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| Tommy Carey v. Camden Castings
W2002-01367-WC-R3-CV
The trial court found this action barred by the statute of limitations. We affirm the trial court.
Authoring Judge: Allen W. Wallace, Sr.J.
Originating Judge:C. Creed McGiley, Circuit Judge |
Benton County | Workers Compensation Panel | 08/18/03 | |
| Rosie Mae Thomas v. Magna Seating Systems of America,
W2002-02403-WC-R3-CV
In this appeal employer contends that the trial court erred in admitting the testimony of Dr. Joseph C. Boals, III and that the evidence preponderates against the trial court's award of 25% permanent partial disability to the left arm. For reasons stated in this opinion, We affirm the judgment of the trial court.
Authoring Judge: Allen W. Wallace, Sr. J.
Originating Judge:George R. Ellis, Chancellor |
Gibson County | Workers Compensation Panel | 08/15/03 | |
| Edward Ring v. Chemetals, Inc.
W2002-01638-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court 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. Claimant has appealed the trial court's decision awarding 15% permanent partial disability to the body as a whole as being inadequate. Claimant seeks an increase award and particularly urges a finding of total disability benefits. Appellee (hereinafter "Employer") filed in its brief a request for consideration of post-judgment evidence. Employer also requests the panel take judicial notice of active and passive range of motion. As discussed below, the panel has concluded the evidence does not preponderate against the trial court's finding and Employer's request for consideration of post- judgment acquired evidence is denied. Employer's request that the panel take judicial notice of active and passive range of motion is also denied. 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 JANICE M. HOLDER, J. and D. J. ALISSANDRATOS, SP. J., joined. Charles L. Hicks, Camden, Tennessee, for the appellant, Edward Ring. Sean Antone Hunt, Memphis, Tennessee, for appellee, Chemetal, Inc. MEMORANDUM OPINION The employee, or claimant, Edward Ring, initiated this civil action in the Circuit Court of Benton County, Tennessee to recover workers' compensation benefits for injuries he sustained initially on October 23, 1999, and again on August 8, 2, to his shoulders. Following the trial on May 3, 22, the trial court awarded 15% permanent partial disability to the body as a whole. The claimant has appealed this award as being inadequate. Appellant review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the finding of facts, unless the preponderance of the evidence is otherwise. Tenn. Code. Ann. Section 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:Jullian P. Guinn, Circuit Judge |
Benton County | Workers Compensation Panel | 08/14/03 | |
| Johnny Ray Arnold, Sr. v. Corrections Corporations of America (Whiteville Facility
W2002-02299-WC-R3-CV
The trial court found the plaintiff suffered a 75 percent disability to his body as a whole, and awarded permanent partial disability benefits, the cost of medical treatment, and temporary total disability benefits pursuant to the Workers' Compensation Act of the State of Tennessee. As discussed below, the panel has concluded the evidence does not preponderate against the trial court's findings and we affirm.
Authoring Judge: Allen W. Wallace, Sr. J.
Originating Judge:Joe C. Morris, Chancellor |
White County | Workers Compensation Panel | 08/14/03 | |
| Lisa David v. Soaring High Sales
W2002-02781-WC-R3-CV
In this appeal, the employer contends that the evidence preponderates against the trial court's finding that (1) plaintiff was performing an errand that benefitted the employer at the time of the accident, and (2) that plaintiff suffered permanent partial disability to the body as a whole in the amount of 65%. As discussed below, the panel has concluded the judgment should be affirmed.
Authoring Judge: Robert L. Childers, Sp. J.
Originating Judge:Joe C. Morris, Chancellor |
Madison County | Workers Compensation Panel | 08/11/03 | |
| Ernest L. Atkinson v. Signage, Inc.,
M2002-01491-WC-R3-CV
In this appeal, the employer and its insurer insist the trial court erred in awarding permanent total disability benefits where the injured employee has returned to work for the same employer at a wage equal to or greater than his pre-injury wage and is working forty hours per week. The employer and its insurer also insist the trial court erred in commuting a portion of the award to a lump sum. As discussed below, the panel has concluded the trial court committed no reversible error.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Robert E. Lee Davies, Chancellor |
Hickman County | Workers Compensation Panel | 08/04/03 | |
| Timothy W. Ferguson v. J. H. Brooks Roofing & Sheet
M2002-01725-WC-R3-CV
In this appeal, the employer and its insurer insist the trial court erred in its findings with respect to the employee's average weekly wage and the extent of his permanent partial 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:Ellen Hobbs Lyle, Chancellor |
Davidson County | Workers Compensation Panel | 08/04/03 | |
| Romach, Inc. v. Anthony Cole
M2002-02399-WC-R3-CV
In this appeal, the employee insists the trial court erred in admitting evidence of prior criminal convictions and in dismissing his claim. As discussed below, the panel has concluded the trial court committed no reversible error.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Russ Heldman, Chancellor |
Williamson County | Workers Compensation Panel | 08/04/03 | |
| Margie Kelly v. White Consolidated Industries, Inc.
