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| Carl Bland v. American Freightways Corporation
W2002-01122-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists (1) the trial court erred in finding that the plaintiff suffered an injury by accident to his body as a whole arising out of and in the course of his employment, (2) the trial court erred in not applying the doctrine of judicial estoppel to the facts of the case; and (3) the trial court erred in assigning vocational disability to the appellee because there was no expert proof. As discussed below, the panel has concluded the appeal is without merit. 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 JOHN K. BYERS, SR. J., joined. Ronald L. Harper and R. Scott Vincent, Memphis, Tennessee, for the appellant, American Freightways Corporation Lincoln A. R. Hodges, Germantown, Tennessee, for the appellee, Carl Bland MEMORANDUM OPINION The employee or claimant, Mr. Bland, initiated this civil action to recover workers' compensation benefits for an injury that occurred in the course of his employment with the employer, American Freightways. After a trial on the merits, the trial court awarded, among other things, permanent partial disability benefits based on 3 percent to the body as a whole. 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) (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:Kay Spaulding Robilio, Judge |
Shelby County | Workers Compensation Panel | 02/04/03 | |
| Mary Frances Wynn v. Heckethorn Manufacturing Co.,
W2002-00565-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 award of benefits based on 55 percent to the body as a whole is inadequate and seeks an increased award. As discussed below, the panel has concluded the evidence does not preponderate against the trial court's findings. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOHN K. BYERS, SR. J., joined. Jay E. DeGroot, Jackson, Tennessee, for the appellant, Mary Frances Wynn James H. Tucker, Nashville, Tennessee, for the appellees, Heckethorn Manufacturing Co., Inc. and Vigilant Insurance Company MEMORANDUM OPINION The employee or claimant, Ms. Wynn, initiated this civil action to recover workers' compensation benefits for an accidental injury to her left shoulder and neck occurring on March 5, 1998, while she was performing production welding. Following trial on November 28, 21, the trial court awarded, among other things, permanent partial disability benefits based on 55 percent to the body as a whole. The claimant has appealed. Appellate review is de novo upon the record of the trial court, accompanied bya 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:J. Steven Stafford, Chancellor |
Dyer County | Workers Compensation Panel | 02/04/03 | |
| Kenny Searcy v. Unipres U.S.A., Inc.,
M2002-00245-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists (1) the trial court erred in concluding the plaintiff's impairment was the result of his work related injury and (2) the award of permanent partial disability benefits based on 35 percent to the body as a whole is excessive. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP .J., in which FRANK F. DROWOTA, III, C. J., and JOHN K. BYERS, SR. J., joined. M. Clark Spoden and Irene L. Wolfe, Nashville, Tennessee, for the appellant Unipres U.S.A., Inc. Clinton L. Kelly, Hendersonville, Tennessee, for the appellee, Kenny Searcy MEMORANDUM OPINION The employee or claimant, Mr. Searcy, initiated this civil action against the employer, Unipres, to recover workers' compensation benefits for injuries suffered in an alleged work related accident occurring on July 2, 1999. By its late filed answer, the employer admitted liability but questioned the extent of its liability for permanent disability benefits. Following a trial on December 27, 21, the trial court awarded, among other things, permanent partial disability benefits based on 35 percent to the body as a whole. The employer has appealed. For injuries occurring on or after July 1, 1985, 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:C. L. Rogers, Judge |
Sumner County | Workers Compensation Panel | 01/31/03 | |
| Joyce Mullins v. Crotty Corp.,
M2002-00159-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 causation, permanency, extent of vocational disability and mileage reimbursement. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and JOHN K. BYERS, SP. J., joined. Kirk L. Clements, Nashville, Tennessee, for the appellants, Crotty Corp. and Employee Benefit Insurance Company Edwin Sadler and James D. Madewell, Cookeville, Tennessee, for the appellee, Joyce Mullins MEMORANDUM OPINION The employee or claimant, Ms. Mullins, initiated this civil action to recover workers' compensation for an alleged work related injury by accident. After a hearing on all issues raised by the pleadings, the trial court awarded permanent partial disability benefits based on 75 percent to the left arm and reimbursement of $2,313.3 for mileage incurred to receive authorized medical treatment. The employer, Crotty Corp., 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:John D. Wooten, Jr., Judge |
