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| Jimmy H. Spurlock v. Boiler & Heat Exchange Systems, Inc.
E2002-02842-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 Plaintiff alleges he suffers from a occupational disease within the definition thereof contained in Tenn. Code Ann. _ 5-6-31. The trial judge found the plaintiff failed to show that his lung disease was caused by or arose from his occupation as a welder with the Defendant and dismissed the case. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, J., and ROGER E. THAYER, SP. J., joined. Ronald J. Berke, Chattanooga, Tennessee, attorney for the Appellant, Jimmy H. Spurlock. C. Douglas Dooley, Charles W. Poss and Michael D. Newton, Chattanooga, Tennessee, attorneys for Appellee, Boiler & Heat Exchange Systems, Inc. MEMORANDUM OPINION Facts There is no dispute concerning the fact the Plaintiff is totallydisabled as a result of interstitial pulmonary fibrosis. Further, the evidence shows the Plaintiff worked for the Defendant for ten years before his illness caused him to be unable to work. The Plaintiff worked as a welder for the defendant. He and other employees testified they and the Plaintiff were exposed to a significant amount of metal particles and dust caused by the welding work they did. There is no evidence to dispute this. Charles N. Adams, Jr., a mechanical engineer conducted a study of the work done in the Defendant's plant and found some thirty substances to which the Plaintiff would have been exposed. These included metal particles and other substances. These findings were not disputed. There is little dispute in the medical evidence in this case except the significant and controlling issue of whether the Plaintiff's illness is a result of a hazard of his occupation with the Defendant. Medical Evidence There was extensive medical proof introduced in the record by oral testimony of expert witnesses and various reports from other experts. Additionally, several studies concerning interstitial pulmonary fibrosis was introduced. Amongst this evidence, the most significant evidence was presented by Dr. Suresh Enjeti, a pulmonary specialist, Dr. James D. Snell, Jr., a pulmonary disease specialist, and Dr. William F. McGann Jr., a specialist in internal medicine. Further there were reports from four highly qualified pathologists found in the record. Dr. Enjeti, who testified in person, testified that the Plaintiff's lung disease was caused by the exposure to the metal dust, et al, encountered by the Plaintiff in his work with the Defendant. Dr. Enjuti based his opinion upon medical studies which he had done and which he had studied which indicated the illness suffered by the plaintiff is caused by exposure to metal particles. Dr. Enjeti testified he had the report from the engineer which tested the material said to be found in the work place. He found no metal or dust particles in the Plaintiff's lungs. When asked if he had any objective findings to support his conclusion the Plaintiff's disease was caused by his work for the Defendant, Dr. Enjeti responded: "Beyond the occupational history, no." Dr. James D. Snell, examined the Plaintiff and confirmed the diagnosis of interstitial pulmonary fibrosis. Dr. Snell discussed each of the substances listed by the engineer as being present in the work place. He testified none of these would cause the problem which the Plaintiff has. He found none of these - nor asbestos - present in the Plaintiff's lung biopsy. Dr. Snell was of the opinion the Plaintiff interstitial fibrosis was of unknown origin and did not relate its' beginning to the Plaintiff's work for the Defendant. Dr. McGann gave a video deposition and testified the Plaintiff's condition of uncertain etiology and that it was not caused or aggravated by the work for the Defendant. The four pathologists found no evidence that any of the particles contained in the engineer's report were present in the Plaintiff's lung tissue. -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:W. Frank Brown III, Chancellor |
Knox County | Workers Compensation Panel | 01/22/04 | |
| Elmer Da Vid Do Yle v. Un Ited Par Cel Servic E,
2003-00078-SC-WCM-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. Section 5-6-225(e)(3) for hearing and reporting to the Supreme Court of the finding of fact and conclusions of law. The only issue submitted to the trial judge was the extent of the employee's permanent vocational disability. The employer appeals the award of permanent disability benefits to an employee. We affirm.
Authoring Judge: Joe H. Walker, III Sp.J.
Originating Judge:Joe C. Morris, Chancellor |
Madison County | Workers Compensation Panel | 01/21/04 | |
| Kimberly Clark v. Hardee's Food Systems, Inc.,
M2002-02942-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeal 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 appellant, employee, has appealed the trial court's decision in this case, holding the employee had failed to carry the burden of proof as to causation, and denied benefits. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed ALLEN W. WALLACE, SR.J., in which ADOLPHO A. BIRCH, JR., J. and JOHN K. BYERS, SR.J., joined. D. Andrew Saulters, Nashville, Tennessee for appellant, Kimberly Clark Vanessa L. Comerford, Brentwood, Tennessee for appellee, Hardee's Food Systems, Inc., et al. MEMORANDUM OPINION ISSUES The issues in this appeal as stated by the employee and employer are whether or not the trial court erred in ruling the employee failed to carry the burden of proof as to medical causation due to inconsistencies in her trial testimony and history given medical professionals. Employee alleges in this appeal that the inconsistencies in her testimony as well as her history given to medical professionals were caused by confusion on her part, or that the alleged inconsistencies were misinterpretations. -2-
Authoring Judge: Allen W. Wallace, Sr.J.
Originating Judge:Tom E. Gray, Chancellor |
Sumner County | Workers Compensation Panel | 01/20/04 | |
| John Thomas Still v. Commissary Operations, Inc.