M2002-01755-WC-R3-CV
In this appeal, the employee insists the trial court erred in dismissing her claim for insufficient evidence of a causal connection between her employment and her medical condition. As discussed below, the panel has concluded the evidence fails to preponderate against the finding of the trial court.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Carol Catalano, Chancellor |
White County | Workers Compensation Panel | 08/04/03 | |
| Patricia A. Maxwell v. State Farm Fire & Casualty
M2002-02750-WC-R3-CV
In this appeal, the appellant insists the trial court erred in summarily dismissing her claim upon the finding that she was not a covered employee. As discussed below, the panel has concluded the case should be remanded for a full trial on the merits.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Robert E. Corlew, III, Chancellor |
Rutherford County | Workers Compensation Panel | 08/04/03 | |
| Ralph Laverne Gholston v. Brown Chain Link Fence
M2002-02038-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists (1) the evidence preponderates against the trial court's finding of permanent and total disability and (2) the trial court erred by ordering the non-commuted benefits to be paid over a shortened period of time. As discussed below, the panel finds no reversible error in the record, but modifies the judgment with respect to the second issue, there being no objection to it. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and JAMES L. WEATHERFORD, SR. J., joined. Randolph A. Veazey, Glasgow & Veazey, Nashville, Tennessee, for the appellants, Brown Chain Link Fence Construction Co., Inc. and Westfield Companies Edwin Z. Kelly, Jr., Kelly & Kelly, Jasper, Tennessee, for the appellee, Ralph Laverne Gholston Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellee, Second Injury Fund MEMORANDUM OPINION The employee or claimant, Mr. Gholston, initiated this civil action to recover workers' compensation benefits for an injury by accident arising out of his employment. His amended complaint named the employer, Brown Chain Link Fence Construction Co., Inc., the employer's insurer, Westfield, and the Second Injury Fund as defendants. After a trial, the trial court found the employee to be permanently and totally disabled and apportioned the award between the employer and the Second Injury Fund. The employer and its insurer have 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) (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: Joe C. Loser, Jr., Sp. J.
Originating Judge:Jeffrey F. Stewart, Chancellor |
Marion County | Workers Compensation Panel | 06/26/03 | |
| James Donald Lattimore v. Cna Insurance Company,
M2002-01718-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 Second Injury Fund insists the trial court erred in awarding disability benefits in excess of the limitation provided by law where the injured worker was more than sixty years old at the time of the injury. As discussed below, the panel has concluded the Second Injury Fund is not entitled to credit for overpayment made by the employer. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Criminal Court Affirmed JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and JAMES L. WEATHERFORD, SR. J., joined. Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellant, Second Injury Fund William Joseph Butler and E. Guy Holliman, Farrar, Holliman & Butler, Lafayette, Tennessee, for the appellee, James Donald Lattimore Daniel H. Rader, III and Lane Moore, Moore, Rader, Clift & Fitzpatrick, Cookeville, Tennessee, for the appellees, CNA Insurance Company and TRW Steering Systems, Inc. MEMORANDUM OPINION The employee or claimant, Mr. Lattimore, initiated this civil action to recover workers' compensation benefits for alleged injuries to his back, left leg and right leg resulting from an accident arising out of and in the course of his employment with the employer, TRW Steering Systems, in December 1999. He demanded, among other things, permanent partial disability benefits. The claim was settled on October 6, 22. The settlement order recites that the accident occurred on December 15, 1999 and provided for an award based on 19 weeks of benefits at the employee's agreed compensation rate. On March 8, 21, the claimant applied for reconsideration of the above award pursuant to Tenn. Code Ann. _ 5-6-241(a)(2), averring that he was no longer working for the employer. Because the claimant was seeking permanent total disability benefits and had disability pre-existing the December 1999 accident, the Second Injury Fund was added as an additional defendant. Both defendants denied liability. After a trial on the merits, the trial court found the employee to be permanently and totally disabled as a result of the combined effects of his pre-existing disabilities and those resulting from his work related accident of December 1999. The trial court found his disability from the work related accident to be 27 percent to the body as a whole and apportioned the award 27 percent to the employer and 73 percent to the Second Injury Fund. Because the employee was more than sixty years old at the time of his work related accident, the percentages were applied to 26 weeks, as required by Tenn. Code Ann. _ 5-6-27(4)(A)(I).1 The employer was given credit for benefits already paid as a result of the earlier settlement, but the Fund was not given credit for payments made by the employer in excess of its ultimate liability. As a result of the award, the employee will actually receive, when combined with the benefits already paid by the employer, 298.8 weeks of benefits or benefits for 38.8 weeks more than the maximum allowed by the above statute for workers more than sixty years old at the time of their compensable injuries. The Second Injury Fund contends its liability should be reduced, therefore, by 38.8 weeks. Put another way, the Fund seeks credit against its liability for benefits paid by the employer in excess of the employer's ultimate liability. The fund does not take issue with the factual findings of the trial court, including the apportionment of liability between it and the employer. 1. (4)(A)(i) PERM ANE NT TO TAL DISAB ILITY . For permanent total disability as defined in subdivision (4)(B), sixty-six and two-thirds percent (66 2/3 %) of the wages received at the time of the injury, subject to the maximum weekly benefit and minimum weekly benefit; provided, that if the employee's average weekly wages are equal to or greate r than the minim um weekly b enefit, the e mplo yee sha ll receive not less tha n the m inimum week ly bene fit; provided further, that if the employee's average weekly wages are less than the minimum weekly benefit, the employee shall receive the full amount of the employee's average weekly wages, but in no event shall the compensation paid be less than the minimum weekly benefit. This compensation shall be paid during the period of the pe rman ent total d isability until the e mplo yee is, by a ge, eligib le for full be nefits in the O ld Ag e Insur ance Be nefit Program under the Social Security Act; provided, that with respect to disabilities resulting from injuries which occur after 6 years of age, regardless of the age of the employee, permanent total disability benefits are payable for a perio d of two hund red six ty (26 ) week s. Such com pensation p ayme nts shall b e red uced by the a mou nt of any o ld age insurance benefit payments attributable to employer contributions which the employee may receive under the Social Security Act, U.S.C., title 42, chapter 7, subchapter II, as amended. -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Clara Byrd, Judge |
Wilson County | Workers Compensation Panel | 06/26/03 | |
| Shirley K. Hensley v. England/Corsair Upholstery