Jackson County | Workers Compensation Panel | 01/31/03 | |
| Jerry Lytle v. Fru-Con, Inc.,
W2002-01337-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists (1) the trial court erred in accrediting the testimony of the plaintiff, (2) the trial court erred in accepting the expert opinion of an examining physician over that of a treating physician, and (3) the award of permanent partial disability benefits based on 2 percent to the body as a whole is excessive. As discussed below, the panel has concluded the trial court committed no reversible error and the evidence fails to preponderate against the trial court's findings.. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOHN K. BYERS, SR. J., joined. W. Stephen Gardner and Robert Joseph Leibovich, Memphis, Tennessee, for the appellant, Fru-Con Pala Industrial, Joint Venture David Hardee, Jackson, Tennessee, for the appellee, Jerry Lytle MEMORANDUM OPINION This civil action was initiated by the employee or claimant, Mr. Lytle, to recover workers' compensation benefits for a work related injury by accident. At the conclusion of the trial on February 26, 21, the trial court awarded, among other things, permanent partial disability benefits based on 2 percent to the body as a whole. The employer-appellant 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) (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:Joe C. Morris, Chancellor |
Madison County | Workers Compensation Panel | 01/30/03 | |
| Avis Estes, Etc. v. Edgar Meek
M2001-02695-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 finding that the death of Walter B. Estes was the caused by a work related accidental injury. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 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 WILLIAM H. INMAN, SR. J., joined. Blakely D. Matthews and Jay N. Chamness, Cornelius & Collins, Nashville, Tennessee, for the appellant, Edgar Meek Jerred A. Creasy, Vandivort & Creasy, Charlotte, Tennessee, for the appellee, Avis Estes, surviving spouse of Walter B. Estes MEMORANDUM OPINION The claimant, Avis Estes, initiated this civil action to recover workers' compensation benefits for the allegedly work related death of the employee, her late husband, Walter Estes. By its answer, the employer, Edgar Meek, admitted the employee suffered a compensable injuryby accident on July 1, 1998, but denied that his death on September 29, 1998 was causally related to that accident. After a trial on the merits, the trial court found the accident to be the cause of Mr. Estes's death and awarded benefits to Mrs. Estes. The employer has appealed. For injuries occurring on or after July 1, 1985, 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) (21 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:Leonard Martin, Chancellor |
Dickson County | Workers Compensation Panel | 01/22/03 | |
| Michael Story v. The Holland Group of Tennessee d/b/a
M2001-03078-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 and its insurer question the trial court's finding relative to the extent of the employee's permanent disability, as being excessive. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and WILLIAM H. INMAN, SR. J., joined. Kenneth M. Switzer, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the appellants, The Holland Group of Tennessee d/b/a The Holland Group and CGU Insurance Group Charles L. Hicks, Camden, Tennessee, for the appellee, Michael Story MEMORANDUM OPINION The employee or claimant, Mr. Story, initiated this civil action to recover workers' compensation benefits for a work related injury. The employer, The Holland Group, denied liability. After a trial on October 26, 21, the trial court awarded, among other things, permanent partial disability benefits based on 5 percent to the body as a whole. The employer and its insurer have appealed. Appellate review is de novo upon the record of the trial court, accompanied bya presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (21 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:Allen W. Wallace, Judge |
Humphreys County | Workers Compensation Panel | 01/22/03 | |
| Debbie G. Scott v. Federal Express Corporation,