M2003-00528-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 determined that I(1) Employee was entitled to the current cause of action pursuant to Tennessee Code Annotated Section 5-6-241(a)(2). The employee sustained no additional vocational disability over and above the previously awarded twenty-five percent. As discussed below, the panel has concluded the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed ALLEN W. WALLACE, SR. J., in which ADOLPHO A. BIRCH, JR., J. and JOHN K. BYERS, SR. J., joined. Aubrey T. Givens, Madison, Tennessee, for appellant, John Thomas Still Mark A. Baugh, Nashville, Tennessee, for appellee, Commissary Operations, Inc. MEMORANDUM OPINION FACTS On March 13, 1998, the plaintiff injured his back at work. At trial, the parties stipulated that the plaintiff's injury was work-related, that it occurred during the course and scope of his employment, and that proper notice was given. The incident was compensable at a rate of $492. Thus, the only issue at trial was the extent of permanent vocational disability and whether the award should be paid in a lump sum. At the conclusion of proof, the trial court found that the plaintiff had sustained a twenty-five percent vocational disability to the body which equated to two and a half times the bodily impairment. The trial court further ruled that the plaintiff's rights pursuant to Tennessee Code Annotated Section 5-6-241(2)(b) were not impaired. Subsequent to the original case, the plaintiff returned to his employment with Commissary Operations, Inc. However, in July 22, he was terminated. The plaintiff then filed a new cause of action pursuant to Tennessee Code Annotated Section 5-6-(a)(2) in an attempt to increase his previously adjudicated award of twenty-five percent vocational disability. In the second case, the trial court determined that reconsideration of the previous award was required under the facts and circumstances of the plaintiff's loss of employment with Commissary Operations, Inc. However, it did not award the plaintiff any additional vocational disability The following facts were adduced at the second trial. After his March 1998 injury, the plaintiff was ultimately released to return to work at Commissary Operations, Inc. Dr. Cushman, the plaintiff's treating physician, assigned the plaintiff a ten percent permanent impairment to the body as a whole. Dr. Cushman told the plaintiff that he should use "common sense" and temporarily refrain from lifting heavy objects. Dr. Cushman did not give the plaintiff any permanent restrictions. He testified that he instructed the plaintiff that if he had any problems to return to see him. Dr. Cushman stated that he did not treat the plaintiff again. The plaintiff returned to work in October 1998, and he continued there until July 22. The plaintiff testified regarding problems that he suffered when he returned to work after his back injury. He stated that many of his tasks caused him pain. He also stated that he could not sit for more than three hours in the same position. The plaintiff acknowledged that he did not complain to his supervisors about the alleged pain he suffered. He maintained that it was because he was afraid he might lose his job. The plaintiff's wife also testified regarding the plaintiff's pain and decreased activity. On September 6, 21, the plaintiff underwent a physical for the Department of Transportation. The physical was performed at Concentra Medical Center. As part of the examination, the plaintiff filled out a form indicating that he had had a prior back and spinal injury. However, he also stated in the forms that he was not having any problems from his 1998 injury and that he did not have any restrictions with job activities. The plaintiff tried to explain that he filled out the forms as he did because on "that date it wasn't hurting." Following the physical, the plaintiff was re-certified to continue driving. In October 21, while planting flowers, the plaintiff injured himself at his home. Three to four weeks after the accident, the plaintiff went to see his own physician, Dr. Peach. On February 19, 22, Dr. McCarty, an orthopedic specialist to whom Dr. Peach had referred the plaintiff, performed surgery on the plaintiff's shoulder. On March 7, 22, the plaintiff filled out a form requesting Family or Medical Leave. The form stated that the plaintiff was entitled to twelve weeks of unpaid leave. However, the plaintiff contends that he was approved for six months leave. The plaintiff was already on leave when he completed the form. -2-
Authoring Judge: Allen W. Wallace, Sr. J.
Originating Judge:Ross H. Hicks, Circuit Judge |
Robertson County | Workers Compensation Panel | 01/20/04 | |
| Dinah Faye Coffman v. Dtr Tennessee, Inc.
