee received temporary total benefits following her neck injury. The trial court granted the motion allowing setoff. The employer has appealed the trial court's award and employee appeals the trial court's allowance of a setoff.
Authoring Judge: Allen W. Wallace, Sr. J.
Originating Judge:Robert E. Corlew, III, Chancellor |
Rutherford County | Workers Compensation Panel | 04/30/04 | |
| Jimmy Hicks v. Travelers Insurance Company
W2003-00768-SC-WCM-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 injured employee insists the trial court erred in disallowing his claim for failure to give timely written notice. As discussed below, the panel has concluded the evidence preponderates in favor of a finding that written notice was unnecessary because the employer had actual notice. The judgment of dismissal for lack of notice is therefore reversed, the trial court's conditional award of benefits is affirmed, and the cause is remanded for all purposes. Tenn. Code Ann. _ 5-6-225(e) (Supp 22.) Appeal as of Right; Judgment of the Chancery Court Reversed in Part; Affirmed in Part JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP. J., joined. James R. Krenis, Hill & Boren, Jackson, Tennessee, for the appellant, Jimmy Hicks Paul Todd Nicks, Walker Law Office, Memphis, Tennessee, for the appellee, Travelers Insurance Company MEMORANDUM OPINION The employee or claimant, Jimmy Hicks, initiated this civil action against his employer's former insurance carrier, Reliance, to recover workers' compensation benefits for work related carpal tunnel syndrome. Travelers was substituted for Reliance by amendment. Travelers denied liability for failure to give timely written notice and affirmatively averred the claim was barred by the statute of limitations. After a trial on the merits, the trial court, noting that it had "struggled" with the issue, disallowed the claim upon a finding that "there was not proper notice given." The conclusion was based on a decision contained in an unpublished opinion. As to the statute of limitations issue, the trial court concluded that it was "not really an issue and is not dispositive of this case." The trial court also issued a conditional award of benefits. Mr. Hicks has appealed, seeking review only of the trial court's finding that he failed to give proper notice of his injury. 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, 178 (Tenn. 1999). The essential facts are undisputed. The claimant is approximately fifty-three years old with a high school education and experience as a factory worker. He worked for the employer, Dyersburg Fabrics, for over 3 years in jobs requiring repetitive use of the hands and arms. He first reported discomfort in his hands in 1995 and the employer provided him with splints to wear while working. He did not know at the time that the condition was work related or was a permanent condition, but he told the employer what he did know, that he was having pain at work. He continued working and, in 2, visited Dr. Michael Roland, who ordered a nerve conduction study. The test revealed carpal tunnel syndrome. Dr. Roland referred the claimant to Dr. Gary Kellett, whom the claimant told he thought the condition might be related to his work. Dr. Kellett recommended surgery. Notwithstanding that recommendation, the claimant continued working for Dyersburg Fabrics until the plant closed in August 21. Shortly after the plant closure, the claimant contacted Travelers, the employer's insurer, seeking workers' compensation benefits. Travelers denied the claim as being barred by the statute of limitations. Surgery was eventually performed by Dr. Lowell Stonecipher. The claimant testified that he did not tell the employer about his visit to Dr. Kellett on April 17, 2. He stated that he did have an idea, at that time, that his injury could be work related, but had no such idea in 1995, when he first reported his pain to the employer. He was able to work until December 1, 21, when surgery was performed. Travelers had actual notice of the claim before the surgery was done. Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer has actual knowledge of the accident, give written notice of the injury to his employer. Tenn. Code Ann. _ 5-6-21 (a). From the undisputed facts of this case, we are persuaded the employer had actual notice of the claimant's injury, or at least as much knowledge as he was able to articulate, as early as 1995, when he first reported to the employer that his arms were hurting at work and the employer provided him with -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:J. Steven Stafford, Chancellor |
Dyer County | Workers Compensation Panel | 04/07/04 | |
| Helen M. Ashford v. The Aerostructures Corporation, et al.
M2002-01276-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 to the Supreme Court of findings of fact and conclusions of law. The trial court found that employee had sustained a permanent partial disability of 9% to the body as a whole as a result of the gradual injury she sustained during her employment and that the events on December 7, 1999, aggravated a preexisting lung condition. The trial court awarded workers' compensation benefits in the lump sum amount of $188,632.8, along with certain discretionary costs. The trial court also allowed employer a setoff for medical benefits in the amount of $3,36.37 but disallowed setoff for disability benefits. We find no error and affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (2 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed ALLEN W. WALLACE, SR. J., in which ADOLPHO A. BIRCH, JR., J. and JOE C. LOSER, JR., SP. J., joined. Stephen W. Elliott, Nashville, Tennessee, for appellants, The Aerostructures Corporation and Travelers Property Casualty. William Edward Farmer, Lebanon, Tennessee, for appellee, Helen M. Ashford. MEMORANDUM OPINION FACTS This cause of action originated from a complaint filed by employee, Helen M. Ashford, on May 26, 2. Employee worked for employer, Aerostructures Corporation, from 1981 until her injury on December 7, 1999. During this period of time employee was responsible for cleaning and painting various airplane structures. As a result, she used paint, acetone, and other solvents on a regular basis. At the time of her injury, employee suffered from a pre-existing lung condition of chronic obstructive pulmonary disease. Employee was also a chronic smoker. On December 7, 1999, employee was working with two other employees, Jerry Keeton and Kay Walker, on an aircraft panel. Employee was shaving rivets when suddenly she and the other employees were overcome by some type of chemical that went into her nose and "burnt [her] lungs." She turned a fan around in an attempt to blow the chemicals away from her. She and fellow employee, Kay Walker, then went outside the building. Employee stayed outside approximately fifteen to twenty minutes before going back inside to resume her work. Employee stated that she had difficulty breathing and had to go back outside more times to get away from the fumes. On December 8, 1999, employee did not go to work. When employee returned to work on December 9, 1999, she was once again overcome by dust and fumes. Employee was taken by fellow employees to the nurse's station. Employee went to the hospital and later to her family physician, Dr. Bachstein. Dr. Bachstein testified that his findings on December 13, 1999, were consistent with someone who had encountered chemical fumes and breathed them into their lungs. Employee returned to work in January 2, worked only a few days and has not worked since. Employee's family doctor, Dr. Bachstein, later referred her to a pulmonary specialist, Dr. Frederick Dow. Dr. Dow determined that employee had a permanent lung condition related to her exposure to fumes in December 1999. He testified that the fume incident more than likely substantially aggravated her preexisting lung condition. He informed employee that she should not return to work where she would be exposed to smoke, fumes, or vapors. ANALYSIS Employee's treating physicians, Dr. James Bachstein and Dr. Frederick Dow, both testified that employee had a prior lung condition of chronic obstructive pulmonary disease. They testified that she was working regularly and the events of December 7, 1999, aggravated and exacerbated her condition, and except for this incident, employee would have continued to work for several more years. Dr. James D. Snell, Jr., performed an independent medical evaluation for employer and disagreed with the findings of Dr. Bachstein and Dr. Dow. However, Dr. Snell acknowledged that fumes at employee's work could have aggravated her previous lung condition. Obviously, the trial court accepted the testimony of the treating physicians. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Allen W. Wallace, Sr. J.
Originating Judge:C. K. Smith, Chancellor |
Wilson County | Workers Compensation Panel | 03/29/04 | |
| Tony Bilbrey v. Kenneth O. Lester Co., Inc.