E2002-00941-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 filed a petition seeking compensation for an ankle injury which occurred July 16, 1997 and for a back injury which occurred on May 11, 2. The trial judge bifurcated the two claims and heard the back injury case. On April 15, 22 the trial court entered a judgment which dismissed the portion of the complaint seeking compensation for the back injury. The plaintiff says the evidence preponderates against this finding. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER, J. and JOSEPH M. TIPTON, SP. J., joined. Selma Cash Paty, Chattanooga, Tennessee, attorney for the appellant, Debbie G. Scott. Kent E. Krause, Nashville, Tennessee, attorney for the appellees, Federal Express Corporation and Sentry Insurance. MEMORANDUM OPINION At the time of the trial, the plaintiff was forty-nine years of age. She began work for the defendant in 1986. Her duties were as a delivery person. This required her to load a truck with packages to be delivered to customers, to drive the truck to the location of customers, to unload packages at designated places and to pick up packages from customers. In July 1998 the plaintiff had a two-level bone fusion at L4-L5 and L5-S1. The need for the surgery was non-work related. In December of 1998 the plaintiff fell at work and experienced some back pain through January 1999, for which she saw a doctor. In July 1999 the plaintiff twisted her ankle and suffered a severe sprain. She was placed in a fracture boot as a result of this. The plaintiff testified that this caused her back and leg to hurt. The plaintiff conceded, however, she had reported to her doctor that she was having increased lower back pain radiating into her hip and down her leg on April 27, 2. Medical Treatment The pertinent medical evidence was given by Dr. Richard G. Pearce, an orthopedic surgeon, who treated the plaintiff for her previous back injury and also treated her in relation to her limb complaints. Dr. Pearce testified the problem the plaintiff now suffers is as a result of degenerative changes at the L3-4 level which is above the vertebra that were fused in the 1998 surgery. He testified it is not unusual for this to occur above a fusion. Further, he testified the incident of May 11 [12] caused the plaintiff's symptoms from this disc level to get worse. Dr. Pearce's testimony as it relates to whether the plaintiff is entitled to recover is better understood by setting out his testimony verbatim. Q. Would you go back, Doctor, now and compare those complaints with the complaints that she had on April 27th of 2? A. They were similar complaints. Q. Virtually identical; aren't they, sir? A. Well, if you read the dictation, it would be very similar, yes, sir. Q. In fact, she told you on that day that she had some increasing lower back pain with some pain radiating into her hip and down into her right leg; correct? A. That's correct. Q. Doctor, is it _ is it your opinion that the incident that she described to you in January 21 relating to you for the first time an injury that she alleges occurred on May 11, 2, and your opinion that that is the cause of her current problems, is that based on her telling you that there was an increase in her symptoms, in other words, an increase in her pain? A. Yes, sir. Q. Do you have any other source, study, history from her that -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Howell N. Peoples, Chancellor |
Scott County | Workers Compensation Panel | 01/16/03 | |
| Michael Glenn Binkley v. E. I. Dupont De Nemours &
M2002-00278-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 claimant insists the evidence preponderates against the trial court's finding that the employee's death did not arise out of and in the course of his employment. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and WILLIAM H. INMAN, SR. J., joined. Charles L. Hicks, Camden, Tennessee, for the appellant, Martha Binkley, widow of Michael Glenn Binkley John R. Lewis, Nashville, Tennessee, for the appellee, E. I. Dupont De Nemours & Company MEMORANDUM OPINION The employee, Michael Glenn Binkley, initiated this civil action to recover workers' compensation benefits for a gradually occurring work related lung disease. The employer, Dupont, filed an answer. After the employee died, his widow, Martha Binkley, was substituted as plaintiff and the complaint amended to demand dependent and other death benefits. Despite the existence of sticky procedural questions, the only issue presented for trial was whether the employee's death was caused by an occupational disease resulting from exposure to fibers at work. After a trial on the merits, the trial court dismissed the claim for lack of evidence that the employee's lung disease arose out of and in the course of employment. The substituted plaintiff has appealed. We have reviewed only the issue presented to and adjudicated by the trial court. 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) (21 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:Robert E. Burch, Judge |
Humphreys County | Workers Compensation Panel | 01/14/03 | |
| Douglas Edward Smitley v. Suburban Manufacturing Co.