E2002-01763-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 5 percent permanent partial disability to the body as a whole. The employer has appealed insisting the expert medical testimony is not sufficient to support the award. The judgment is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed. THAYER, SP. J., in which ANDERSON, J., and, BYERS, SR., J., joined. J. Steven Collins, of Knoxville, Tennessee, for Appellants, England/Corsair Upholstery Manufacturing Company, Inc., and Lumbermen's Underwriting Alliance. Edwin A. Anderson, of Knoxville, Tennessee, for Appellee, Shirley K. Hensley. MEMORANDUM OPINION The trial court awarded the employee, Shirley K. Hensley, 5 percent permanent partial disability as a result of sustaining an occupational disease. The employer and insurance carrier have appealed insisting the evidence is not sufficient to support the award. Facts The employee had been working as a seamstress or sewing operator for about thirty years. At the time of the trial, she was fifty-five years of age and had completed the ninth grade in school. In August 1993 she started working for the defendant furniture manufacturing company. She testified she worked with fabric material most of the time and that in handling fabric, her hands became very dry. She and other sewing operators kept lotion for use on their dry hands. She said that about one year prior to stopping work in November 1998, she began to work with leather. Her hands started swelling and cracking. It got so bad that they would bleed. She stated the green dye would actually rub off on her hands and she tried wrapping her hands with gauze and masking tape. Sometime later, she testified her "feet broke open." She worked with leather for about a year before going to the doctor. She eventually saw Dr. Ellis who treated her for several years. He recommended she see Dr. Alexander, a dermatologist. She stated she went to see him and his treatment was the same as Dr. Ellis and more expensive so she quit going to Dr. Alexander and returned for treatment with Dr. Ellis. After being off from work for about six months, she was terminated. The employee testified she had tried to find work with Wal-Mart as a greeter but when they saw the condition of her hands and asked what had caused the problem, Wal-Mart officials advised her they did not have a job available. She said her hands and feet have healed to some extent but she has not found any employment. Dr. Roy C. Ellis, a family physician, testified by deposition, and said he first saw Ms. Hensley on August 22, 1998 and she had severe hand dermatitis; that he prescribed several medications; she returned to work on September 8; she came back to see him on September 28 showing signs of severe rash and allergic dermatitis which he felt was definitely due to the fabric, either leather or vinyl, or both. He stated that over a period of time when she was off work, she would get better and when she returned to work, she got worse. He opined her "work conditions led up to and caused the allergic dermatitis." The doctor stated the medical impairment would fall into class three in the range of 25 to 54 percent and he gave her a 5 percent impairment. Dr. Jay Hammett, a family practice physician testifying by deposition, performed an independent medical examination on October 8, 1999 and examined the records of several other doctors. He learned she was also being treated for a thyroid condition and hypertension and thought her problems could be related to her medications for these problems. He said he thought the opinion of Dr. Ellis on causation was speculation since a skin biopsy or patch test had not been conducted. He was of the opinion she could resume her sewing work. Also, if her work conditions did cause her problems, he felt her impairment would be in the class two range of 1 to 24 percent and he fixed her impairment rating at 2 percent. Defendant's plant manager and company nurse both testified Ms. Hensley told them during July 1998 her problem was not work-related. However, these conversations were prior to the August 1998 visit to Dr. Ellis. The plant nurse admitted that during November 1998 she advised her doctor had said her condition was work-related. The nurse also testified no other employee had complained of the same problem. -2-
Authoring Judge: Thayer, Sp. J.
Originating Judge:Hon. Billy Joe White, Chancellor |
Knox County | Workers Compensation Panel | 06/24/03 | |
| Phyllis Patrice Braden v. Nissan North America, Inc.,
M2002-01173-WC-R3-CV
In this case, the employee sustained an elbow injury caused by her repetitive work activities. The trial court found that the employee had suffered a 1% vocational disability to her right arm. In her appeal, the employee argues that the evidence preponderates against a finding of 1% and that the judgment in this matter should be increased to adequately compensate the plaintiff for her loss of employment opportunity. For the reasons stated in this opinion, We affirm the judgment of the trial court.
Authoring Judge: James L. Weatherford, Sr.J.
Originating Judge:Robert E. Corlew, III, Chancellor |
Rutherford County | Workers Compensation Panel | 06/23/03 | |
| Darlene Sue Singleton v. Shelby Williams, Inc.
E2002-01697-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 appeals the trial court's decision awarding the plaintiff compensation of $85,228.8 for a sixty percent permanent partial disability to each arm. Specifically, the defendant argues that the trial court erred: in allowing the introduction of the standard medical report or deposition of Dr. William Gutch into evidence; in accepting the testimony and opinion of Dr. Gutch over that of the treating physician; and by awarding a sixty percent permanent partial disability to each arm. We affirm the judgment of the Circuit Court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Grainger County Circuit Court is Affirmed BYERS, SR. J., in which ANDERSON, J., and THAYER, SP. J., joined. Joseph J. Doherty, of Morristown, Tennessee, for the appellant, Shelby Williams, Inc. James M. Davis, of Morristown, Tennessee, for the appellee, Darlene Sue Singleton. 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 (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 (Tenn. 1988). Facts The plaintiff is forty-six years of age and worked as an upholster for the defendant company for twenty-four years. She has a 7th grade education and has problems reading and writing. Her duties for the defendant require the use of staple gun, welt gun, scissors, and wire cutter. In January of 2, the plaintiff alleged repetitive use injuries to both arms. She testified that she provided notice of her injuries to her employer on June 8, 2. She was then referred to Dr. Philip Bickers, who referred her to Dr. Robert Ivy for treatment. In November of 2, Dr. Ivy performed surgery on the employee's left wrist; in January 21, he performed surgery on the employee's right wrist. The employee later saw Dr. William Gutch at the direction of her attorney. The plaintiff returned to work without restrictions six weeks later. She testified that she has not seen Dr. Ivy or any other doctor since her return to work. Medical Evidence The medical evidence for the purpose of the issues raised in this trial was provided by the deposition testimony of Dr. Robert Ivy and Dr. William Gutch. Dr. Ivy, an orthopedic surgeon in Knoxville, testified that he first saw the plaintiff on October 3, 2, when she was referred to him by her workers' compensation carrier. At that visit he evaluated her for complaints of pain and numbness in both of her hands. He took her history and performed a physical examination. Dr. Ivy testified that he diagnosed the plaintiff with severe bilateral carpal tunnel syndrome and recommended release surgery, which he performed on November 17, 2 (left arm), and January 5, 21 (right arm). He testified that the plaintiff responded well to the surgeries and he placed her at maximum medical improvement on March 2, 21. He rated her at five percent permanent partial impairment to each upper extremity and returned her to work with no restrictions. Dr. Gutch, a retired orthopedic surgeon who currently uses his medical license chiefly for independent medical examinations for the purpose of litigation, testified that he examined the plaintiff on October 1, 21. He testified that he took a history from the plaintiff, reviewed her medical records (including those of Dr. Ivy,) and performed a physical examination, including tests of range of motion and grip strength. He estimated that this process took approximately one hour. Dr. Gutch testified that based upon her history and the results of his examination, he agreed with Dr. Ivy's diagnosis and treatment of the plaintiff, but he disagreed with Dr. Ivy's impairment rating. Dr. Gutch assigned the plaintiff a total impairment of eight percent to her left upper extremity and eight percent to her right upper extremity. He also restricted the plaintiff to avoid excessive and repetitive finger and wrist motion, pulling and tugging, and the use of vibratory tools. Discussion Although we are required to weigh the evidence in a case in depth to determine where the preponderance of the evidence lies, we are required to make such evaluation within the confines of -2-
Authoring Judge: Byers, Sr. J.