M2003-00649-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) to hear and report to the Supreme Court Findings of Fact and Conclusions of Law. The trial court found that the employer had made voluntary medical payments within one year of the filing of suit; that the statute of limitations had not expired; and that the plaintiff suffered a work related back injury. The trial court fixed plaintiff's disability at 22-1/2 percent to the body as a whole. We affirm the judgment of the trial court. Tenn. Code Ann. 5-6-225(e) (1999); Appeal as of Right: Judgment of the Circuit Court is affirmed JOHN A. TURNBULL, Sp. J. in which FRANK DROWOTA C.J., and HOWELL N. PEOPLES, SP. J., joined. John R. Lewis, Nashville, Tennessee, for Appellant, Kenneth O. Lester Co., Inc. Anthony E. Hagan, Lebanon, Tennessee, for Appellee, Tony Bilbrey. OPINION Tony Bilbrey filed this workers' compensation action on May 21, 1998. In his complaint, he alleged that he suffered a back injury on November 12, 1996 as he was unloading a truck in Marietta, Georgia, while making a delivery for his employer, Kenneth O. Lester Co., Inc. Bilbrey testified that he reported his injury to one of his dispatcher / supervisors (either Midgett or McKee) immediately upon returning to Tennessee. Bilbrey further testified that his supervisor advised him that Mr. Roberts, the employer's workers' compensation supervisor, would set up an appointment for him with Dr. Roy Johnson. Although Bilbrey testified that he did not speak directly to Roberts, someone with the employer made an appointment for him with Dr. Johnson for December 24, 1996. Bilbrey was advised of and kept this appointment. Bilbrey saw Dr. Johnson "six or eight times." On November 1, 1997, Dr. Johnson referred Bilbrey to Dr. Robert Stein, an orthopedic surgeon. Dr. Johnson's medical records indicated that the employer had authorized treatment and that Bilbrey's medical bills were paid, some by the employer and some by Kemper, the employer's workers' compensation insurer. Dr. Stein saw Mr. Bilbrey for an orthopedic consultation on November 17, 1997. Dr. Stein found no compression fracture but believed that Bilbrey was symptomatic from an acute nerve impingement. From the history conveyed by the patient, Dr. Stein related Bilbrey's condition to the November, 1996 injury. Dr. Stein fixed Bilbrey's impairment at three percent to the body as a whole. Mr. Bilbrey was later treated by Dr. Roy Terry, an orthopedic surgeon in Lebanon, who found a compression fracture of L5-S1, which he also related by history, to the November, 1996 injury. Dr. Terry assigned Bilbrey a permanent impairment rating of fifteen percent to the body. Bilbrey's testimony that he was injured on November 12, 1996 sharply conflicted with the testimony of his co-driver, Randy Short. The trip logs indicate that Short accompanied Bilbrey on his deliveries to Marietta, Georgia on November 12, 1996. Short remembered no fall or apparent injury suffered by Bilbrey during this trip, but testified that Bilbrey had complained that "his back was bothering him from cutting some cedar trees or something on his place." Bilbrey's testimony that he reported the injury to Midgett or McKee also conflicted with the testimony of each of those supervisors. Each testified that Bilbrey did not report an injury and that they made no arrangement for a doctor's appointment for Bilbrey. Roberts, the employer's workers' compensation supervisor, also denied making a medical appointment for Bilbrey or authorizing his treatment. He conceded, however, that someone from Lester may have authorized treatment.
Authoring Judge: John A. Turnbull, Sp. J.
Originating Judge:The Hon. J. O. Bond, Judge |
Wilson County | Workers Compensation Panel | 03/29/04 | |
| Robert W. Kelley v. Lumbermens Mutual Casualty
M2003-00773-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The trial court found the claim to be barred by the statute of limitations. We affirm.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:John W. Rollins, Chancellor |
Wilson County | Workers Compensation Panel | 03/29/04 | |
| Bonnie Gross v. St. Thomas Hospital,
M2002-02107-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. Section 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff, employee, appeals from a judgment in favor of the defendant, employer, which found employee's present medical condition and injury to her cervical spine was not a continuation of her original injury of January 18, 1999. The court, therefore, denied employee's claim for medical benefits and an increase in vocational disability. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (2 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed ALLEN W. WALLACE, SR. J., in which ADOLPHO A. BIRCH, JR., J. and JOE C. LOSER, JR., SP. J., joined. Gregory Lee Groth, Cookeville, Tennessee, for appellant, Bonnie Gross David Randall Mantooth, Nashville, Tennessee, for appellee, St. Thomas Hospital MEMORANDUM OPINION FACTS On January 18, 1999, employee, a Licensed Practical Nurse, injured her neck when she helped a patient into a wheelchair. As a result of this injury, she was treated by Dr. Stanley Chunn and Dr. M. Robert Weiss operated on the C6-7 level only, and did not perform surgery on the C5-6 level. On August 19, 1999, employee and employer, St. Thomas Hospital, filed a joint petition in the trial court seeking approval of a workers' compensation settlement agreement. Under the agreement, employee received a 2% permanent partial disability benefit and future authorized, necessary, and reasonable medical benefits relating to the injury. Employee continued to have neck pain and on a scale of 1 to 1, her pain was approximately a 4. These were left side symptoms about 5 months after reaching maximum medical improvement. She then went to work with Home Care Solutions, and was doing repetitive work and her pain increased to 1 on a scale of 1 to 1. This was in March, 2. Employer denied her application for benefits, and she then went back to Dr. Chunn who referred her to Dr. Leonardo Rodriquez Cruz, who performed surgery on C5-6 which relieved her pain and she went back to a pain level of 4 on a scale of 1 to 1. This controversy has developed into differences among medical experts. Dr. Chunn, Dr. James B. Talmage and Dr. Cruz testified that the employee's medical condition is a continuation of her injury of January 18, 1999. Dr. Chunn is Board certified in internal medicine, and employee is employed as a nurse in his office. Dr. Cruz and Dr. Weiss are neurosurgeons. Dr. Talmage is also a neurosurgeon, and performed an independent medical evaluation on employee. Dr. Weiss opined that employee's condition was not related to her injury of January 18, 1999, but was the result of a new injury or some other cause. ANALYSES 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) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Allen W. Wallace, Sr. J.
Originating Judge:Irvin Kilcrease, Chancellor |
Davidson County | Workers Compensation Panel | 03/26/04 | |
| Marcina Jelks v. The Travelers Insurance Co.
W2003-00927-SC-WCM-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 questions the trial court's findings as to permanency and extent of vocational disability. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP. J., joined. Kevin J. Youngberg and Zach C. Luttrell, Allen, Kopet & Associates, Jackson, Tennessee, for the appellant, The Travelers Insurance Company David Hardee, Hardee & Martin, Jackson, Tennessee, for the appellee, Marcina Jelks MEMORANDUM OPINION The employee or claimant, Ms. Jelks, initiated this civil action to recover workers' compensation benefits for a work related injury. The Travelers Insurance Company, insurer of the employer, denied liability. After a trial on the merits, the trial court resolved the issues in favor of the claimant and awarded, inter alia, permanent partial disability benefits based on 25 percent to the body as a whole. Travelers has appealed. 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, 178 (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). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). The claimant was working at a food processing plant on November 17, 1999, when she slipped and fell on a wet floor, injuring her low back, neck, right knee and right hip. She had immediate pain, which persists. She was conservatively treated by Dr. Keith Douglas Nord for a cervical and lumbo-sacral back strain. Dr. Nord recommended restricted duty, ordered a nerve conduction study and made a return appointment. The doctor continued seeing the claimant at least until January 15, 21, but testified that she had long since reached maximum medical improvement. He estimated her permanent impairment to be none for the back and neck injury, but conceded she was permanently impaired in her right knee and shoulder. On March 7, 21, Ms. Jelks visited another orthopedic surgeon, Dr. Robert Barnett, who had evaluated her following a previous injury, to be evaluated for her present injury. As part of his examination, Dr. Barnett viewed x-rays taken following the November 1999 accident, compared them with earlier x-rays and determined that there had been anatomic changes in the claimant's low back. Based on his findings, Dr. Barnett assigned an impairment rating of 5 percent to the whole person for the low back injury. The injury was superimposed on her previous injury. The appellant first contends there should be no award of permanent disability benefits because the claimant merely suffered increased pain with no anatomic change, relying solely on Dr. Nord's testimony that there was no anatomic change in the claimant's neck or low back. The argument ignores the doctor's testimony concerning the claimant's right knee and right shoulder. It ignores Dr. Barnett's testimony altogether. The trial court did not err in considering Dr. Barnett's testimony that there was an anatomic change. Moreover, the argument overlooks the long standing principle that an employer takes an employee as the employee is, with all defects and diseases, and assumes the risk of having a weakened condition aggravated by an injury which might not affect a normal person. Modern Upholstered Chair Co. v. Russell, 518 S.W.2d 519, 522 (Tenn. 1974). From a fair interpretation of Dr. Barnett's testimony, the injury aggravated and worsened a pre-existing condition. The argument is without merit. The appellant next argues the trial court erred in awarding the equivalent of five times Dr. Barnett's medical impairment rating without making specific findings of fact. For injuries occurring -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:George R. Ellis, Chancellor |