E2002-00255-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 Second Injury Fund appeals the trial court's decision that the Fund is liable for seventy percent of the awarded permanent total disability to the body as a whole. We affirm the decision of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Rhea County Chancery Court is Affirmed BYERS, SR.J., in which BARKER, J., and PEOPLES, SP.J., joined. E. Blaine Sprouse, of Nashville, Tennessee, for Appellant, Second Injury Fund. Michael Augustine Wagner, of Chattanooga, Tennessee, for Appellee, Douglas Edward Smitley. Robert J. Uhorchuk, of Chattanooga, Tennessee, for Appellee, Suburban Manufacturing Company. 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-six years of age at the time of trial. He dropped out of high school in the eighth or ninth grade and does not have a graduate equivalency degree. He has worked most of his life in manual labor jobs. In 1997, before the plaintiff began working for the defendant company, he underwent lumbar diskectomy surgery to relieve pressure on a nerve root. He testified that he began having problems with his neck in 1997, caused by a "pinched nerve." Dr. Paul Broadstone, the doctor who performed the surgery, followed up with the plaintiff and reported that he was doing well. After his back surgery, the plaintiff began working for the defendant company, Suburban Manufacturing. He worked as a press operator and metal finisher. He became a permanent employee in October of 1998 after a physical examination which determined that no special accommodations needed to be made for his employment. On January 2, 1999, the plaintiff tripped over an air hose at work, falling to the floor and landing on his hip and shoulder. Suburban acknowledged this accidental injury to the plaintiff's lower back as compensable under workers' compensation law, and provided medical care and treatment for the injury. After the plaintiff's fall, he saw Dr. Broadstone and was later admitted to Erlanger Medical Center. He was ultimately treated by Dr. Scott Hodges for his low back injury of January 2, 1999. Dr. Hodges performed a diskectomy and fusion at the L5-S1 level on June 23, 1999. Dr. Hodges testified that he would assign the plaintiff a permanent physical impairment rating of five percent to the body as a whole and that his date of maximum medical improvement was January 18, 2. Dr. Hodges also testified that he placed permanent work restrictions on the plaintiff of lifting no more than thirty pounds occasionally, twenty pounds frequently, and changing positions every hour. The plaintiff returned to work on September 2, 1999, but reported continued cervical problems that were later found to have been caused by non-union in the 1997 fusion surgery. The plaintiff testified that on October 11 or 12, 1999, while performing a task that required him to bend his neck and look down in a squatted position repetitively, he felt a sudden "pop" in his neck and then the slow onset of a blinding headache. The plaintiff saw both Dr. Hodges and Dr. Broadstone again and he determined that he would not be able to return to work because of the intense neck pain he was having. Because of the continued cervical problems and non-union of the original fusion surgery the plaintiff underwent a second fusion surgery in March of 2. Dr. Broadstone assessed an additional two percent permanent anatomical impairment as a result of the second surgery. Medical Evidence -2-
Authoring Judge: Byers, Sr.J.
Originating Judge:Jeffrey Stewart, Chancellor |
Knox County | Workers Compensation Panel | 01/13/03 | |
| Sylvain Kinnon v. Wal-Mart Store, Inc.,
W2001-02428-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 the evidence preponderates against the trial court's findings as to causation, permanency and extent of permanent disability. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR, SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, SP. J., joined. Jay L. Johnson, Jackson, Tennessee, for the appellant, Wal-Mart Stores, Inc. Christopher L. Taylor, Memphis, Tennessee, for the appellee, Sylvain Kinnon MEMORANDUM OPINION The employee or claimant, Kinnon, initiated this civil action to recover workers' compensation benefits, including permanent disability benefits, for a work related injury. The employer, Wal-Mart, denied liability. After a trial on the merits, the trial court awarded, among other things, permanent partial disability benefits based on 16 percent to the body as a whole. 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) (21 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:George R. Ellis, Chancellor |
Haywood County | Workers Compensation Panel | 12/20/02 | |
| Andy R. Gann v. Flagstar Enterprises, Inc.
E2002-00272-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 appellant claims that the trial court erred in granting summary judgment that his claim for worker's compensation benefits was not timely filed as provided in T.C.A. _ 5-6-23. We affirm.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Rex Henry Ogle, Judge |
Knox County | Workers Compensation Panel | 12/20/02 | |
| Billie Jo Lenear v. Rehab Care Group, Inc.
E2001-02935-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 appellant claims that the trial court erred in finding that she was not an employee and, thus, not entitled to worker's compensation benefits. We affirm.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Billy Joe White, Chancellor |
Knox County | Workers Compensation Panel | 12/20/02 | |
| David C. Moss v. Feldkircher Wire Fabricating Co., Inc. and The
M2001-01634-WC-R3-CV
This Worker's Compensation Appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Annotated _ 50-6-225(e) for hearing and reporting findings of fact and conclusion of law. In this case, the plaintiff contends that the trial court erred in (1) concluding that he did not sustain work related carpal tunnel syndrome and (2) in assigning him a vocational impairment of ten percent (10%) to the body as a whole. For reasons stated below we affirm the judgment of the trial court.