Originating Judge:Duane O. Slone, Judge |
Knox County | Workers Compensation Panel | 05/29/03 | |
| Michael David Palmer v. Minco, Inc. and Hartford
E2002-01634-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 appeals the trial court's decision to award a partial vocational disability of sixty-one percent to each hand. Specifically, the defendant argues that the trial court erred in finding the plaintiff had suffered a permanent anatomical injury and thus erred in awarding permanent disability benefits or alternatively that the evidence presented in the case does not support the award of permanent partial disability. We affirm the judgment of the Chancery Court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Greene County Chancery Court is Affirmed BYERS, SR. J., in which ANDERSON, J., and THAYER, SP. J., joined. Robert R. Davies, of Knoxville, Tennessee, for the appellant, Minco, Inc. John T. Milburn Rogers, of Greeneville, Tennessee, for the appellee, Michael David Palmer. 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. 1988). Facts The plaintiff (employee) is a right-handed male thirty-six years of age. He completed the eleventh grade and obtained his GED in 1984. He also attended Walter State for approximately eighteen months where he took some college courses. The plaintiff then attended "Vo Tech" in Greeneville in auto body collision and repair. Prior to working for the defendant, the plaintiff worked at Master Guard, his father's company, where he was employed in sales and service. The plaintiff testified that he knows how to install home fire and security alarms. He further testified that in regard to installing home security and fire alarms there are really no physical requirements involved in doing the job. The plaintiff also worked at W&R Paint and Supply as a paint technician, a job he testified that he could return to in his current condition. While working for the defendant the Plaintiff was an Operator B which means he assisted Operator A in keeping furnaces loaded with sand which was then turned into glass. On April 12, 1999, while climbing a ladder, the Plaintiff's foot missed the ladder and Plaintiff caught himself by grabbing a rung on the ladder with both hands to prevent him from falling. He testified that his hands began hurting immediately and felt like they were "numb and jammed". He testified that he also did not have any feeling in his fingers. He reported the injury to his supervisor who instructed him to see a doctor, which he did the next day. The plaintiff testified that he was treated by Dr. John Holbrook, who prescribed Vioxx for numbness and tingling in the plaintiff's hands. The plaintiff was later seen by Dr. William Kennedy for the purpose of an independent medical evaluation. The plaintiff was later examined by Dr. Norman Hankins and Dr. Rodney Caldwell, vocational disability experts, for the purpose of determining his vocational disability. The plaintiff subsequently quit his job with the defendant and began working for an automobile body repair shop, but he testified that he had to quit that job too because he could no longer work with his hands. Medical Evidence The medical evidence for the purpose of the issues raised in this trial was provided by the deposition testimony of Dr. John Holbrook and Dr. William Kennedy. Dr. Holbrook, an orthopedic surgeon in Johnson City, testified that he examined the plaintiff for the purpose of treatment on May 5, 1999. At that time, the plaintiff gave Dr. Holbrook a history that included the slip and fall incident on the ladder of April 12, 1999. Dr. Holbrook testified that his examination of the plaintiff on May 5 led him to believe that the plaintiff had stretched the volar -2-
Authoring Judge: Byers, Sr. J.