Gibson County | Workers Compensation Panel | 03/16/04 | |
| Roger Raymond Desmarais v. The Bailey Company,
M2002-02637-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 employee insists the trial court erred in dismissing his claim. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Michael W. Ferrell, Mt. Juliet, Tennessee, for the appellant, Roger Raymond Desmarais D. Andrew Saulters, Nashville, Tennessee, for the appellee, The Bailey Company Paul G. Summers, Attorney General & Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellee, Second Injury Fund MEMORANDUM OPINION The employee or claimant, Mr. Desmarais, initiated this civil action to recover workers' compensation benefits. The employer, The Bailey Company, and the Second Injury Fund denied liability. After a trial on the merits, the trial court dismissed the claim for insufficient proof of a compensable injury by accident. The claimant has appealed. 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). The claimant began working for the employer in January 2 as a brick mason. He alleges that he felt back pain at work on April 24, 2, while lifting a cover on a forklift. There were no witnesses to the incident. The claimant received treatment from two different doctors, but continues to have back pain. Medical restrictions prevent him from returning to work for the employer. The claimant has a history of back problems. He suffered an injury in 1985, while working for another employer in Massachusetts. His workers' compensation claim was settled for $16,.. In May 1999, he suffered a second back injury for which he did not seek workers' compensation benefits. Diagnostic testing revealed a large herniated disc at L5-S1 following the 1999 injury. The record contains conflicting medical testimonyas to whether the claimant's present injury is work related. Dr. Thomas O'Brien, who treated the claimant, reported that the claimant did not inform him of the claimant's injuries of 1985 or 1999, when the medical history was taken. In addition, after comparing an MRI that was ordered in May 1999 with one ordered by Dr. Daniel McHugh in May 2, Dr. O'Brien testified that the reports of the MRIs were essentially the same and that there was no anatomic change revealed by comparing the two reports. Dr. David Gaw, an examining physician, opined that the claimed injury probably was causally related to the work the claimant was performing for the employer. However, Dr. Gaw was unaware of the claimant's 1999 injury. Moreover, when Dr. Gaw compared the two MRI reports, he agreed there was no significant difference between the two. Dr. Gaw also conceded that there were inconsistencies in the history given by the claimant. The claimant contends the trial court should have found his injury to be work related based upon medical testimony by Dr. Gaw that there could be some undetected nerve damage. The employer takes the employee with all pre-existing conditions, and cannot escape liability when the employee, upon suffering a work-related injury, incurs disability far greater than if the employee had not had the pre-existing conditions; but if work aggravates a pre- existing condition merely by increasing pain, there is no injury by accident. Kellerman v. Food Lion, 929 S.W.2d 333, 335 (Tenn. 1996) To be compensable, the pre-existing condition must be advanced, there must be an anatomic change in the pre-existing condition, or the employment must cause an actual progression of the underlying disease. Sweat v. Superior Industries, Inc., 966 S.W.2d 31, 32 (Tenn. 1998). From our independent examination of the record, the evidence fails to preponderate against the trial court's finding that the claimant did not suffer a compensable injury while working for the employer, as claimed. The finding was largely based on the claimant's lack of credibility. The claimant further contends the trial court erred in rejecting his testimony and accepting the testimony of medical experts that he gave them an incomplete history. The trial court explicitly found the claimant to be lacking in credibility. Where the trial judge has seen and heard the -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:C. K. Smith, Chancellor |
Wilson County | Workers Compensation Panel | 03/15/04 | |
| Wade Nance v. State Industries,
M2002-01762-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. Section 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This matter was initially tried by the trial court on November 29, 1999, and the trial court found in favor of employer/defendant State Industries due to employee's failure to use a mandated safety procedure. On appeal, the Workers' Compensation Panel articulated a new four-prong standard to be applied when employers assert the affirmative defense of willful failure or refusal to use a safety appliance. This case Wade Nance v. State Industries, Inc. and ITT Hartford Insurance Co., 33 S.W.3d 222 (Tenn. 2). The four prong test enumerated is as follows: (1) at the time of the injury the employer had in effect a policy requiring the employee's use of a particular safety devise; (2) the employer carried out strict, continuous and bona fide enforcement of the policy; (3) the employee had actual knowledge of the policy, including a knowledge of the danger involved in its violation, through training provided by the employer; and (4) the employee willfully and intentionally failed or refused to follow the established policy requiring use of the safety appliance. The panel concluded that the employer had carried its burden of proof on elements (1), (3) and (4), and remanded the case for a new trial on element (2), all as set out above. On July 15, 22, the case was tried again before the same judge and the court determined State Industries, employer, had satisfied its burden of proof on this issue, i.e. the employer carried out a strict, continuous and bona fide enforcement policy. As discussed below, the panel has concluded the evidence does not preponderate against the trial court's finding and we affirm. Tenn. Code Ann. _ 5-6-225(e) (2 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed ALLEN W. WALLACE, SR. J., in which ADOLPHO A. BIRCH, JR., J. and Joe C. Loser, Jr., Sp. J., joined. Donald D. Zuccarello, Nashville, Tennessee and Marcia D. McShane, Nashville, Tennessee, for appellant, Wade Nance Cynthia Debula Baines, Nashville, Tennessee, John Thomas Feeney, Nashville, Tennessee, and Shannon Elisabeth Poindexter, Nashville, Tennessee, for appellees, ITT Hartford Insurance Co. and State Industries, Inc. MEMORANDUM OPINION FACTS On June 7, 1998, complainant, employee, while performing his duties for employer as a greaser and oiler, suffered a fractured right ankle. Employee had positioned himself on a ladder approximately four to five feet off the floor and was attempting to grease a turn-roller machine located in the employer's paint shop. Another employee unexpectedly activated the turn-roller, causing the employee to fall, injuring his ankle. Employer required lock-out/ tag out safety procedure, and employee failed to use the procedure. The purpose of the lock- out/tag out procedure is to prevent a machine from being activated while being cleaned or otherwise maintained. Employer had such a safety procedure in their training manual which was disseminated to its employees. They further had training classes, and employee had received training on this procedure. Evidence in this case indicated some employees did not use this safety procedure even though they had a device on their person to initiate the procedure. Employer had in place a procedure for disciplinary violations ranging from a written reprimand to termination. ANALYSIS 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) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Allen W. Wallace, Sr. J.
Originating Judge:Leonard W. Martin, Chancellor |
Cheatham County | Workers Compensation Panel | 03/12/04 | |
| William R. Smothers v. Markel Lighting, Inc; Cigna
W2002-02933-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 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 that the Employee failed to give notice as required by TennesseeC.Annotated section 5- 6-21. We affirm.
Authoring Judge: Joe H. Walker, III, Sp.J.