E2003-00641-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 awarded the employee 66 2/3 percent permanent partial disability. The employer insists the evidence preponderates against the award. Judgment of the trial court is modified to indicate the award is to each arm and the judgment as modified is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Modified and Affirmed. ROGER E. THAYER, SP. J., in which E. RILEY ANDERSON, J., and JOHN K. BYERS, SR. J., joined. Clarence Risin, of Knoxville, Tennessee, for Appellant, DTR Tennessee, Inc. James M. Davis, of Morristown, Tennessee, for Appellee, Dinah Faye Coffman. MEMORANDUM OPINION The employer, DTR Tennessee, Inc., has appealed from the entry of a judgment awarding the employee, Dinah Faye Coffman, 66 2/3 percent permanent disability. Facts The employee was thirty-seven years of age and dropped out of school when she was in the ninth grade. She later obtained a G.E.D. certificate. Most of her prior work experience was in general labor work. She has been a smoker for many years. She was working for DTR Tennessee on an assembly line where she operated several machines. The work involved repetitive use of her hand and arms. During January 1999, her hands were bothering her to such extent she notified company officials who referred her to a doctor. The doctor referred her to an orthopedic surgeon, Dr. Gorman, for treatment. She eventually became dissatisfied with him and decided to find another orthopedic doctor. She chose Dr. Minkin and he diagnosed her condition as bilateral carpal tunnel syndrome. He operated on her right arm during April 2. Shortly after this surgery, she had a tonsillectomy and a biopsy indicated she had throat cancer. She was treated with chemotherapy and radiation. After having about nine surgical procedures for the cancer, it was determined she was cancer free and she returned to Dr. Minkin who performed surgery on her left arm during January 22. Ms. Coffman testified the surgery on her arms had improved her condition to some extent but she still had problems using them. She found it difficult to hold objects and often dropped them. She said it was hard to put her makeup on or comb her hair; that she still had some numbness and tingling; she could not do general housework; and she could not work at any of the jobs she had held in the past. She indicated she was drawing Social Security Disability benefits for her total condition and at one point during her examination, she said that her not being able to work was partly due to her cancer. Dr. Paul W. Gorman, an orthopedic hand surgeon, testified by deposition and said he began treating her during June 1999. He said she had weakness in grip strength in both hands and the muscles were tender to touch. His diagnosis was: (1) chronic tobaccoism, (2) mild degree of carpal tunnel syndrome on the right, and (3) some mild degree of cubital tunnel syndrome, which is tenderness over the ulnar nerve at the elbow. The doctor was of the opinion that her smoking was contributing to her symptoms; that her problems had eventually resolved and that she had no permanent disability. Dr. Bruce I. Minkin, an orthopedic hand surgeon, also testified by deposition. When he first saw her during November 1999, he diagnosed her as having bilateral carpal tunnel syndrome and performed the release procedures on each arm. The second procedure was much later because of her treatment for throat cancer. He found medical impairment to be 7 percent to the left arm and 3 percent to the right arm. He also recommended she stop smoking but did not attribute the smoking as a cause or contributing cause of her carpal tunnel problem. Dr. William J. Gutch, a retired orthopedic surgeon, testified by deposition. He did not treat her but saw her only for an independent medical examination during July 21, which was after the first arm surgery and before the last arm surgery. His diagnosis was bilateral carpal tunnel syndrome and he felt she had a 17 percent impairment to the whole body or a 9 percent impairment to each arm. Dr. Gutch did not see any connection between her smoking habit and the injury to her arms. Standard of Review Our review of the case is de novo accompanied by a presumption that the findings of the trial -2-
Authoring Judge: Roger E. Thayer, Sp. J.
Originating Judge:Hon. Ben K. Wexler, Circuit Judge |
Knox County | Workers Compensation Panel | 01/16/04 | |
| Nps Energy Services, Inc., Appellant v. Nelson E. Moore, Appellee
M2002-02718-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 findings of fact and conclusions of law. The employer/appellant contends: (1) that the trial court erred in determining that the employee suffered an injury arising out of and in the course of his employment, and (2) that the trial court erred in awarding forty percent (4%) permanent partial disability to the body as a whole. As discussed herein, the panel has concluded that the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Circuit Court Affirmed. Frank G. Clement, Jr., Sp. J., delivered the opinion, in which Frank F. Drowota III, C.J., and Joe C. Loser, Jr., Sp. J., joined. Raymond S. Leathers, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the appellant NPS Energy Services, Inc. George E. Copple, Jr., Nashville, Tennessee, for the appellee Nelson E. Moore. Memorandum Opinion Nelson E. Moore (Moore), appellee, is a journeyman painter who was employed by NPS Energy Services, Inc. (NPS), appellant, from September 1998 to December 1998. Moore was hired by NPS to abate lead from the Cumberland City Generating Plant of the Tennessee Valley Authority, a customer of NPS. On November 4, 1998, while working in the basement of the Cumberland City facility, Moore claims to have suffered a compensable injury as a result of exposure to airborne cleaning acids and caustic materials. NPS denies the assertion that Moore was exposed to or injured 1 by acids or caustic materials while employed by NPS. NPS filed the complaint for declaratory judgment and Moore filed a counterclaim. The matter was tried on October 2, 22. The trial court entered its final order the following day finding that Moore was exposed to chemicals while employed by NPS that caused occupationally induced asthma and awarded Moore forty percent (4%) permanent partial disability to the body as a whole. NPS filed this appeal. Our review is de novo upon the record, 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). We are not bound by the trial court's findings but, instead, conduct an independent examination of the record to determine where the preponderance of evidence lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Nevertheless, considerable deference must be accorded to the trial court's factual findings on issues related to the credibility of witnesses and weight to be given their testimony. Krick v. City of Lawrenceburg, 945 S.W.2d 79, 712 (Tenn. 1997). Conclusions of law, however, 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). On November 4, 1998, Moore was working in the basement area of the Cumberland Furnace facility. This area