Originating Judge:Thomas R. Frierson, Ii, Chancellor |
Knox County | Workers Compensation Panel | 05/29/03 | |
| Robert Foster v. Morrow Trucking, Inc.,
W2002-00041-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. The trial judge found the plaintiff sustained a compensable injury to his back as a result of a fall. Further, the trial judge found the plaintiff had sustained a previous disabling condition by reason of diabetes and spondylolisthesis, which were non-work related conditions, and found that the current disability coupled with the pre-existing disabilities rendered the plaintiff totally and permanently disabled. The trial judge applied Tenn. Code Ann. _ 5-6-28(a) and ordered the award to be compensation for a period of 842 weeks and 8 days. The defendant was ordered to pay 421 weeks and 4 days of the award and the Second Injury Fund was ordered to pay 421 weeks and 4 days of the award thereafter. The trial judge, however, failed to make specific findings of fact regarding the extent of disability the employee would have experienced without any preexisting disabilities. We therefore remand the case so that such a determination can be made. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Case Remanded JOHN K. BYERS, SR. J., in which JANICE M. HOLDER, J., and JOE C. LOSER, SP. J., joined. Richard W. Mattson, Nashville, Tennessee, for appellants, Morrow Trucking, Inc. and Logistics Personnel Corporation. Ricky L. Boren, Jackson, Tennessee, for appellee, Robert Foster. Paul G. Summers, Attorney General and Reporter; E. Blaine Sprouse, Assistant Attorney General, for appellee, Second Injury Fund, State of Tennessee. 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. 1988). Facts The plaintiff was forty-nine years of age at the time of this trial. He had completed nine years of school and does not have a GED. His work history is primarily labor-type jobs and truck driving. At the time the plaintiff was hired by the defendant, he submitted a physical report to the defendant. In that report, the plaintiff reported that he had diabetes and was taking pills for it. The record reflects the plaintiff told the defendant at the time of the pre-hire interview that he had a significant diabetic problem. The plaintiff testified that to be able to drive a truck diabetics had to be controlled by medication but if the diabetic is controlled by insulin a person is prohibited by Department of Transportation [DOT] regulations from driving. The plaintiff had been treated for back pain and diabetes prior to going to work for the defendant. According to his physician of many years, the plaintiff was diagnosed with diabetic peripheral neuropathy, a disease caused by uncontrolled diabetes, in June of 1997. The plaintiff began working for the defendant in October of 1999. On or about November 4, 1999, as the plaintiff was descending from his truck to put fuel in the tank, he fell and struck the left side of his back on the concrete platform upon which the pumps sat. The plaintiff attempted to continue his assigned delivery route but was unable to do so and had to return to the drivers' terminal because of back pains. The plaintiff subsequently saw Dr. Michael Glover for treatment and Dr. Joseph C. Boals for evaluation. The plaintiff testified that as a result of his back injury he was ultimately unable to drive a truck because his left leg became so weak he could not depress the clutch pedal on a truck. Medical Evidence Dr. Y. N. Pakkala testified that he first started treating the plaintiff in 1993. The plaintiff complained of low back pain and was given medication. In March of 1994, the plaintiff again complained of back pain. Dr. Pakkala found a muscle spasm suggesting a sprain of the plaintiff's back. In April 1995, he diagnosed the plaintiff as being diabetic. Dr. Pakkala testified the plaintiff -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:C. Creed Mcginley, Judge |
Hardin County | Workers Compensation Panel | 05/22/03 | |
| Barbara Pritchett v. Wal-Mart Stores, Inc., Larry
E2001-01257-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 employee appeals the dismissal of her claim for workers' compensation benefits asserting that the trial court erred in admitting findings of the Social Security Administration, and in finding that her injury was non-compensable. We affirm.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:John Hagler, Circuit Judge |
Knox County | Workers Compensation Panel | 05/20/03 | |
| Elizabeth Camilla Whitlow v. Milan Seating Systems,
W2002-00451-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. The plaintiff developed bilateral carpal tunnel syndrome arising out of and in the course of her employment by the defendant. The trial judge found the plaintiff had sustained a 1 percent permanent partial impairment to each arm. The plaintiff appeals from the judgment of the trial court and says the trial judge erroneously excluded the deposition testimony of an orthopedic surgeon and further says the evidence preponderates in favor of an award in excess of 1 percent to each arm.1 We find the award should be set at 35 percent to each arm. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified and Remanded JOHN K. BYERS, SR. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, SP. J., joined. Jay E. DeGroot, Jackson, Tennessee, for the appellant, Elizabeth Camilla Whitlow. P. Allen Phillips and Jay Dustin King, Jackson, Tennessee, attorneys for appellees, Milan Seating Systems, assumed name for Intier Automotive Seating of America, Inc. and American Casualty Company of Reading, Pennsylvania. MEMORANDUM OPINION 1 We need not pass upon the exclusion of the medical deposition in reaching a decision in this case. Facts The plaintiff was forty years of age at the time of trial, divorced, and the mother of one child who apparently is grown. She completed eleven years of school, does not have a GED and is trained only for sewing, the work she does for the defendant. There is no dispute concerning the compensability of the plaintiff's gradual injury (carpal tunnel syndrome). The plaintiff received medical treatment from the defendant and is continuing to do the same work for the defendant after treatment as she did before. In the course of her work, the plaintiff is required to use her hands, arms and fingers repetitively to fulfil her employment. She testified that after working as the day goes on she begins to experience numbness and swelling in her hands. She testified she was unable to perform the amount of work she did prior to developing carpal tunnel syndrome and that she had difficulty meeting production requirements. The plaintiff gave further testimony concerning her inability to do certain household chores. The plaintiff's supervisor testified the plaintiff had not shown any inability to do the work assigned to her nor did she know of any complaint concerning the plaintiff's lack of performance. The supervisor testified she had not checked the records to determine the amount of production the plaintiff was doing prior to testifying. Medical Evidence The only medical evidence considered by the trial judge was that of Dr. Claiborne A. Christian, an orthopedic surgeon. Dr. Christian testified he first saw the plaintiff March 8, 21. He diagnosed the plaintiff's condition as bilateral carpal tunnel syndrome with sensory and motor involvement. He testified this involvement made the reversal of the condition more difficult because the sensor and motor loss indicated the condition had existed for a longer time before treatment began than was usual. Dr. Christian testified surgery was necessary for release of the carpal tunnel syndrome. Surgery was performed on the plaintiff's left hand on March 23, 21 and on the right hand on April 27, 21, which included cutting of the carpel ligament. Dr. Christian testified the plaintiff did well with both surgeries. He placed her on restriction of no repetitive use of her hands until the incisions from surgery were healed. On June 7, 21 the plaintiff reported to Dr. Christian that the numbness and tingling she had previously had in her hands was "all right" but that she had no grip strength. On July 5, 21 the plaintiff saw Dr. Christian again. On this visit the plaintiff reported her left hand was doing fine but that she felt weakness and loss of grip in her right hand. Dr. Christian released the plaintiff to return to work on July 9, 21, without any restrictions. He testified the plaintiff reached maximum medical improvement on that date. He found she had suffered a 4 percent permanent partial impairment to both arms as a result of the carpal tunnel -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:George Ellis, Chancellor |
Gibson County | Workers Compensation Panel | 05/19/03 | |
| Randy Selby v. Highways, Inc.