Originating Judge:Julian P. Guinn, Judge |
Henry County | Workers Compensation Panel | 03/11/04 | |
| Henry Earl Campbell v. Jim Keras Buick Company and
W2003-00158-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee. Code Annotated section 5-6-225(e) (3) for hearing and reporting to the Supreme Court of the finding of fact and conclusions of law. The trial court found that the Employee failed to prove causation, failed to give notice as required by Tennessee Code Annotated section 5-6-21, and waived his right to worker's compensation benefits for a back injury. We affirm on the basis that Employee failed to prove causation and failed to prove notice. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE H. WALKER, III, SP.J., in which JUSTICE JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR.J., joined. James L. Gordon, Memphis, Tennessee, for the appellant, Henry Earl Campbell B. Duane Willis, Jackson, Tennessee, for the appellee, Jim Keras Buick Company and Great American Insurance Companies MEMORANDUM OPINION FACTUAL BACKGROUND Employee was 47 years of age, and had worked for the Employer for over twenty- five years. He has an eleventh grade education and a history of cleaning and detailing cars that Employer sells. Employee alleges that on June 1, 1998, he was getting in a car when his foot slipped, causing him to fall on his rear end and injure his back. 1 The Employee had a prior back injury in 1976, and a settlement was court- approved in 1977, awarding Employee benefits amounting to twenty percent permanent partial disability to the body as a whole. On May 17, 1978, Employee and Employer entered into a written agreement which acknowledges the prior injury and in which Employee agrees to not lift any heavy object which "could result or cause injury to my back." The agreement stated in part "my back was previously injured and under no condition will I hold Reed Keras Buick responsible for a back injury sustained on the job." Dr. Gary L. Kellett testified that he treated Employee in May 1997 for low back and right leg pain caused by a sneezing and coughing episode about a week before the office visit. The pain radiated down the right leg of Employee. Dr. Kellett recommended conservative treatment with exercises and medication. Dr. Kellett was aware of the prior disc operation and fusion Employee had and felt he was doing well prior to the sneeze. Employee alleges he was injured at work June 1, 1998. Dr. John P. Howser, neurosurgeon, testified that he examined Employee August 28, 1998, for back pain. Employee gave a history that approximately three months before the examination he sneezed and his foot slipped and he had the onset of back pain. His left leg had sharp pains which radiate to the back. Employee reported he had seen Dr. Kellett who gave him pain pills. Dr. Howser was aware of the past history of fusion surgery. Employee told Dr. Howser he had been doing well since the surgery until he sneezed. Examination revealed muscle spasm and restricted range of motion of the lumbar spine. He saw Employee during several visits and treated Employee with lumbar epidural and caudal epidural blocks, hamstring exercises, and facet blocks. Employee did not mention an injury at work during these visits. On December 21, 1998, Employee phoned and related he had an incident at work in May 1998, where he slipped on some chemicals on the floor and fell at work. Employee saw Dr. Howser again January 26, 1999, for an office visit. Dr. John Lindermuth, neurosurgeon, testified that he first saw Employee April 22, 1999. Employee gave a history of injury at work in May 1998. Dr. Lindermuth diagnosed failed back syndrome, based on Employee's previous surgery in 1976 with a good result, and then having re- injured himself. Employee testified at trial that he reported his fall and injury on June 1, 1988 to his supervisor, Steve Markle. Markle testified that Employee did not report a work- related injury on June 1, or any other day. He never filled out any worker's compensation forms, or referred Employee to a doctor. Employee has not returned to work at Employer's place of business, but has worked briefly at two other jobs. 2
Authoring Judge: Joe H. Walker, III, Sp.J.
Originating Judge:George H. Brown, Jr., Judge |
Henry County | Workers Compensation Panel | 03/10/04 | |
| Roger D. Reynolds v. Tennessee Municipal League Risk
W2003-00448-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 5-6-225(e) (3) for hearing and reporting to the Supreme Court of the finding of fact and conclusions of law. The trial court found that the Employee failed to prove causation and failed to give notice as required by Tennessee Code Annotated section 5-6-21. We affirm.
Authoring Judge: Joe H. Walker, III, Sp.J.
Originating Judge:William D. Acree, Jr., Judge |
Weakley County | Workers Compensation Panel | 03/10/04 | |
| Judith A. Johnson, Surviving Widow of David C. Johnson, et al. v. Robert B. Richardson, d/b/a Richardson Landscaping & Trucking
M2002-02968-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. The defendant/appellant has appealed the action of the trial court, which overruled his motion to set aside a default judgment under the provisions of Tenn. R. Civ. P., Rule 6. The standard of review is whether the trial court abused its discretion in denying the motion to set aside the judgment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Reversed and Remanded JOHN K. BYERS, SR. J., in which ADOLPHO A. BIRCH and WILLIAM C. KOCH, JJ., joined. Debra A. Wall, Clarksville, Tennessee, attorney for appellant, Robert B. Richardson. Timothy K. Barnes, Clarksville, Tennessee, attorney for appellee, Judith A. Johnson, Kimberly Ann Mahoney and Sean Patrick Mahoney. MEMORANDUM OPINION Facts The plaintiffs brought this compensation suit to recover benefits under the Workers' Compensation Act as a result of an accident on July 22, 1994 in which her husband and the step- father of the two minor children was killed. The suit was filed on September 7, 1994. The defendant subsequently filed a motion for summary judgment. On December 3, 1994 the trial judge overruled the motion for summary judgment. There are no orders in the record before us from the date of the overruling of the summary judgment on December 3, 1994 until the entry of the default judgment which was entered on September 7, 21. The plaintiffs were awarded $167,832.. Subsequent to the order amending the motion for a summary judgment, the defendant filed a petition in the federal court declaring bankruptcy. This stayed the proceedings in the trial court. On August 1, 21, the defendant filed a motion to have a default judgment set aside which he averred was entered on May 25, 21. The motion further avers that on May 1, 21 the trial judge ordered the plaintiff to "place a document in the court file evidencing this matter had been removed from bankruptcy court" and the defendant further avers the plaintiff did not place said document in the file prior to May 25, 21, as directed by the trial judge. On the record before this court is a document designating notice as an order entered in the United States Bankruptcy Court granting relief from a stay of the proceedings in the Bankruptcy Court. This document recites that the relief from the automatic stay of this case was granted on October 2, 1998. Marked on the order was the notation "Received for Entry,"nunc pro tunc to 1/2/98." This appears to be placed there by the Bankruptcy Court. The order also shows a stamp which is "21 August 23 a.m. 9:32." This also appears to be an entry by the Bankruptcy Court. There is nothing in the record to show when this order was placed in the record in this case. There are no orders in the record memorializing any proceedings being held in the trial court on either May 1, 21 or May 25, 21. On September 7, 21 the trial judge entered a default judgment against the defendant in favor of the plaintiffs. The order recited that defendant was not present despite being duly notified of said court date. The order, approved by plaintiff's attorney for entry has a certification of service thereof on defendant's attorney which is undated. On September 19, 22, the plaintiff filed a "supplemental response to the motion to set aside the default judgment." (There is not another response to the motion to set aside the default judgment in the record.) On October 1, 21, the defendant filed another motion to have the default judgment set aside. This motions was accompanied by an affidavit from the defendant. Also on October 1, 21, the defendant filed a motion seeking to have the operation and effect of the default judgment suspended. On October 25, 22, the trial court entered an order denying the defendant's motion to set -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Allen W. Wallace, Judge |
Johnson County | Workers Compensation Panel | 03/05/04 | |
| Deborah Johnson v. Marshall Manufacturing Corp.,
M2003-00921-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 appellant, Federated Insurance Company, insists the trial court erred in determining, as a matter of law, that it was liable for the payment of workers' compensation benefits and in summarily dismissing the case as to Liberty Mutual Insurance Company. As discussed below, the panel has found no reversible error and concluded that Federated is liable under the successive injury rule. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR, SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Gordon C. Aulgur, Brewer, Krause & Brooks, Nashville, Tennessee, for the appellant, Federated Insurance Company Lee Anne Murray, Feeney & Murray, Nashville, Tennessee, for the appellee, Marshall Manufacturing Corporation Emil L. Storey, Jr. and Deborah A. Toon, Donald D. Zuccarello, Nashville, Tennessee, for the appellee, Deborah Johnson MEMORANDUM OPINION The employee or claimant, Deborah Johnson, has worked for the employer, Marshall Manufacturing Corporation, since 1979. She gradually developed pain and numbness in both hands and was diagnosed with mild carpal tunnel syndrome. The employer's insurer, Liberty Mutual, accepted the claim and provided medical benefits. The claimant continued working. On April 16, 2, Federated Insurance succeeded Liberty Mutual as the employer's workers' compensation insurance carrier. On August 21, 2, the claimant underwent corrective surgery for her carpal tunnel syndrome and was disabled from working. Liberty Mutual paid for the surgery but has refused to pay medical or disability benefits after that date. So has Federated. Ms. Johnson sued both carriers and the employer for the benefits provided by law. On Liberty Mutual's motion for summary judgment, the trial court dismissed the claim against Liberty Mutual and awarded Liberty Mutual a judgment against Federated for expenditures made by Liberty Mutual on behalf of the claimant. The trial court further concluded from the undisputed facts that Federated was liable to the claimant for benefits. Federated has appealed. 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, 178 (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). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). Where an employee is permanently disabled as a result of a combination of two or more accidents occurring at different times and while the employee was working for different employers, the employer for whom the employee was working at the time of the most recent accident is generally liable for permanent disability benefits. Baxter v. Smith, 211 Tenn. 347, 364 S.W.2d 936 (1962). The same doctrine applies where the employee's permanent disability results from successive injuries while the employee is working for the same employer, but the employer has changed insurance carriers. Bennett v. Howard Johnson's Motor Lodge, 714 S.W.2d 273 (Tenn. 1986). The carrier which provided coverage at the time of the last injury is liable for the payment of permanent disability benefits. Where a condition develops gradually over a period of time resulting in a definite, work-connected, unexpected, fortuitous injury, it is compensable as an injury by accident. Brown Shoe Co. v. Reed, 29 Tenn. 16, 35 S.W.2d 65 (1961). In such cases, the date of injury has been fixed as of the date on which the claimant was forced to quit work because of severe pain. Lawson v. Lear Seating Corp., 944 S.W.2d 34 (Tenn. 1997); Barker v. Home-Crest Corp., 85 S.W.2d 373, 374 (Tenn. 1991); Central Motor Exp. v. Burney, 214 Tenn. 118, 377 S.W.2d 947 (1964). In Barker, where the claimant also suffered a gradually occurring injury, this court held the insurer which provided coverage on the day the employee last worked was liable for -2-
Authoring Judge: Joe C. Loser, Jr, Sp. J.