Authoring Judge: Gray, Sp. J.
Originating Judge:Iirvin Kilcrease, Jr.,Chancellor |
Davidson County | Workers Compensation Panel | 12/16/02 | |
| Sherry Lynn Hudgens v. Royal & Sunalliance Insurance
M2001-02984-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employer appeals the judgment of the trial court awarding the employee 45% permanent partial disability to her left arm. The employee, who was diagnosed with DeQuervain's Syndrome caused by repetitive use of her hands while working for the employer, had sustained a 2% anatomical impairment to the upper extremity and had permanent restrictions on the use of her left hand. The employer contends the trial court erred by 1) granting an excessive award; and 2) finding that the injury was to the arm rather than the hand. We hold that the evidence does not preponderate against the trial court's findings. Accordingly, the judgment of the trial court is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Affirmed. JAMES L. WEATHERFORD, SR. J., in which JANICE M. HOLDER, J., and JOE C. LOSER, JR., SP.J., joined. John W. Barringer, Jr., Nashville, Tennessee, for the appellants, Royal & Sunalliance Insurance and TennPlasco, Inc. Frank D. Farrar and William Joseph Butler, Lafayette, Tennessee, for the appellee, Sherry Lynn Hudgens. MEMORANDUM OPINION Mrs. Sherry Lynn Hudgens, the employee/appellee, was 42 years old at the time of trial, has a twelfth grade education, and has no special skills or training. All of the jobs she has held in the past involved some type of manual labor. She has worked as a dishwasher, hotel maid, custodian and school bus driver. She has also worked in factories and fast food restaurants, and on farms baling hay. From 1999 until 21, Mrs. Hudgens worked in the finishing department for TennPlasco, Inc., the employer/appellant, where she unpacked boxes of parts and loaded these parts onto an assembly line. On January 5, 21, Mrs. Hudgens felt burning and pain in her forearm and wrist area while working at TennPlasco. She was referred to Dr. Paul Abbey who gave her a wrist immobilizer to reduce the pain. Prior to her employment with TennPlasco, Mrs. Hudgens had never experienced or complained of pain or complications with her left wrist, hand, or arm.1 Still experiencing pain, Mrs. Hudgens sought additional treatment from Dr. Robert P. Landsberg, a board certified orthopedic surgeon. On July 18, 21, Dr. Landsberg conducted an evaluation of her left arm and also reviewed her prior medical records. Dr. Landsberg diagnosed Mrs. Hudgens with "DeQuervain's syndrome which is constrictive tenosynovitis in the first dorsal extensor compartment on the left." He found the anatomical problem to be above the wrist, but that it affected the use of her thumb and wrist. Dr. Landsberg assigned a 2% permanent partial impairment rating to the left upper extremity based upon the latest edition of the AMA Guides. On February 21, 21, Mrs. Hudgens was released to return to work with permanent restrictions of no repetitive gripping or squeezing with the left hand. She was laid off on February 24, 21, and has not been called back to work at TennPlasco. Mrs. Hudgens testified that she cannot return to any of her previous jobs because of her injury and permanent restrictions. She applied for eight or nine jobs within three weeks prior to trial, but had not been contacted by any employer. According to Mrs. Hudgens, "Whenever I use [my left arm] a lot, I have swelling that comes up in the arm area down into the wrist and thumb." She can only perform moderate physical activities with her left arm for 15 to 2 minutes before the pain and swelling begins. Mrs. Hudgens testified that before her injury she could feed her animals, mow the lawn, cook, clean, and perform other household chores. She now uses paper plates and cups because she is unable to lift her ceramic plates and glassware. The trial court found that Mrs. Hudgens had sustained a 45% permanent partial disability to 1 Mrs. Hud gens suffered a previous injury to her right arm while working for TennPlasco for which she received a 1% upper extremity impairment rating for loss of strength to her right side. This injury is not an issue in the present case. -2-
Authoring Judge: James L. Weatherford, Sr. J.