is very large, approximately 5 feet wide, 3 feet deep and 2 feet high. The unit Moore was working on was shut down for 8 days for scheduled maintenance. Moore was wearing regular painting work clothes. Needing a "scissor lift" to perform his duties, Moore went to an area of the basement near what is referred to as the minor maintenance room. He found two scissor lifts, but both were missing an electrical box that was necessary to operate the lift. Moore searched in the maintenance room, and then, he went up to the next floor. Still unsuccessful in his search for an electrical box, Moore returned to the basement in an area near the minor maintenance room at which time Moore claims his nose started running, his eyes started burning and began to water, and his throat became sore. He also alleges that his face felt like it had needles in it. Seeing a sign that read "Warning, Acid" , Moore went to a nearby bathroom and washed his eyes and face with water. Moore claims that he felt these sensations for 3 to 6 seconds. The pricks and tingling sensations stopped, and other sensations generally subsided as well. Prior to January 1998, the Cumberland City facilityhad been using sulphuric acid and sodium hydroxide, identified as "caustic", to remove impurities from resin beds in the water purification system. In the area where Moore claims to have been injured, there were signs which read: "Danger: Caustic Lines", "Danger: Acid Line", "Danger: Acid Caustic Outlet", and "Danger: Acid and Caustic." Other signs indicated the lines were pressurized, but the evidence suggested that the lines had not been under pressure for months. At the time of the incident, the facility was no longer using acid or caustic for purification, however, the chemicals remained in tanks and pipes in the area at issue. NPS insists that Moore did not suffer an injury arising out of his employment and during the course of his employment. Specifically, NPS contends there was no evidence of a chemical leak on November 4, 1998. Moreover, NPS contends that even if Moore were exposed, the chemicals were 2
Authoring Judge: Frank G. Clement, Jr., Sp. J
Originating Judge:Hon. C.L. Rogers, Judge |
Moore County | Workers Compensation Panel | 01/16/04 | |
| Debra A. Pressley v. State of Tennessee
E2003-01133-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 Claims Commissioner dismissed the complaint finding that the employee's mental condition was of long duration and was the result of a gradual build-up of work stress. The judgment of the Claims Commission is reversed and the case is remanded. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Tennessee Claims Commission is Reversed and Remanded ROGER E. THAYER, SP. J., in which E. RILEY ANDERSON, J., and JOHN K. BYERS, SR. J., joined. J. Anthony Farmer and John P. Dreiser, of Knoxville, Tennessee, for Appellant, Debra A. Pressley. Paul G. Summers, Attorney General and Reporter, and George H. Coffin, Jr., Senior Counsel for Appellee, State of Tennessee. MEMORANDUM OPINION The employee, Debra A. Pressley, appeals from the trial court's action in dismissing her complaint and entering judgment in favor of the employer, State of Tennessee. The Claims commissioner held the employee's mental condition was of long duration and the result of a gradual build-up of work stress and therefore not compensable. Facts Ms. Pressley, a 1976 high school graduate with an Associate's degree in business and word processing, began working for the Tennessee Department of Safety in 1989 as a drivers license examiner. She worked in this position for about two years and then transferred to working as a weigh station operator where she remained for about one year. In 1992 she began regular duties as a State Trooper and was assigned to work in Knox County. She testified that prior to working as a State Trooper, she had never been seen or treated for any psychological problems. She said her regular duties as a patrol officer required her to investigate many accidents with fatalities but that never really bothered her. Ms. Pressley told the court of three specific events that occurred during the last two years of her work that she said caused her to become very depressed, have flashbacks and suffer awful nightmares to the extent she was hospitalized on several occasions and rendered unable to work. In late 1997 or early 1998, she was required to assist another officer in investigating a single vehicle accident on Interstate 4 which involved a motorcycle where the driver was decapitated when he came into contact with a guardrail. She had to search the wreck scene in order to locate the driver's head. The second event was an accident in 1999 on the John Sevier Highway involving a young woman who was killed when another vehicle impacted her car so severely there was difficulty in removing her body from the wreckage and where she described an enormous amount of blood in the wreckage. She had to notify the family and also prevent the family from seeing the body and blood. The last event and the one that she said seemed to cause her the most trouble was in 2 and was an accident where a vehicle actually rolled on top of the driver's head and the head was crushed and "elongated and buried in mud." She said the individual who died was known to her family. Ms. Pressley said these events caused her to become very depressed; that she quit doing everything; could not sleep or eat very much; caused her to have flashbacks and nightmares when she would dream about being at work and called to another tragic accident scene. She indicated that sometimes a certain smell would remind her of a grisly mixture of corpse, battery acid and transmission fluid all mixed together as the smell of death. In describing this, she told the court she could smell it while talking about it. She eventually had to stop working and was seen by a licensed clinical psychologist upon referral by the Department of Safety. She said she was so distraught that she attempted suicide four times during the period she was not working. The first time she was hospitalized was in April 2 after cutting herself with a knife. She has been in the hospital on several other occasions since then. She testified she is unable to work; cannot hardly stand to leave her house; has panic attacks; and she hyperventilates often. She stated she had worked as a State Trooper for almost ten years and had never had problems of this nature prior to the three events she described. She admitted she was having some problems in her marriage during this same period of time but attributed some of that as a result of her unusual and stressful condition. She was awarded disability retirement benefits with the State and is now receiving Social Security Disability benefits. Dr. Francis P. LeBuffe, a psychiatrist, testified by deposition. He was Ms. Pressley's treating doctor and he saw her for the first time in the hospital on April 4, 2. He testified she had all of the symptoms of severe depression; that she was not able to work and his diagnosis was (1) major -2-
Authoring Judge: Roger E. Thayer, Sp. J.