Originating Judge:J. B. Cox, Chancellor |
Johnson County | Workers Compensation Panel | 03/02/04 | |
| June Betty Williams v. Saturn Corporation
M2002-02916-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel 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. The employer appeals the judgment of the trial court awarding the employee 2% permanent partial disability to the body as a whole for work-related injuries to both shoulders, and denying a set-off for disability payments paid under an employer-funded plan. The employer contends that the trial court erred: 1) in basing the employee's award on an anatomical impairment rating not based entirely on the AMA Guides; and 2) in not granting a set-off for disability payments paid by the employer pursuant to Tenn. Code Ann. _ 5-6- 114(b). We hold that the evidence does not preponderate against the trial court's findings as to anatomical and vocational disability. Accordingly, the judgment of the trial court is affirmed as to this issue. We find that this case should be remanded for further proceedings on the issue of whether a set-off is warranted in this case. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed in Part; and Remanded JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J., and JOE C. LOSER, JR.,SP.J., joined. Thomas H. Peebles, IV, Columbia, Tennessee, for the appellant Saturn Corporation. Michael D. Dillon, Nashville, Tennessee, for the appellee June Betty Williams. MEMORANDUM OPINION Ms. June Williams was 44 years old at the time of trial. She has a 12th grade education and completed a medical assistant course. She began working for General Motors in 1977 and worked as a punch press operator or assembly line worker for 1 to 11 years there. During layoffs from GM, she worked in fast food restaurants and worked one year as a medical office assistant. In 1991, Ms. Williams moved to Tennessee to work for Saturn Corporation. She worked on the assembly line using torque guns and doing other repetitive work with her arms above shoulder level. She gradually developed aching and soreness in her shoulders and shoulder blade area. After being treated for several years at the clinic at Saturn, she was eventually referred to Dr. Jeffery Adams, orthopedic surgeon, for treatment. When conservative treatment did not resolve her symptoms, she had surgery on her right shoulder for tendinitis of the biceps tendon on February 23, 1999. She had 2 surgeries on her left shoulder _ one for a labrum tear on June 22, 1999, and an arthroscopic synovectomy on January 19, 2. Her last day of work prior to surgery was February 8, 1999. On September 19, 2,1 Dr. David Gaw, M.D., evaluated Ms. Williams and found that her injuries were caused by her work activities. He assigned permanent restrictions which included avoiding frequent or continuous overhead or outstretched use of the hands for pushing, pulling or lifting. Dr. Gaw assigned a 4% anatomical impairment to the body as a whole for each shoulder, for a combined 8% anatomical impairment rating. He based this rating on minimal loss of motion and change in anatomy due to the 3 surgical procedures.2 Dr. Gaw acknowledged that the AMA Guides do not specifically cover the surgical procedures undergone by Ms. Williams: Well, this is one of those conditions which is not specifically covered by the Guides. There's nothing in there that says debridement of the labrum or cutting the biceps tendon and moving it around, but it's _ I think it has to do with just experience or understanding the physiology or explaining this lady's loss of function. I think that's, in my opinion, a minimal impairment, but certainly there has been some change in this person's anatomy of the shoulder. On January 8, 21, Ms. Williams returned to work at Saturn test-driving cars, a job that is within her medical restrictions, but she has concerns about low job seniority in this position. The surgical procedures significantly reduced her pain, but she "still has some trouble" when she uses her arms in an overhead position. She can not lift either arm for very long and still has pain when doing certain activities. She now has difficulty in holding the phone with her right arm, putting on clothes, and getting in or out of a bathtub. Ms. Williams is now limited in such activities as painting her house, gardening and bowling. Two vocational experts testified at trial. Ms. Patsy Bramlett assigned a 1% vocational 1He testified at his deposition that she reached maximum medical improvement on this date. 2Dr. Gaw assigned 2% to the right upper extremity and 1% to the left upper extremity for loss of motion based on pp. 43-45 of the AM A Guides. He assigned 5% impairment to each upper extremity for the surgical procedures. -2-
Authoring Judge: James L. Weatherford, Sr.J.
Originating Judge:Stella L. Hargrove, Chancellor |
Maury County | Workers Compensation Panel | 03/02/04 | |
| Darcus Williams v. Metropolitan Government of
M2002-03038-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel 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. The employer appeals the trial court's judgment that the employee suffered an injury arising out of and in the course and scope of her employment when the employee left her work station to go to a break area on the employer's premises to hand some money to her friend to repair her car and slipped in a puddle of water and injured her back as she was about to re-enter the building. The employee contends that the trial court erred in finding the employee suffered only a 2% anatomical impairment and a 4% vocational disability for this injury. The panel has concluded that the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed JAMES L. WEATHERFORD, SR. J., in which JANICE M. HOLDER, J., and JOE C. LOSER, SP.J., joined. Aundreas Wattley-Smith, Nashville, Tennessee, for the appellant Metropolitan Government of Nashville and Davidson County, Tennessee Acting By and Through The Electric Power Board Through Said Government a/k/a Nashville Electric Service. Jerry D. Mayo, Nashville, Tennessee, for the appellee Darcus Williams. MEMORANDUM OPINION Ms. Darcus Williams was 42 years old at the time of trial. She is a single mother with two children ages 25 and 11. She graduated from high school and has taken college courses. She had worked as a file clerk for a bank and a university before she began working for Nashville Electric Service ("NES") in July 1987 as a clerk typist. She had also worked for 5 years at the Hyatt Regency as a reservations agent and catering coordinator. Ms. Williams also worked a second part-time job during holidays and other times during her employment with NES. The main NES building has a back entrance with a concrete porch and a chain link fence beside it. There is a picnic table in this area and employees take breaks there and use this area to smoke. It is also a poplar area for employees to be dropped off and picked up from work. Employees use this entrance to go to other buildings on the NES property. According to Ms. Williams, it is common practice for employees to stand on the porch and receive items such as lunch, papers, money or clothes from friends or family members who are on the outside of the fence. NES security guards or supervisors had never told her that this activity was prohibited. Mr. Robert Mansolino, NES employee safety and health manager, testified: "I think it's pretty common for employees to go out that back door to carry on business or go to their personal vehicle or whatever." He was not aware of any NES rule prohibiting employee use of this area. On December 28, 2, Ms. Williams had problems with her car and had a friend drop her off at work. During work hours she needed to give some money to her friend to get her car repaired. She arranged to meet him at the chain link fence near the back door of the main NES building so she could hand him the money. At about 1:3 a.m. she left her workstation and went down to deliver the money. After giving the cash to her friend at the fence, she turned and reached for the door to the building when she slipped in a puddle of a slimy, watery substance and fell. Her friend called the security guard and she reported to the nurses' station complaining of low back pain that radiated to her left leg. A January 4, 21, MRI indicated a lumbar disc protrusion. After conservative treatment failed, Dr. Thomas O'Brien, an orthopedic surgeon, performed a 2-level laminectomy and fusion. Her pain and radicular symptoms did not resolve and a second MRI showed scar and granulated tissue surrounding the nerve root. Dr. O'Brien found that she had sustained a 13% anatomical impairment rating.1 He stated that he expected her to "have some ongoing permanent discomfort in her leg as a result of scarring and intrinsic nerve damage present pre-operatively." He imposed permanent restrictions of "no lifting greater that 25 pounds and limited bending and stooping." He felt she could return to her job as a clerk typist. Dr. David Gaw, an orthopedic specialist, performed an independent medical evaluation and assigned a 22% anatomical impairment rating to the body as a whole based on the AMA Guides 5th Edition. He disagreed with Dr. O'Brien's 13% rating because Dr. O'Brien did not utilize the range 1Dr. O'Brien acknowledged that he did not follow the AMA Guides' range of motion protocols because he felt it would not give a valid impairment rating due to M s. W illiams' inconsistent results on her functional capacity evaluation. -2-
Authoring Judge: James L. Weatherford, Sr. J.