Originating Judge:J.O. Bond, Judge |
Macon County | Workers Compensation Panel | 12/16/02 | |
| Donna Hardey v. Pml, Inc., Ebi Companies and James
W2001-02569-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. _5-6-285 (e)(3) for hearing and reporting to the Supreme Court of findings and fact and conclusions of law. In this appeal the plaintiff, Donna Hardey (Hardey) contends the evidence preponderates in favor of an award in excess of the twenty-five percent (25%) permanent partial disability to the body as a whole awarded by the trial court. For the reasons stated in this opinion, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed W. MICHAEL MALOAN, SP. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, JR., SP. J., joined. Ricky L. Boren, Jackson, Tennessee, for the appellant, Donna Hardey. Jeffrey G. Foster, Jackson, Tennessee, for the appellee, PML, Inc. and EBI Companies. E. Blaine Sprouse, Nashville, Tennessee, for the appellee, Tennessee Department of Labor, Workers' Compensation Division MEMORANDUM OPINION The plaintiff, Hardey, was forty (4) years old at trial. She completed the eleventh (11th) grade and obtained a general equivalency diploma. Her work history is mostly manual labor in factories. She began working for PML in November 1994 as a welding machine operator until she was promoted to a group leader. As group leader she was responsible for assigning operators to presses and overseeing their operation. In July 1997 Hardey hurt her neck at PML. Dr. Glenn Barnett diagnosed a herniated C6 disc on the left and on January 26,1998 he performed an anterior cervical discectomy and fusion of the C6-7 discs. She filed a workers' compensation claim which was ultimately settled on January 8, 1999, for twenty percent (2%) permanent partial disability to the body as a whole. Hardey returned to work at PML as a group leader without restrictions. Hardey began to have problems with her right shoulder and arm and returned to see Dr. Barnett on June 25, 1999. Dr. Barnett determined that she had a C5 herniated disc. On October 14, 1999, Dr. Barnett performed as a second operation a discectomy and fusion at the C5-C6 level. As a result of this second surgery, Dr. Barnett assigned an additional five percent (5%) permanent impairment and advised Hardey not to lift in excess of thirty (3) pounds on a regular basis. In June 1999, Hardey complained to Dr. Barnett of right arm and finger numbness. A nerve conduction study showed mild to moderate carpal tunnel syndrome of the right arm. Dr. Barnett did not recommend surgery for this condition. When Dr. Barnett saw Hardey on February 7, 22, he noted she was doing "miserably, was quite uncomfortable, and taking up to fourteen Tylenol per day." Dr. Barnett testified it was not likely she would be able to return to work "unless she gets a dramatic improvement with her nonsurgical treatment of her pain." Due to her chronic pain, Dr. Barnett referred Hardey to Dr. Frank Jordan, a pain specialist. Dr. Jordan saw her on August 22, 21, diagnosed radicular pain, prescribed medication and performed two (2) epidural blocks. Hardey testified she did not get any relief from Dr. Jordan's treatment. Dr. Joseph Boals examined Hardey for an independent medical evaluation on October 3, 2. On examination, Dr. Boals found extensive loss of motion in her neck, hypesthesia in the last three (3) fingers of her right hand, and a positive Phalen's test on the right arm. He assigned a ten percent (1%) permanent impairment for each cervical surgery and an additional ten percent (1%) for chronic pain syndrome. Dr. Boals assigned an additional ten percent (1%) permanent impairment for the carpal tunnel syndrome. As a result of both injuries and surgeries to her neck and her carpal tunnel syndrome, Dr. Boals recommended she not go back to manual labor employment. Her restrictions include no overhead work, no work away from her body, and a weight limit of less than twenty (2) pounds with no repetitive work using her hands or heavy gripping using her hands, and she is suited to only sedentary or light work status. -2-
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Originating Judge:Julian P. Guinn, Judge |
Benton County | Workers Compensation Panel | 12/11/02 | |
| Brenda Barton v. Anvil International, Inc.,