Originating Judge:Vance W. Cheek, Jr., Commissioner |
Knox County | Workers Compensation Panel | 01/14/04 | |
| Juanita Boling, Appellee v. Sak's Incorporated A/K/A Hecht's
M2003-00195-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 findings of fact and conclusions of law. The issues presented pertain to a 71 year old employee of Sak's Incorporated who sustained two separate injuries. The employee and Sak's settled the first case, involving injuries to the left shoulder, for the maximum benefits stating in the settlement that the employee was "1% permanently partially disabled." The matter on appeal involves an injury to the back that occurred within one month of the prior injury. The trial court found the employee permanently and totally disabled from her back injury and awarded her the maximum benefits. Moreover, the trial court construed the prior order as a finding of 1% permanent total disability to the body as a whole and held the appellant, Second Injury Fund of the Department of Labor, liable for the entire award for the back injury. For reasons stated herein, the panel affirms the judgment of the trial court as modified. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Chancery Court Affirmed. Frank G. Clement, Jr., Sp. J., delivered the opinion, in which Frank F. Drowota III, C.J., and Joe C. Loser, Jr., Sp. J., joined. J. Frank Thomas, Leitner, Williams, Dooley & Napolitan, PLLC, Nashville, TN, for appellant, Sak's Incorporated. Paul G. Summers and E. Blaine Sprouse, Attorney General, Nashville, TN, for appellant, Second Injury Fund. Daniel C. Todd, Todd and Floyd, PLC, Nashville, TN, for appellee, Juanita Boling. Memorandum Opinion Juanita Boling (Boling), the employee-appellee, began working at Sak's department store in 1993. Boling was 71 years old in January and February, 21 when she sustained two injuries while working at Sak's. On January 31, 21, Ms. Boling injured her left shoulder. She received medical treatment and returned to work while still under the care of a physician. Less than one month later, on February 27, 21, she injured her back. Ms. Boling underwent surgery for the shoulder injury in April of 21. She did not have surgery on her back. Ms. Boling brought claims against her employer and the workers' compensation insurer, Liberty Mutual Insurance Company, for both injuries. Initially, she filed two civil actions against Sak's and Liberty Mutual, one action for each respective injury. Ms. Boling later filed a third action, this one against the Second Injury Fund (the "Fund").1 Moreover, the defendants added the Fund as a third party defendant, seeking indemnification or contribution for any benefits Ms. Boling may receive in excess of the maximum benefits of 26 weeks. In February of 22, Sak's and Liberty Mutual settled the claim for Ms. Boling's shoulder injury for the maximum benefits available to an employee over the age of 6 years, being 26 weeks of compensation.2 In the agreed order settling the claim for the right shoulder, the parties stated that the award to Ms. Boling of two hundred sixty (26) weeks of benefits was "essentially equivalent to one hundred percent (1%) permanent partial disability to the body as a whole." The parties did not settle the claim for Ms. Boling's back injury. The trial court consolidated the two remaining actions, the one concerning the back injury with the plaintiff's action against the Fund. This appeal arises from the two consolidated actions. The case that was settled is not before us; however, the terms of the settlement are relevant to the issues before us and are discussed. The claim for the back injury went to trial in October of 22. The trial court found that Ms. Boling was rendered permanently and totally disabled from her back injuries and awarded Ms. 1Ms. Boling initially filed two complaints for her injuries on October 22, 21, against her employer, Sak's Incorporated, a/k/a Hechts, and its insurance carrier Liberty Mutual Insurance Company, being docket numbers 28318 and 2832. Sak's and Liberty Mutual filed an Answer on November 3, 21. On February 27, 22, Ms. Boling filed a third civil action, this one against the Second Injury Fund, being docket number 28582. Also on February 27, 22, Sak's and Liberty Mutual filed a motion to add the Second Injury Fund as a third party defendant in docket number 28318. Before the trial for Ms. Boling's back injury in docket number 28318, Boling, Sak's and Liberty Mutual settled the claim concerning the left shoulder in docket number 2832. The settlement for the shoulder injury was subsequently deemed by the trial judge to constitute a settlement for 1% permanent total injury to the body as a whole. 2Workers' compensation awards to persons over the age of 6 are capped at 26 weeks. Tenn. Code Ann. _ 5-6-27(A)(I). Boling was 71 years old at the time of her injuries. 2
Authoring Judge: Frank G. Clement, Jr., Special Judge
Originating Judge:Hon. Robert E. Lee Davies, Chancellor |
Williamson County | Workers Compensation Panel | 01/06/04 | |
| Willie Wooten v. Wal-Mart Stores East. Inc.,
W2002-02682-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer questions the trial court's findings as to compensability and rate of compensation benefits. The employer also insists the trial court erred in ordering it to pay medical expenses to TennCare, and not directly to the health care providers. The employee insists the employer should have been assessed with a penalty for its failure to provide medical benefits. As discussed below, the panel has concluded the evidence fails to preponderate against the trial court's findings as to compensability and compensation rate, but should be remanded for determining TennCare's subrogation interest, if any. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed in Part; Remanded JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP. J., joined. Jay L. Johnson, Allen, Kopet & Associates, Jackson, Tennessee, for the appellants, Wal-Mart Stores, Inc. Keith V. Moore, Memphis, Tennessee, for the appellee, Willie Wooten MEMORANDUM OPINION The employee or claimant, Mr. Wooten, initiated this civil action to recover medical benefits, temporary total disability benefits and permanent partial disability benefits for a back injury occurring on November 15, 1999, arising out of and in the course of his employment with the employer, Wal-Mart Stores, Inc. He also sought general relief. The employer denied liability. After a trial on the merits, the trial court awarded permanent partial disability benefits based on 6 percent to the body as a whole, with a weekly benefit rate of $317.73 per week, temporary total disability benefits at the same rate from November 15, 1999 to July 1, 2, discretionary costs and medical expenses in the sum of $12,97.25. The employer 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). 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). On the above date, the claimant was stacking cases of juice when he suffered severe and sudden back pain and fell to the floor, while working for the employer. He reported the accident to his supervisor immediately and the store's general manager a few hours later. He was referred to Dr. Evan Murray, who treated him conservatively for two to two and one-half months, then referred him to a neurosurgeon, Dr. Davies, who diagnosed chronic low back radiculopathy and scheduled corrective surgery. Surgery was performed by Dr. Davies on May 23, 2. On August 3, 2, Dr. Davies released him to return to work with restrictions. The claimant has not returned to work. He continues to complain of pain and inability to work. He has seen a number of doctors. Dr. Parsioon, who had treated the claimant for a prior low back injury, visited briefly with him on April 26, 2. Dr. Parsioon testified that he found no evidence of a new injury as a result of the November 15, 1999 accident. However, the claimant's own testimony, the report of Dr. Davies and the testimony of Dr. Boals reflect that the accident contributed to the claimant's disability, either as the direct cause or by aggravating a pre-existing condition. The employer contends the event of November 15, 1999 was no more than a manifestation of the previous injury, which also occurred while the claimant was working for the employer and for which the claimant received no permanent disability benefits. The employer relies entirely on the testimony of Dr. Parsioon. When the medical testimony differs, the trial court must choose which view to believe. In doing so, the court is allowed, among other things, to consider the qualifications of the experts, the circumstances of their examination, the information available to them, and the evaluation of the importance of that information by other experts. Orman v. Williams Sonoma, Inc., 83 S.W.2d 672, 676 (Tenn. 1991). Moreover, it is within the discretion of the trial court to conclude that the opinion of certain experts should be accepted over that of other experts and that it contains the more probable explanation. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 676-7 (Tenn. 1983). Any reasonable -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:George H. Brown, Judge |
Shelby County | Workers Compensation Panel | 12/31/03 | |
| Shirley Ann Borchert v. Emerson Electric Company
W2003-00111-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer questions the trial court's findings as to permanency and extent of vocational disability. As discussed below, the panel has concluded the judgment 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 Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP. J., joined. Richard L. Dunlap, Paris, Tennessee, for the appellant, Emerson Electric Company Charles L. Hicks, Camden, Tennessee, for the appellee, Shirley Ann Borchert MEMORANDUM OPINION The employee or claimant, Ms. Borchert, initiated this civil action to recover workers' compensation benefits from her employer, Emerson, for a work related foot injury. Emerson denied liability. After a trial on the merits, the trial court awarded, among other things, permanent partial disability benefits based on 35 percent to the leg. The employer 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 on the employer's production line on August 24, 1999, when a piece of sheet metal, approximately one and one-half feet long and eight or nine inches wide, fell from a table top and landed on her right leg at the ankle. The ankle and foot immediately became swollen and bruised. She was taken to the Henry County Medical Emergency Room, where she was treated and referred to Dr. Bo Griffey. Dr. Griffey treated her with antibiotics and pain medication and returned her to light duty work on September 14, 1999. He returned her to full duty on November 2,1999. She continued to have swelling, pain and stiffness in her right ankle. She continued to see other doctors with those complaints. On November 3, 2, more than a year after her injury, she visited Dr. Vince Tusa. She also saw Dr. Segal, who referred her to an orthopedic surgeon, Dr. G. Blake Chandler. Dr. Chandler ordered magnetic resonance imaging, which revealed joint fusion and subcutaneous edema in the medial aspect of the injured ankle. She saw Dr. Joseph Boals, who studied her medical records, examined her and opined that she would retain some minor permanent impairment as a result of the injury. He advised her to wear an ankle brace and permanently restricted her from walking on uneven ground and from excessive stooping, squatting, standing, walking and climbing. She saw Dr. Robert Barnett, who, based on atrophy in her right calf, inability to stand on her right leg for any length of time, limited motion and a chronically swollen right ankle, estimated her permanent medical impairment to be 1 percent to the right lower extremity. She was evaluated by Dr. Amy Dunagan, who found no evidence of muscle atrophy or significant noticeable weakness. The claimant continues to have swelling in her right foot and ankle. She cannot walk or stand for long periods of time without experiencing extreme pain from her right ankle and calf. She takes Alleve to control the pain, has tenderness and limited motion in the injured joint and walks with a limp. Because she is no longer able to perform her assigned duties, she has not worked for the employer since March 14, 21. Her testimony in these respects was corroborated by other lay witnesses. The appellant contends the trial court erred in admitting into evidence the testimony of Dr. Boals because there was a discrepancy between his testimony and the report of Dr. Robb Mitchell, the doctor who performed the magnetic resonance imaging test. Dr. Mitchell's report said the -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:C. Creed Mcginley, Judge |