Originating Judge:Walter C. Kurtz, Judge |
Davidson County | Workers Compensation Panel | 03/01/04 | |
| Hameed Alfaraj v. S-3 Perspectives, Inc., d/b/a Express
M2003-00455-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel 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. The employer appeals the judgment of the trial court finding that the employee sustained a work-related injury resulting in a 5% anatomical impairment and a 95% vocational disability to his right upper extremity. The employer contends that the evidence preponderates against a finding that the employee suffered from carpal tunnel syndrome; and that the trial court erred in relying on the testimony of the employee's medical expert. The panel has concluded that the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed. JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J., and JOE C. LOSER, JR., Sp.J., joined. Stanley A. Davis, Nashville, Tennessee, for the appellee Hameed Alfaraj. Dale A. Tipps, Nashville, Tennessee, for the appellant, S-3 Perspectives, Inc., d/b/a/ Express Personnel Services. MEMORANDUM OPINION Mr. Hameed Alfaraj was 36 years old at the time of trial. He is an Iraqi who left his country after taking part in the uprising against Saddam Hussein during the Gulf War. He immigrated to the United States in 1996. He had 6 years of elementary education but is very weak in reading or writing Arabic. He cannot speak English. All of his jobs in the past have involved some type of manual labor and he has no job skills. On September 15, 2, Mr. Alfaraj injured his right hand while working for Express Personnel Services (Express). Mr. Alfaraj was lifting boxes weighing approximately 5 pounds each when he heard a loud pop and immediately felt pain in the wrist and palm of his right hand. He also saw a ball-like mass appear on his hand. He reported the injury to his employer and picked Dr. Barry Callahan from a panel of three physicians. On October 12, 2, Dr. Callahan, a board-certified orthopedic surgeon, diagnosed a ganglion cyst and recommended excision. Mr. Alfaraj also had a positive Tinel's sign and Phalen's maneuver. According to Dr. Callahan's records, Mr. Alfaraj reported that he sometimes had "some parenthesias when he had prolonged gripping or lifting. This has been present for 3-4 months and likely predates the onset of this mass." Dr. Callahan noted that "[h]e may have some carpal tunnel symptoms" and that releasing the carpal canal "would hopefully prevent future problems." He recommended a carpal tunnel release through the same incision for the excision of the ganglion cyst "and informed [Mr. Alfaraj through an interpreter] I would not get an EMG simply because the addition of release of the transverse carpal ligament through the FCR tunnel would not add any morbidity to the ganglion excision." On October 23, 2, Dr. Callahan performed the ganglion excision and a carpel tunnel release. In his operative report, Dr. Callahan noted Mr. Alfaraj "also reported some minor numbness and tingling in the median nerve distribution of his fingers and in addition to his mass had all the findings of carpal tunnel syndrome." In his deposition, Dr. Callahan stated he never made a diagnosis of carpal tunnel syndrome due to lack of symptoms. He compared doing the carpal tunnel release to "doing bowel surgery and taking out an appendix. You're probably going to head something off at the pass." He pointed out that you release half of the ligament taking out the cyst so it would be "absurd" not to release the rest of it. He characterized Mr. Alfaraj's carpal tunnel symptoms as equivocal or inconclusive because he did not have a positive median nerve compression test. However, Dr. Callahan did not order such a test prior to surgery. On December 5, 2, Dr. Callahan found that Mr. Alfaraj had regained full wrist mobility, assessed Mr. Alfaraj's wrist as having no objective loss and gave him a % impairment rating. Dr. Callahan later released Mr. Alfaraj from his care with no restrictions. On February 22, 21, he returned to Dr. Callahan complaining of pain in his wrist and hand while trying to sleep. Dr. Callahan provided him with a splint but still felt he had no objective loss. An EMG returned normal results. On January 14, 22, Mr. Alfaraj sought additional treatment from Dr. Choudhury Salekin, the Chief of Neurology at Veterans Administration Medical Center in Murfreesboro who has a part- -2-
Authoring Judge: James L. Weatherford, Sr.J.
Originating Judge:Robert E. Corlew, Judge |
Rutherford County | Workers Compensation Panel | 02/27/04 | |
| Floyd Bouldin v. Warren County Sheriff's Department
M2003-00602-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). Defendant challenges the admission of expert medical opinion as based on erroneous records and insists the amount of the award is excessive because it exceeds the two and one-half times cap. 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 A. TURNBULL, Sp. J. in which FRANK DROWOTA C.J., and HOWELL PEOPLES, SP. J., joined. Larry B. Stanley, McMinnville, Tennessee, for Appellants, Warren County Sheriff's Department and Warren County, Tennessee. Barry Medley, McMinnville, Tennessee, for Appellee, Floyd Bouldin. OPINION I. Facts and Procedural Background The seventy-one year old plaintiff, Floyd Bouldin, worked for the Warren County Sheriff's Department as a transportation officer and court bailiff. On April 1, 21, Bouldin was transporting a prisoner when the prisoner became unruly, scuffled with Bouldin and wrenched his left arm and shoulder. Bouldin, upon his report of injury, was referred by his employer to Dr. Donald M. Arms, a local orthopedic surgeon, who had previously seen Bouldin for other ailments. Dr. Arms diagnosed a torn rotator cuff and initially treated him conservatively. When the injury did not respond, surgery was performed on July 16, 21. Even though the MRI had demonstrated a probable partial rotator cuff tear, during surgery Dr. Arms found no rotator cuff tear. Instead, he found severe degenerative arthritis in the shoulder joint. Dr. Arms performed an open distal clavicle excision (removing the arthritic end of the collar bone) and cleaned out the arthritis and bursitis in the shoulder joint. Since Bouldin had not suffered shoulder symptoms before the trauma of April 1, 21, Dr. Arms testified: "I'm at least 51 percent sure that the trauma ... led to his symptoms," ... "the pain and symptoms that he had and the need for surgery is the result of his work injury." Mr. Bouldin returned to work at a lighter duty job and worked for approximately eight months guarding prisoners in the exercise yard and on clean up duties, and transporting prisoners to court sessions in which he acted as bailiff. Mr. Bouldin resigned his employment on July 31, 22, two years before his county retirement would have vested. Mr. Bouldin stated, and his wife confirmed, that he quit because his shoulder and arm were so weak he could not safely perform his duties; he feared his condition could place himself and others in danger. Dr. Arms assigned a seven percent permanent partial impairment to the body when he last saw Bouldin in December 21. Not satisfied with that rating, Bouldin's attorney referred him to Dr. Robert Landsberg for an independent medical exam which was performed on August 21, 22. Dr. Landsberg reviewed Dr. Arms records in which Dr. Arms had indicated a partial rotator cuff tear, and assumed that Dr. Arms had, in fact, found the rotator cuff tear during his surgery. Dr. Landsberg did not, and could not have known, that Dr. Arms would later testify that he found no rotator cuff tear during surgery. Dr. Landsberg found decreased strength and loss of motion and was of the opinion that the AMA Guides to the Evaluation of Permanent Impairment 5th edition required impairments of six percent to the extremity for decreased range of motion and three percent to the extremity for loss of strength in addition to the ten percent extremity impairment for the distal clavicle resection. Dr. Landsberg combined these extremity impairments, and related them to the body as a whole for an eleven percent permanent partial impairment rating. In addition, Dr. Landsberg assigned significant left arm restrictions: no lifting over five pounds above the shoulder, avoid repetitive reaching to -1-
Authoring Judge: John A. Turnbull, Sp. J.