W2001-02523-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists (1) the trial court erred in considering an examining physician's opinion as not being based on statutory guidelines and (2) the award of permanent partial disability benefits based on 5 percent to one arm and 45 percent to the other arm is excessive.1 As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and MICHAEL MALOAN, SP. J., joined. Jeffery G. Foster, Jackson, Tennessee, for the appellant, Anvil International, Inc. Scott G. Kirk, Jackson, Tennessee, for the appellee, Brenda Barton MEMORANDUM OPINION The employee or claimant, Ms. Barton, initiated this civil action to recover workers' compensation disability benefits for a work-related injury. The employer, Anvil International, denied liability for permanent disability. After a trial on the merits, the trial court awarded, among other things, benefits based on permanent partial disability to both arms. The employer has appealed. 1 An injury to both arms is a scheduled injury and the better practice is to average the awards to each arm for a single award base d on a per centage of b oth arm s. Scales v. City of Oak Ridge, 53 S.W .3d 649 at n. 1 (Tenn. 2 1). Th e issue d eem ed w aived since it wa s not raised in this a ppe al. For injuries occurring on or after July 1, 1985, 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) (21 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:Joe C. Morris, Chancellor |
Chester County | Workers Compensation Panel | 12/11/02 | |
| Sandra Kay Powers, et al. v. American Interstate Insurance Company, et al
W2001-02751-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 the competent evidence preponderates against the trial court's finding that the deaths of two employees occurred in the course of their employment and in favor of a finding that the employees had materially deviated from their employment at the time of their deaths in a vehicular accident. As discussed below, the panel has concluded the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Stephen Craig Kennedy, Selmer, Tennessee, for the appellants, Staton's Home Furnishings and American Interstate Insurance Company Art D. Wells, Jackson, Tennessee, for the appellee, Sandra Kay Powers, as guardian and next friend of Jessica Witherspoon, Billy Joe Witherspoon and Cody Witherspoon, minor children of David Witherspoon, deceased Gayden Drew, Jackson, Tennessee, for the appellee, Robbie McEwen, administrator of the Estate of Timothy Gallimore, deceased MEMORANDUM OPINION By these consolidated civil actions, the claimants sued to recover workers' compensation benefits, as provided by the Workers' Compensation Act, Tenn. Code Ann. _ 5-6- 11 et seq, for the accidental deaths of David Witherspoon and Charles Timothy Gallimore on July 29, 1999. The employer, Staton's Home Furnishings, and its insurer, American Interstate Insurance Company, denied liability. After a trial on the merits, the trial court awarded death benefits to the estate of Gallimore and dependents' benefits to the children of Witherspoon. The employer and its insurer have appealed. For injuries occurring on or after July 1, 1985, 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) (21 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:George R. Ellis, Chancellor |
Gibson County | Workers Compensation Panel | 12/11/02 | |
| Dexter Lebron Joshen v. Mckee Foods Corporation
E2002-00194-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 trail court found the plaintiff had sustained a compensable injury to his shoulder and fixed an award of 3 percent vocational disability to the body as a whole. The defendant says the trial judge fixed this award on the basis of a 6 percent medical impairment to the body rather than on the basis of 4 percent medical impairment, which the defendant asserts is the correct medical impairment rating. The plaintiff responds to the defendant's claim by saying he is satisfied by the ruling of the trial court on the award to the plaintiff. However, the plaintiff says if we reverse the trial court's judgment he wishes us to address the four assignments of error raised by him. These assignments concern the treatment of the plaintiff by a Dr. Alan Odom, who did surgery on the plaintiff's shoulder. The trial court found the treatment by Dr. Odom was not shown to be related to the compensable injury the plaintiff suffered while working for the defendant. We affirm the judgment of the trial court.1 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 WILLIAM M. BARKER, J. and HOWELL N. PEOPLES, SP. J., joined. Charles D. Lawson and J. Barlett Quinn, Chattanooga, Tennessee, attorneys for appellant, McKee Foods Corporation. Gary W. Starnes, Chattanooga, Tennessee, attorney for appellee, Dexter Lebron Joshen. 