M2002-00340-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 appeals the trial court's decision on the grounds that it argues that the medical testimony preponderates against the trial court's finding that the August 22, 1998, incident was the cause of the plaintiff's psychological injury, that the trial court erroneously allowed Dr. John Averitt, a clinical psychologist, to testify on the issue of permanency and causation, that the trial court erroneously relied upon the testimony of Dr. Averitt in weighing the medical expert evidence, and that the trial court erroneously allowed Dr. Averitt to testify on the issue of maximum medical improvement. We affirm the decision of the trial court but modify the judgment as to the date of the plaintiff's maximum medical improvement. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Putnam County Circuit Court is Affirmed as Modified BYERS, SR.J., in which DROWOTA, C.J., and LOSER, SP.J., joined. John W. Barringer, Jr., of Nashville, Tennessee, for the Appellant, Highways, Inc. James P. Smith, of Crossville, Tennessee, for the Appellee, Randy Selby. 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. 1988). Facts The plaintiff (employee) was thirty-eight years of age at the time of trial. He testified that he left high school in the ninth grade and began working on a tobacco farm where he worked for approximately two years. He then worked on another farm, in a garment factory, and in a foam rubber factory. He then got married, obtained his graduate equivalency degree, and attended a communications vocational school in the state of Washington. He did not obtain a degree from this school, despite his having thought he did. His final job before working for the defendant was at a paving company where he ran machinery. The plaintiff testified that he began working for the defendant company in approximately 1993. He alleges that he received psychological injuries from an incident that occurred on August 22, 1998, in the course and scope of his employment with Townsend Tree Service. Specifically, the plaintiff alleges that while he was working on a sand crusher at a sand plant, he was "hit on the side of the head with a coke can which caused him to become psychologically unstable." The plaintiff testified that over the course of the years he worked for the defendant there were several "incidents that made him feel bad," and he felt he was abused, harassed, teased, and outright tortured by his co- workers. The testimony at trial showed that this harassment included the plaintiff being shot with a BB gun, being pushed into a lake, getting caught in flume box and drenched with thousands of gallons of water, having lit cigarettes placed in his pockets, having starter fluid sprayed down his pants, and having a rope tied around his neck and pulled by a loader. The plaintiff testified that following the can-throwing incident of August 22, 1998, he went to the emergency room after his eye began to swell and his mother could tell that something was wrong with him. In the emergency room, medical personnel determined that the plaintiff indeed had an injury to the right side of his face. Following his visit to the emergency room, the plaintiff was treated for symptoms of anxiety and panic. He testified that these symptoms manifested themselves in anxiety, hypersensitivity, difficulty focusing, difficulty sleeping, and delusions, including the delusion that his co-workers are trying to kill him. He was treated by Dr. Kirby Pate and examined by several doctors and psychiatrists who testified at trial. Pursuant to the testimony of these doctors, the trial court held that the plaintiff was permanently and totally disabled as a result of the injury of August 22, 1998, to his mental faculties. Medical Evidence The medical evidence for the purposes of the issues raised in this trial was presented by the depositions of Dr. Kirby Pate, Dr. James W. Varner, Dr. Ben Bursten, and Dr. Susan K. Vaught, and by the live testimony of Dr. John Averitt. Dr. Pate, a licensed psychiatrist in Nashville, Tennessee, testified by deposition that he first -2-
Authoring Judge: Byers, Sr.J.
Originating Judge:John A. Turnbull, Judge |
Putnam County | Workers Compensation Panel | 05/15/03 | |
| Clois Junior Clark v. Peterbilt Motor Company
M2002-00452-WC-R3-CV
The plaintiff filed this compensation complaint in which he alleged he sustained injury to both arms as a result of continuing repetitive use thereof while working as a welder for the plaintiff. The trial judge found in favor of the plaintiff and awarded him temporary total disability benefits and found he had sustained a 30 percent permanent partial impairment to both arms. The defendant contends the trial judge erred in finding the plaintiff's medical problems arose out of and in the course of his employment and that the award of 30 percent impairment to each arm was excessive. We affirm the judgment of the trial court.
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:C. L. Rogers, Judge |
Sumner County | Workers Compensation Panel | 05/05/03 | |
| Cynthia Ellen Walker v. Advance Transformer Company,
E2001-03074-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 Second Injury Fund claims the trial court erred (1) in failing to make specific finding of the extent of the employee's disability attributable to a scheduled member as a percentage of her total disability, and (2) by ordering the Second Injury Fund to pay permanent and total disability benefits to age 65 after the employer paid 6 weeks of benefits for the injury to a scheduled member. We modify in part, reverse in part and remand. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Morgan County Chancery Court is modified in part and reversed in part. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, JUSTICE, and JOHN K. BYERS, SR. J., joined. Paul G. Summers, E. Blaine Sprouse, Nashville, Tennessee, for the Appellant, The Second Injury Fund. Arthur G. Seymour, Robert L. Kahn, Frantz, McConnell & Seymour, LLP, Knoxville, Tennessee, for the Appellee, Advance Transformer Company and The Travelers Indemnity Company. 1 MEMORANDUM OPINION Facts Cynthia Ellen Walker injured her left arm on June 27, 2 in the course and scope of her employment with Advance Transformer Company ("Advance"). Ms. Walker had pre- existing work-related and non-work related medical conditions, and the arm injury resulted in her permanent, total disability. Ms. Walker had received a worker's compensation award in 1993 of 2 percent to both arms for bilateral carpal tunnel syndrome. In 1998, she received a 1.85 permanent partial disability settlement for a 1996 injury to her left shoulder. She had undergone several other surgeries, including two cervical operations and two knee surgeries. Dr. Michael A. McKay treated Ms. Walker for the left arm injury, diagnosed as a fractured distal radius extending into her wrist joint. He assigned a 15 percent medical impairment to the left upper extremity, which translates to nine percent whole body impairment under the AMA Guides. Dr. Rodney Caldwell, Ph.D., a vocational expert, testified that Ms. Walker was already 55-6 percent vocationally disabled when she sustained the June 27, 2 injury. The trial court found that the case was governed by Tenn. Code Ann. _ 5-6-28 (a)(1). It found Ms. Walker to be permanently totally disabled and fixed the vocational disability for the injury to the left arm at 3 percent. It ordered the employer, Advance, to pay 3 percent of 2 weeks, or 6 weeks of benefits, for the left arm injury, and the remaining balance of the total disability award to be paid to age 65 by the Second Injury Fund ("Fund"). Standard of Review The standard of review in a worker's compensation case is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Questions of law are reviewed de novo without a presumption of correctness. Smith v. U.S. Pipe & Foundry Co., 14 S.W. 3d 739, 742 (Tenn. 2) Issues 1. Did the trial court err in failing to make a determination of the percentage of vocational disability attributable to Ms. Walker's last injury as a percentage of her total disability? 2. Did the trial court err in failing to properly apportion liability for Ms. Walker's permanent total disability? 2