Originating Judge:The Hon. John Rollins, Judge |
Warren County | Workers Compensation Panel | 02/26/04 | |
| Michael Wayne Phillips v. Liberty Mutual Insurance
M2003-00855-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. The trial court found plaintiff suffered a compensable injury to his back, sustained a forty-eight percent permanent partial disability to the body as a whole, suffered a compensable carpal tunnel injury to his right arm, and sustained a twenty-five percent permanent partial disability to the right arm. The employer challenges the compensability of the arm injury and the amount of each award. We affirm the judgment of the trial court. Tenn. Code Ann. 5-6-225(e) (1999); Appeal as of Right: Judgment of the Circuit Court is affirmed JOHN A. TURNBULL, Sp. J. in which FRANK DROWOTA C.J., and HOWELL PEOPLES, SP. J., joined. David T. Hooper, Brentwood, Tennessee, for Liberty Mutual Insurance Company and United Parcel Service, Inc., Appellants. William Joseph Butler and E. Guy Holliman, McMinnville, Tennessee, for Michael Wayne Phillips, Appellee. OPINION I. Facts and Procedural Background Michael Wayne Phillips, age 43, had been working for United Parcel Service (U.P.S.) for thirteen years when he injured his back and right arm on December 3, 21. As a part of his job driving tractor trailers, Phillips was required to manipulate a heavy dolly into position between two trailers to connect them. While moving the dolly, Phillips felt a stabbing pain in his back and subsequently felt symptoms in his right arm, hand, leg and foot. Phillips had suffered a previous injury to his back while working for U.P.S. in 1994, but had recovered without disability. Mr. Phillips gave immediate notice of his injury and was referred to a local physician. He was then referred to Dr. Michael Moore, a specialist in physiatry and electro diagnostic medicine, in Lebanon, who first saw Phillips on December 11, 21. Since Mr. Phillips was complaining of numbness and tingling in his right hand and arm, Dr. Moore performed electro diagnostic studies which showed entrapment of the right median nerve at the wrist corresponding with carpal tunnel syndrome. Dr. Moore continued to treat plaintiff, who was unable to return to work, until Dr. Moore placed him at maximum medical improvement on April 23, 23. Dr. Moore assigned a five percent permanent partial impairment to the body for the low back injury, and placed restrictions of occasional lifting up to fifty pounds, frequent lifting up to twenty to twenty-five pounds from knee to waist level, and no repetitive lifting from the floor. U.P.S. could not return Phillips to work as his job description required significant heavy lifting. With reference to the carpal tunnel injury, Dr. Moore testified that it was "quite possible" that Mr. Phillips' arm condition was a result of his repetitive duties at U.P.S. Dr. Moore specifically declined to express an opinion as to the extent of any permanent impairment to the arm: "I would not be in a position to make that assessment at this point in time given that I haven't seen the patient in some ten months, and I'm not aware as to whether there's been any progression of his symptoms." Mr. Phillips was also seen by Dr. Walter Wheelhouse on two occasions in October, 22, for an independent medical exam. Dr. Wheelhouse agreed with Dr. Moore that Mr. Phillips had mechanical low back pain with bulging discs, but fixed his back impairment at eight percent, rather than the five percent given by Dr. Moore, because of chronic low back pain. In addition, Dr. Wheelhouse found the carpal tunnel injury to be caused by work, and related an impairment of five percent to the right arm. Dr. Wheelhouse assigned work restrictions to Mr. Phillips of no bending, stooping, or lifting over twenty pounds occasionally, and no repetitive motion of his back, or long distance truck for the low back injury. For the carpal tunnel, Dr. Wheelhouse assigned work restrictions of no repetitive motions of his right arm, and no trauma to the right hand. Dr. Wheelhouse further prescribed that plaintiff should wear a splint on the right hand/wrist. -1-
Authoring Judge: John A. Turnbull, Sp. J.
Originating Judge:The Hon. John D. Wootten, Jr., Judge |
Wayne County | Workers Compensation Panel | 02/26/04 | |
| Frederick J. Jackson v. Paccar, Inc. d/b/a Peterbilt
M2003-00406-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 defendant/appellant argues that the trial court erred in finding that the plaintiff/appellee sustained his carpal tunnel injuries while he was employed with the defendant/appellant, and the defendant/appellant also argues that the trial court's assignment of a 12.5 percent vocational disability is excessive. We affirm the judgment 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 ADOLPHO A. BIRCH, J., and ALLEN W. WALLACE, SR. J., joined. Terry L. Hill, Nashville, Tennessee, for the appellant, Paccar, Inc. d/b/ a Peterbilt Motors Company Jay R. Slobey and Michael Hornback, Nashville, Tennessee, for the appellee, Frederick Jackson 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 finding, 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. 1998). The trial court in this case found that the plaintiff, Frederick Jackson, sustained a work related carpal tunnel injury in each arm while employed by the defendant, Paccar, Inc., d/b/a Peterbilt Motors Company, and that the plaintiff had sustained a 12.5 percent vocational disability to each arm as a result of his work related injury. We do not find that the evidence preponderates against this finding, and therefore affirm the ruling of the trial court. Facts The plaintiff/appellee began working at Peterbilt in July 1995, where he was first assigned to work as a painter's helper, but moved on to building air piping assemblies, and working in the cab assembly department. In January 2, Jackson reported to Peterbilt that he was having pain and numbness in his hands, but initially his workers' compensation claim was denied. However, under order of the Tennessee Department of Labor, the defendant/appellant provided Jackson with a panel of doctors from which Jackson chose Dr. Schmidt. Jackson was never put under any work restrictions by Dr. Schmidt. Jackson was laid off from Peterbilt July 28, 2. Jackson then took a job with Penske as a mechanic, which also required the use of his hands. Jackson was treated by a number of doctors, but was not diagnosed as having carpal tunnel until May 17, 21 when he was seen by a Dr. Milek, who performed surgery on Jackson. Jackson now works for J.B. Hunt as a lead/foreman. He still has problems griping small objects and still experiences numbness sometimes. Jackson also experiences cramping after prolonged writing. Medical Evidence Jackson consulted a number of doctors regarding his pain and swelling in his hands. Dr. David Martin, a plastic surgeon, was the first to treat Jackson. Dr. Martin diagnosed Jackson as having hand pain of unknown etiology, and released Jackson with no impairments and no restrictions. Jackson also saw Dr. David Schmidt, an orthopedist, Dr. Daniel McHugh, a physiatrist, Dr. Lagron and Dr. Lawrence, none of whom diagnosed Jackson with carpal tunnel syndrome. Jackson was diagnosed with carpal tunnel syndrome on May 17, 21, by Dr. Milek, a hand and wrist doctor. Dr. Milek performed a synovectomy on Jackson's right arm and a carpal tunnel release on the left arm. The surgeries on both arms improved Jackson's condition, especially the synovectomy on the right arm. The only medical record before the trial court was the deposition of Dr. David Gaw, a physician specializing in orthopedics. Dr. Gaw reviewed numerous notes and records from Drs. Milek, Lawrence, Martin, and Schmidt, and also examined Jackson in making his evaluation of -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Carol Soloman, Circuit Judge |
Davidson County | Workers Compensation Panel | 01/27/04 | |
| Joanna Swiger v. Nashville Union Stockyard
M2002-02971-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. The issues involved in this appeal are whether the plaintiff, Joanna Swiger, had waived her right to seek reconsideration pursuant to TENN. CODE ANN. _ 5-6-241(a)(2), and whether Ms. Swiger made a reasonable attempt to return to work. 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 ADOLPHO A BIRCH, J. and ALLEN W. WALLACE, SR. J., joined. W. I. Howell Acuff, of Cookeville, Tennessee, for the appellant, Joanna Swiger. David J. Deming, of Nashville, Tennessee, for the appellee, Nashville Union Stockyard Restaurant. 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 finding, 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. 