Benton County | Workers Compensation Panel | 12/31/03 | |
| Betty Frazier v. Saturn Corporation
M2002-01564-WC-R3-CV
In this appeal, the employee insists the trial court erred in determining the date of her injury for the purpose of determining her average weekly wage and that the evidence preponderates against the trial court's findings as to the extent of her permanent disability. As discussed below, the panel has concluded the judgment should be modified with respect to the worker's compensation rate.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Robert L. Holloway, Judge |
Maury County | Workers Compensation Panel | 12/19/03 | |
| Darrell Dwain Binkley v. Tennessee Diecasting-Harvard
02188-SC-WCM-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the 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 Appellant, employer, argues that the trial court erred in finding that the employee sustained a herniated disc as a result of his on the job injury; in awarding temporary total and permanent partial disability benefits and in not applying the "Last Injurious Injury Rule" to dismiss the employee's claim against Appellant. The Appellee, employee, argues that the trial court erred in limiting employees permanent award to 2.5 times the anatomical rating pursuant to T.C.A. _5-6-241(a)(1) because employee's return to work was not "meaningful". For the reasons discussed below, the panel has concluded that the judgment of the trial court should be affirmed in all respects. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed ARNOLD B. GOLDIN, Sp. J., in which HOLDER, J. and LOSER, Sp. J. joined. Byron K. Lindberg and Peggy Tolson, Tolson and Associates, Brentwood, Tennessee, for the appellant, Tennessee Diecasting-Harvard Industries and ITT Hartford Insurance Group D. Michael Dunavant, Ripley, Tennessee, for the appellee, Darrell Dwain Binkley MEMORANDUM OPINION STANDARD OF REVIEW The review of the findings of 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. T.C.A. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W. 2d 548,55 (Tenn. 1995). This court is not bound by the trial court's findings, but instead conducts its own independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 586 (Tenn. 1981). FACTUAL BACKGROUND The employee, Darrell Dwain Binkley, filed his complaint for workers' compensation benefits alleging that he sustained an injury to his lower back on September 29, 1997, when he lifted a five gallon bucket of oil, weighing approximately 75 pounds, while at work for his employer, Tennessee Diecasting. His complaint alleged that his injury was permanent and that he was entitled to benefits for both temporary total and permanent partial disability, in addition to current and future medical care. Appellant denied the employee's claim in its entirety and further alleged that if the employee sustained an on the job injury that the court should dismiss the claim against it based on the "Last Injurious Injury Rule". Following a trial on May 21, 22, the court found that the employee sustained a compensable injury to his low back and awarded him five (5%) per cent permanent partial disability to the body as a whole. The court further found that the employee was entitled to benefits for a period of temporary total disability and that the "Last Injurious Injury Rule" did not apply to the facts of this case. The employer has appealed from the entire award. The employee was 42 years old at the time of trial. He had a varied work history. He had been in the military, albeit briefly; had performed seasonal work at two different cotton gins over several years; had worked as a laborer at factories and warehouses and had been a maintenance man for two adult family homes in the State of Washington, one of which was owned by his former wife. He had also worked as a laborer and maintenance man for a diesel company. While working for this employer in 1988, he slipped and sustained a herniated disc at the L5-S1 level for which he underwent surgery. He received a workers' compensation settlement as a result of this injury. LEGAL AND MEDICAL CAUSATION The employee went to work for the Appellant in 1997. His duties were to operate a machine and to dispense parts. His job required constant lifting, bending and stooping. Part of his job required him to keep the machines well oiled and lubricated. The oil for the machines was carried in the plant in large open buckets. The oil would splash out of the buckets onto the floor causing a slipping hazard. On the day of his injury, he was preparing to carry oil to his machine in a 5 gallon bucket, -2-
Authoring Judge: Arnold B. Goldin, Sp. J.
Originating Judge:Martha Brasfield, Chancellor |
Lauderdale County | Workers Compensation Panel | 12/18/03 | |
| Willie Jean Head v. Nissan Motor Manufacturing
M2002-1908-WC-R3-CV
In this appeal, the employee insists the trial court erred in disallowing benefits for a left shoulder injury for failure to give timely written notice. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court.
Authoring Judge: Joe C. Loser, Sp. J.
Originating Judge:Carol L. Mccoy, Chancellor |
Davidson County | Workers Compensation Panel | 12/18/03 | |
| Edward Caksackkar v. Goodyear Tire
W2002-02368-SC-WCM-CV
The trial court found that the plaintiff was permanently and totally disabled. The parties do not contest this finding. The appellant, Second Injury Fund, argues, however, that the trial court erred in its apportionment of liability between the Fund and the employer when it held that only 25% permanent vocational impairment should be apportioned to the employer and 75% apportioned to the Fund as a result of the plaintiff's last back injury. For the reasons discussed below, the Panel has concluded that the judgment of the trial court should be modified so that 75% permanent vocational impairment is apportioned to the employer and 25% apportioned to the Fund.
Authoring Judge: Arnold B. Goldin, Sp.J.