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Frank V. Williams, Chancellor |
Knox County | Workers Compensation Panel | 05/02/03 | |
| Teresa L. Crisp v. Liberty Mutual Insurance Company
M2002-01236-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 summarily dismissing her claim for insufficient evidence of a connection between the employment and the State of Tennessee. As discussed below, the panel has concluded there is no genuine issue of material fact and that the employee's insurer is entitled to judgment as a matter of law. 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 ADOLPHO A. BIRCH, JR., J., and JOHN K. BYERS, SR. J., joined. Michael A. Walker, Jamestown, Tennessee, for the appellant, Teresa L. Crisp Joe M. Looney, Crossville, Tennessee, for the appellee, Liberty Mutual Insurance Company MEMORANDUM OPINION The employee or claimant, Ms. Crisp, initiated this civil action to recover workers' compensation benefits. The employer's insurer, Liberty Mutual Insurance Company, moved for summary judgment of dismissal pursuant to Tenn. Code Ann. _ 5-6-115. The trial court granted the motion. The claimant has appealed. Summary judgment is almost never an option in workers' compensation cases; Berry v. Consolidated Systems, Inc., 84 S.W.2d 445, 446 (Tenn. 1991). However, when there is no dispute over the evidence establishing the facts that control the application of a rule of law, summary judgment is an appropriate means of deciding such issues as whether an action is barred by the applicable statute of limitations or by res judicata; whether a party has standing; or whether the court has jurisdiction. Id at 446. The dispositive issue in this case involves the applicability of a rule of law to undisputed facts. The standard of review on appeal of a grant of summary judgment is de novo upon the record without a presumption of correctness to determine whether the absence of genuine and material factual issues entitle the movant to a judgment as a matter of law. Goodloe v. State, 36 S.W.3d 62, 65 (Tenn. 21) The movant must either affirmatively negate an essential element of the non- movant's claim or conclusively establish an affirmative defense; mere conclusory assertions that the non-movant has no evidence are insufficient; and if the movant does not negate a claimed basis for the suit, the non-movant's burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summary judgment must fail. If, however, the movant successfully negates a claimed basis for the suit, the non-movant may no longer simply rely upon the pleadings, but must then establish the existence of the essential elements of the claim or the non- existence of the defense. Finister v. Humboldt General Hosp., Inc., 97 S.W.2d 435, 438 (Tenn. 1998). The claimant entered into a contract of hire with the employer, M & P Utilities, Inc., a Minnesota Corporation, while in the State of Missouri. She worked for the employer in several states before suffering a serious back injury while working in Colorado, where she was hospitalized for five days. She returned to her home state, Tennessee, after leaving the hospital and has received most of her medical care in Tennessee. The claimant rejected an offer to settle her workers' compensation claim under Minnesota law and sued for benefits under Tennessee law. A worker who is injured outside the territorial limits of Tennessee is covered under the Act if, and only if, he or she would have been covered if the injury had occurred within the state and (1) the employment was principally localized within Tennessee or (2) the contract of hire was made in Tennessee. Tenn. Code Ann. _ 5-6-115. Ordinarily, though, if an injury occurs in another state, benefits under the Tennessee Act are not recoverable unless it can be shown that the contract of hire was made in Tennessee. Perkins v. BE & K, Inc., 82 S.W.2d 215, 216 (Tenn. 199). The claimant argues that the statute should be construed to provide coverage under the circumstances of this case because the employer was qualified to do business in Tennessee when she was injured, is a licensed contractor in Tennessee, has had continual workers' compensation insurance in Tennessee since 1996, has bid for jobs in Tennessee for the past several years and the claimant presently works on one of them, has offered Tennessee workers' compensation to its employees injured in Texas, has established an office in Fentress County, the claimant's treating physicians are located in Tennessee, and Liberty Mutual Insurance Company has been providing Tennessee employers with workers' compensation insurance for decades. Under the Tennessee Workers' Compensation Act, the right of an employee who suffers a work-related injury to recover compensation benefits from his employer is governed by the statutes -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Billy Joe White, Chancellor |
Fentress County | Workers Compensation Panel | 05/02/03 | |
| City of Red Bank, Tennessee, et al. v. Kimilla R. Cofer
E2002-00192-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 City of Red Bank brought this suit against Kimilla Cofer, a police officer, to determine if it was liable under the provisions of the Workers' Compensation Act for injuries sustained by her in an automobile accident. The trial court found the injuries suffered by Cofer did not arise out of or in the course of her employment with the City. 