1998). The trial court in this case held that Ms. Swiger had knowingly and voluntarily waived her right to reconsideration of her vocational disability, and the court further held that Ms. Swiger did not make a reasonable attempt to return to work after the injury, and was therefore not entitled to seek reconsideration. We do not find that the evidence preponderates against these findings, and therefore affirm the ruling of the trial court. Facts/Medical Evidence Ms. Swiger injured herself in August 1995 when she slipped in a cooler while working for the Stockyard Restaurant. She settled her workers' compensation claim for 24 percent permanent partial disability to the body as a whole, and in June 1996, Ms. Swiger signed an order approving the settlement that she had reached. Although she was unrepresented at the time, Ms. Swiger had discussed with the judge the issue of waiving her right to reconsideration of her vocational disability, which was a part of the settlement. After her injury, Ms. Swiger had restrictions that would not allow her to continue working as a server at the restaurant. Paulene Krebs, the nurse case manager, testified that a server's position was the only job ever identified to her that was available to Ms.Swiger, and that she tried repeatedly to work with the restaurant to find Ms. Swiger another position. Andrew Penland, the controller at the restaurant, contends that the restaurant tried to return Ms. Swiger to work a number of times by offering Ms. Swiger a number of positions that would be suitable for her, such as a hostess or answering the telephone, but that Ms. Swiger turned down each offer. Michael Baker, a manager at the restaurant, testified that the restaurant tried to return Ms. Swiger to work several times, and actually still considered Ms. Swiger an employee of the restaurant at the time of the settlement. Mr. Baker also testified that Ms. Swiger had expressed interest in returning to work by picking up a uniform, but that she failed to attend two scheduled orientations. Mr. Baker further testified that he phoned Ms. Swiger after these missed orientations, however Ms. Swiger simply stated that she would not work there. Dr. Walter Bell was Ms. Swiger's treating physician. Dr. Bell testified that Ms Swiger had injured her lower rib cage and upper abdominal wall area of her right side when she slipped in the cooler at work. Dr. Bell placed Ms. Swiger on work restrictions of not performing any repetitive activity that produces pain and Ms. Swiger could not lift more than 25 pounds. Dr. Bell also advised Ms. Swiger to use common sense in her restrictions and not do anything that seemed to cause pain. Dr. Bell was of the opinion that Ms. Swiger could not perform the position of a server, but that she could perform nearly any other position at the restaurant. Discussion The first issue for consideration in this case is whether Ms. Swiger knowingly and voluntarily waived her right to reconsideration pursuant to TENN. CODE ANN. _ 5-6-241(a) (2), which provides that an employee may seek reconsideration of vocational disability if the employee is no longer -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Irvin H. Kilcrease, Chancellor |
Union County | Workers Compensation Panel | 01/27/04 | |
| Virginia Sykes v. Saturn Corporation
M2003-00532-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 defendant/appellant, Saturn Corporation, argues that there is no evidence that the permanency of plaintiff/appellee's plantar fasciitis and Morton's neuroma was caused by her employment, and that the plaintiff/appellee's condition of lupus was not caused by her employment. 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 ADOLPHO BIRCH, J. and ALLEN W. WALLACE, SR. J., joined. Thomas H. Peebles, IV, and Terrence O. Reed, Nashville, Tennessee, for the appellant, Saturn Corporation J. Anthony Arena, Nashville, Tennessee, for the appellee, Virginia Sykes 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 finding, 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. 1998). The trial court in this case awarded the plaintiff/employee permanent partial disability benefits as a result of injury to her feet. The defendant argues that the plaintiff failed to carry the burden of proof with respect to causation of the permanency of the plaintiff's conditions, and that the trial court erred in finding that the plaintiff is entitled to permanent partial disability benefits. We do not find that the evidence preponderates against the finding of the trial court, and therefore affirm the ruling of the trial court. Facts The plaintiff/appellee, Virginia Sykes, began working at the Saturn plant in 199, and was assigned to a team that was responsible for attaching laches and other parts to the doors of the cars. Sykes worked ten hour shifts, having to stand on concrete or wood floors the entire time, except for two breaks and a thirty minute lunch break. Sykes began experiencing pain in her feet in 1993 and went to her doctor, Linda Monroe, about this problem. Sykes told Dr. Monroe that she thought the problem was work related, and Dr. Monroe referred her to Dr. McArthur. Sykes reported the problem to Saturn on April 3, 1994. Dr. McArthur treated Sykes with medications, injections, etc., and the treatment did help somewhat. Sykes was then referred to Dr. Davidson, who diagnosed her with plantar fasciitis and Morton's neuroma and kept Sykes off of work. Dr. Davidson tested Sykes for lupus at that time, but the test was negative. Dr. Davidson performed surgery on the left foot of Sykes in 1995, but there was little or no improvement. In 1998, Sykes was diagnosed with lupus. Sykes was on permanent work restrictions of sitting only, but that was modified to one hour of standing, one hour of sitting, alternatively. Sykes was placed on long-term disability because of her lupus. Medical Evidence The depositions of Dr. Randall Davidson and Dr. David Gaw were the only medical testimony before the trial court. Although both doctors agree that the impairment rating should be 4 percent to the left lower extremity and 2 percent to the right lower extremity, they do not agree that the working conditions at Saturn is what caused this condition. Dr. Davidson testified that he believes within a reasonable degree of certainty that lupus caused Sykes foot problems to become permanent, whereas they are usually temporary problems. Dr. Davidson also testified that lupus could have actually been a factor in causing Sykes' plantar fasciitis. Dr. Davidson further testified that there are a number of factors that could have caused Sykes' foot problems, and that he could not state within a reasonable degree of medical certainty that Sykes' work at Saturn did anything more than temporarily aggravate the plantar fasciitis. Dr. Davidson did perform surgery on Sykes' left foot, however there was little or no improvement, so there was no surgery to the right foot. Dr. Davidson put Sykes on permanent work restrictions after the surgery as stated above. Dr. Gaw conducted an independent medical evaluation of Sykes. Dr. Gaw testified that -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Jim T. Hamilton, Circuit Court Judge |
Maury County | Workers Compensation Panel | 01/27/04 | |
| Bobby L. Blaylock v. Dacco, Inc.,
M2003-00315-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. The trial court found that the plaintiff's respiratory conditions did arise out of the scope and course of his employment. We affirm the judgment 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 ADOLPHO BIRCH, J. and ALLEN W. WALLACE, SR. J., joined. Randolph A. Veazey, Nashville, Tennessee, for the appellants, Dacco Inc., and Zurich Insurance Company Jon E. Jones, Cookeville, Tennessee, for the appellee, Bobby L. Blaylock 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)(25); 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 court in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The trial court found that the plaintiff established a direct causal connection between the conditions under which the plaintiff worked and his respiratory conditions. The defendants/appellants argue that the plaintiff did not show that the plaintiff's respiratory conditions arose out of his scope and course of employment. We agree with the trial court. Facts The plaintiff/appellee, Bobby Blaylock, began working at Dacco in 1979, and has not returned to work there since June 2. Dacco re-manufactures torque converters for use in motor vehicles, and Blaylock's responsibilities there included assembling torque converters, maintenance work, and occasional welding, where he was exposed to some welding smoke. He was also exposed to smoke from other welders in the building. Blaylock has also smoked one to two packs of cigarettes a day for thirty-four years, and now has some respiratory conditions. He never complained of a problem before he left work, but contends now that his conditions arose out of his exposure to the smoke at work. In the early 198's, Dacco did not have very good ventilation, and although some improvements were made throughout the years, a major ventilation system was not installed until approximately 1995. In addition, air samples were not taken by OSHA or TOSHA until approximately 1997, and as such, Dacco does not have any air quality records prior to 1997. Medical Evidence The medical proof at trial consisted of testimony of three doctors, Dr. David Henson, Dr. John Tumen, and Dr. John McElligott. Drs. Tumen and McElligott testified by deposition, while Dr. Henson testified live. Dr. Henson, a board certified pulmonologist, testified that Blaylock suffers from chronic obstructive pulmonary disease, and that Blaylock's exposure to welding fumes at work, and his prolonged smoking, causally contributed to his respiratory disabilities. Dr. Henson also explained that the two exposures were synergistic, that is, the disability a person suffered from the two was greater than the sum of each exposure individually. Dr. John Tumen, Blaylock's treating physician testified that Blaylock's twenty- one year exposure to welding fumes at work, as well as his smoking, both contributed to his respiratory impairments. Dr. Tumen testified that Blaylock's exposure to welding fumes on top of his smoking is what caused his chronic obstructive pulmonary disease. Dr. John McElligott is a board certified internist, and also has a Master's Degree in Occupational Health and Safety. Dr. McElligott relied on a number of sources, including diagrams of the work site that Blaylock worked in, when testifying that Blaylock's respiratory problems where caused solely from Blaylock's cigarette smoking. Dr. McElligott testified that the Dacco facility where Blaylock worked was large enough to accommodate the number of welders and properly ventilate the welding smoke. Dr. McElligott also testified that all of the respiratory conditions from which Blaylock suffers can be caused solely from smoking cigarettes. Dr. McElligott further testified that Drs. Tumen and Henson are incorrect in their assertions that -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:John Turnbull, Circuit Court Judge |
Putnam County | Workers Compensation Panel | 01/27/04 |