Originating Judge:William B. Acree, Circuit Judge |
Obion County | Workers Compensation Panel | 12/16/03 | |
| Helen Louise Henson v. Factory & Steel Transportation,
M2002-02761-WC-R3-CV
In this appeal, Tennessee Insurance Guaranty Association insists the trial court erred in determining (1) the employee was permanently and totally disabled, (2) the last injurious injury rule did not apply and (3) the employee's permanent and total disability benefits accrued beginning March 14, 21. The employee insists the preponderance of the evidence supports the findings of the trial court. As discussed below, the panel has concluded the judgment should be modified with respect to the date of injury.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Allen Wallace, Judge |
Humphreys County | Workers Compensation Panel | 12/15/03 | |
| Victor Salazar v. Concrete Form Erectors, Inc.,
M2002-03040-WC-R3-CV
In this appeal, the employer insists the trial court erred in (1) finding that the claim is not barred by the employee's willful and intentional failure to follow established policy requiring the use of a safety appliance, (2) finding that the employee has a 39 percent medical impairment and awarding permanent partial disability benefits based on 78 percent to the body as a whole. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Irvin H. Kilcrease, Chancellor |
Davidson County | Workers Compensation Panel | 12/15/03 | |
| Claude E. Helton, Jr. v. Town of Rogersville
E2003-00311-WC-R3-CV
The trial court awarded the employee 4 percent permanent partial disability to the left leg. The employer has appealed contending the evidence preponderates against the court's finding the City had actual notice of the injury and that the award is excessive. The judgment is affirmed.
Authoring Judge: Roger E. Thayer, Sp. J.
Originating Judge:Hon. Kindall T. Lawson, Circuit Judge |
Knox County | Workers Compensation Panel | 12/10/03 | |
| Linda Meadows v. WaUSAu Insurance Company
E2002-02828-WC-R3-CV
In this appeal, the defendant, Wausau Insurance Company, insists that the trial court erred in determining Wausau was liable for the plaintiff's compensation, and that the trial court erred in allowing the plaintiff to voluntarily dismiss co-defendant, Legion Insurance Company.
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Jeffrey F. Stewart, Chancellor |
Knox County | Workers Compensation Panel | 12/08/03 | |
| Sharon A. Battle v. Methodist Medical Center
E2002-00566-WC-R3-CV
The trial court awarded the employee 5 percent permanent partial disability for a shoulder injury and 35 percent permanent partial disability for a neck injury. Plaintiff contends the awards are insufficient; the court was in error in capping the awards at two and one-half times impairment; and the court was in error in allowing discretionary costs. The judgment is affirmed.
Authoring Judge: Roger E. Thayer, Sp. J.
Originating Judge:James B. Scott, Jr., Circuit Judge |
Knox County | Workers Compensation Panel | 12/01/03 | |
| Gaylon Lowry v. Hardeman County Board of Education
W2002-02822-WC-R3-CV
In this appeal, the employer questions the trial court's findings as to notice, statute of limitations and causation. As discussed below, the panel has concluded the evidence fails to preponderate against the findings.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Dewey C. Whitenton, Chancellor |
Hardeman County | Workers Compensation Panel | 12/01/03 | |
| Sandra Kay Terrell v. Sterling Plumbing Group
W2002-01489-WC-R3-CV
The employer in this workers'compensation case has appealed the trial court's decision awarding the claimant twelve percent (12%) permanent partial disability to both arms. This award was made despite the absence of any impairment rating to the left arm and despite the absence of medical evidence establishing permanency of any injury to the left arm. The Panel has concluded that the evidence preponderates against the trial court's finding of a work-related injury to the left arm. Accordingly, we reverse the trial court's finding as to the left arm, but we affirm the trial court's award of 12% permanent partial disability to the right arm.
Authoring Judge: D. J. Alissandratos, Sp.J.
Originating Judge:Michael Malone, Chancellor |
Obion County | Workers Compensation Panel | 11/21/03 | |
| Thomas Moore v. Shoney's, Inc.
M2002-02635-WC-R3-CV
In this appeal, the employer questions the trial court's award of disability benefits and the admissibility of a medical expert's opinion. As discussed below, the panel finds no reversible error and concludes the evidence fails to preponderate against the findings of the trial court.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Carol L. Soloman, Judge |
Moore County | Workers Compensation Panel | 11/20/03 | |
| Charles R. Newman v. The City of Knoxville,
E2003-00841-WC-R3-CV
In this appeal, the employee insists the trial court erred in granting summary judgment in favor of the employer. As discussed below, the panel has concluded the trial court erred in granting the employer summary judgment.
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Sharon Bell, Chancellor |
Knox County | Workers Compensation Panel | 11/18/03 | |
| Traci L. Nolan v. Covenant Health
E2003-00288-WC-R3-CV
The trial court found the plaintiff did not prove that she contracted Hepatitis C while in the course and scope of her employment. We affirm the judgment of the trial court.
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Frank V. Williams, III, Chancellor |
Knox County | Workers Compensation Panel | 11/17/03 | |
| Jose Santiago v. The Hartford,
M2002-03036-WC-R3-CV
In this appeal, the employer, Powermatic, and its insurer insist the trial court erred (1) in finding that the employee's injury did not progress during his tenure at his last place of employment and (2) in determining the extent of the employee's vocational disability. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Larry B. Stanley, Chancellor |
Warren County | Workers Compensation Panel | 11/17/03 |