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 Affirmed BYERS, SR. J., in which ANDERSON, J. and THAYER, SP. J., joined. W. Gerald Tidwell, Jr., Chattanooga, Tennessee, for the appellant Kimilla R. Cofer. David R. Hensley, Chattanooga, Tennessee, for the appellees, City of Red Bank, Tennessee and Tennessee Municipal League Risk Management Pool. MEMORANDUM OPINION Officer Kimilla R. Cofer was a police officer with the City. She was assigned by the City as the D.A.R.E. (Drug Abuse Resistance Education) Officer and she also performed normal patrol duty. Officer Cofer taught D.A.R.E. classes at three schools. In addition to teaching these classes, she would attend D.A.R.E. functions away from the school. If she attended D.A.R.E. functions outside the time of her normal duty hours, she would receive compensated time off instead of payment. On March 6, 1997, Officer Cofer worked her regular shift from 7: a.m. until 3: p.m. When she finished her shift, she drove to her home, donned a D.A.R.E. shirt, and waited for a skating party sponsored by the D.A.R.E. group to start. She left her home driving her own car, and was driving to the event when she was involved in an accident.1 There was evidence in the record that Cofer was expected to attend social functions of the students in the D.A.R.E. program such as the skating event on the day of the accident. She was permitted to drive a D.A.R.E. vehicle which was under the control of the city after her shift to these events if she obtained permission from her superior for its use. However, at the time of the accident she was driving her own vehicle. Cofer acknowledges that as a general rule an employee is not acting within the course of her employment unless the injury occurs on the employer's premises. Howard v. Cornerstone Medical Associates, 54 S.W.3d 238 (Tenn. 21); Lollar v. Wal-Mart Stores Inc., 767 S.W.2d 143 (Tenn. 1989). Under the holdings in these cases, an employee driving to her place of employment is not in the course of her employment. Cofer insists, however, that she as a police officer is always on duty because officers often make arrests or engage in other police-type investigations, etc,. while off duty. She relies on the cases of City of Gallatin v. Anderson, 354 S.W.2d 84 (Tenn. 1962), and Mayor and Alderman of the Town of Tullahoma v. Ward, 114 S.W.2d 84 (Tenn. 1938), in support of this position. We do not find these cases to support Cofer's claim for compensation. In Ward, the officer was walking along a street in Tullahoma on his way to his home. He was in uniform and carrying a weapon at the time. Ward was run down by a drunken driver. Ward later found and arrested the driver. The court held that Ward was in the course of his employment at the time because he was on the streets of his employer at the time and as such was entitled to coverage under the Workers' Compensation Act. The court's rationale was that Ward was on the premises of his employment, and still under all the obligations of his employment, in uniform, carrying his badge and weapon of office. The court concluded that because of this, Ward was patrolling the streets at the time and his destination was not controlling. In Anderson, the officer was off duty and on a personal mission. He attempted to make an arrest and was injured. The court held that the evidence showed that Anderson was acting in his capacity as an officer at the time of the injury. In this case, Cofer was not traveling on the streets of the city. She was not in uniform, she 1 The defendant received injuries in the accident but these are not at issue at this time in this case. -2-
Authoring Judge: Byers, Sr. J.
Originating Judge:Jackie Schulten, Judge |
Knox County | Workers Compensation Panel | 05/02/03 | |
| La-Z-Boy, Inc., v. Patricia Van Winkle
E2002-01423-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 case, the employer, La-Z-Boy, Inc., filed suit to resolve a workers' compensation dispute between La-Z- Boy, Inc., and Patricia Van Winkle, its employee. The trial court found the defendant sustained a one percent medical impairment to her left arm as a result of carpal tunnel syndrome and awarded her fifty percent disability to her left arm. The court found the defendant suffered no disability to the right arm as a result of carpal tunnel syndrome. The employer appealed the judgment and avers the trial court award is excessive based upon the medical evidence in this case. The employee asserts the trial court should have found her to be one hundred percent disabled based upon the evidence in the case. Further, the employee argues that the trial judge erroneously allowed an occupational therapist to give opinions on medical matters which were beyond his field of expertise. We reverse the judgment in this case and remand the case to the trial court for further proceedings. 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 E. RILEY ANDERSON, J., and ROGER E. THAYER, SP.J., joined. David C. Nagle, Chattanooga, Tennessee, for the appellant, La-Z-Boy, Inc. Michael A. Wagner, Chattanooga, Tennessee, for the appellee, Patricia Van Winkle. MEMORANDUM OPINION There is no dispute concerning the fact that the employee developed carpal tunnel syndrome in each arm while employed by La-Z-Boy, Inc., and that carpal tunnel surgery was performed on each arm - the left on January 19, 21, and the right on February 2, 21. We do not believe it is necessary to go into great detail concerning the medical evidence in this case. Rather, we focus on the reasoning of the trial court in the acceptance of the evidence presented by La-Z-Boy, Inc. over the evidence presented by the employee. The evidence of physicians was introduced by way of standard C-32 medical reports. These consisted of a report by a Dr. Walwyn, filed by the employee, and a report of a Dr. Boyd, filed by the employer. According to the reports introduced at trial, Dr. Walwyn examined the employee on October 22, 21. His report found the employee retained an eight percent impairment rating. The report noted he reviewed an EMG report but did not state the date upon which the test was performed. The report also included the results of an April 2, 21 physical capacity evaluation, and his examination of the defendant. Dr. Boyd spent one and one-half hours with the employee. She reviewed the operating physician's notes, physical therapy reports, and nerve conduction studies which were performed in November of 21 and September of 21. Dr. Boyd found the employee sustained a one percent impairment to her left arm and no impairment to the right arm. La-Z-Boy, Inc. called Brian Laney, an occupational therapist, to testify. Mr. Laney has a bachelors degree in occupational therapy from the Medical College of Georgia. He testified he conducted a test on the employee to determine her ability to perform tasks but that the test was less than successful because of the employee not fully cooperating during the test. Mr. Laney was asked about two functional capacity evaluations performed on the employee - one in April of 21 and one in September of 21. He said: The first thing that caught my eye whenever I finished my FCE and later found out that Gail had performed a former FCE, her surgical procedures, I believe, were a week apart, carpal tunnel release on the right and carpal tunnel release on the left. The purpose for a carpal tunnel release is to relieve pressure on the nerve that's traveling through that carpal and comes down. I'm not sure what complaints she had that necessitated her having the surgery, but generally people have tingling and numbness, which is hopefully relieved with the release. I believe it's in the notes that she did say the numbness and tingling had decreased after the surgery. When someone has release done, you don't expect immediate relief. Mr. Laney further testified: A nerve regenerates or heals at approximately _ in a distal extremity of about one inch per month, therefore, you're looking at about six months of healing time in -2-
Authoring Judge: John K. Byers, Sr.J.
Originating Judge:J. Curtis Smith, Judge |
Knox County | Workers Compensation Panel | 05/02/03 |