1 We will not discuss the issues raised by the plaintiff other than to say the record supports the action of the trial judg e in ruling on D r. Od om's tre atment of the p laintiff. MEMORANDUM OPINION At the time of this trial, the plaintiff was thirty-eight years of age. He is a high-school graduate and has no post high school education, vocational or academic. He is married and the father of a child who was seventeen at the time of trial. For the most part the plaintiff's work history shows him to have been employed in low paying jobs such as a busboy and dishwasher, work as a brick mason during high school and as a cook in a restaurant. The plaintiff became employed by the defendant in 1985, and continued in this job until May 17, 1999. The plaintiff's job required him to remove cartons from a conveyor and stack them into a trailer (truck) for delivery. This required lifting, turning and reaching above the shoulders. There is no dispute that the plaintiff injured his right arm and shoulder on May 17, 1999 in the course of doing the stacking required by his job. Medical Evidence 2 Dr. Dennis Lee Stohler, an orthopaedic surgeon, first saw the plaintiff on June 11, 1999. He diagnosed the plaintiff's condition as a result of the injury as left rotator cuff tendinitis with subacromial bursitis with mild left biceps tendinitis. Dr. Stohler treated the plaintiff and determined he had reached permanent medical impairment of 1 percent to the upper extremity, which in medical jargon encompasses the shoulder, which we consider a part of the whole body. He converted this to 6 percent medical impairment to the body as a whole. Dr. Stohler testified that a clinical examination showed that the plaintiff's range of motion had improved by December 21, 1999. He testified that if there had been improvement the original assessment of 6 percent "can be certainly [inaccurate] in that original impairment." Upon being further questioned about the range of motion, Dr. Stohler testified it would reflect a 4 percent whole body impairment. Dr. Stohler based this evaluation on the 4th Edition of the AMA Guidelines. Upon further questioning, Dr. Stohler testified he did not give any consideration for pain in reaching his evaluation. The evidence shows the plaintiff continued to suffer pain and the 4th Edition considers pain as pertinent in fixing the extent of medical impairment from an injury. Discussion There is little discussion needed in this case. The only question is whether the trial court should have found the medical impairment was 6 percent or 4 percent to the body as a whole. 2 We will not discuss the testimony of Dr. Odom because Dr. Odom testified the injury he treated could not have been cause d by the M ay 17 , 199 9 injur y. -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:W. Frank Brown, III, Chancellor |
Knox County | Workers Compensation Panel | 12/09/02 | |
| Charles Juricak v. Exclusively Temporary, Inc.,
M2001-03101-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 (the fund) questions the competency and sufficiency of a Stipulation of Settlement from another state to permit recovery from the fund. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Criminal Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and WILLIAM H. INMAN, SR. J., joined. Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellant, James Farmer, Director, Division of Workers' Compensation, Tennessee Department of Labor and Workforce Development, Second Injury Fund B. Keith Williams, Lebanon, Tennessee, for the appellee, Charles Juricak D. Brett Burrow, Brewer, Krause & Brooks, Nashville, Tennessee, for the appellees, Exclusively Temporary, Inc. and Zurich American Insurance Company MEMORANDUM OPINION The employee or claimant, Mr. Juricak, initiated this civil action against the employer, Exclusively Temporary, Inc., its insurer, Zurich Insurance Company, and the Second Injury Fund to recover workers' compensation benefits for an allegedly work related shoulder injury that occurred on August 2, 2. The complaint further alleged that the injury and resulting disability were superimposed upon a previous injury for which the claimant had received an award under Florida's Workers' Compensation Law. The employer and its insurer, by a cross-claim against the Second Injury Fund, averred that the claimant was totally and permanently disabled as a result of the second injury and that the employer's liability should not exceed 1 percent disability. The Second Injury Fund denied any liability. After a trial, the trial court awarded permanent partial disability benefits, in favor of the claimant and against the Second Injury Fund, based on 95 percent permanent partial disability to the body as a whole. The fund has appealed. For injuries occurring on or after July 1, 1985, 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) (21 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:J. O. Bond, Judge |
Macon County | Workers Compensation Panel | 12/09/02 | |
| Hershel Willard Hill v. Wilson Sporting Goods Co.,
M2001-02820-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) (22 Supp.) for hearing and reporting of findings of fact and conclusions of law. The trial court ruled as a matter of law that the employee's request for reconsideration under Tenn. Code Ann. _ 5-6-241(a)(2) (21 Supp.) was barred because (1) his initial award was below the two and one-half times multiplier cap and (2) his employment was not terminated. The employee contends that the trial court erred on both grounds. As discussed below, the panel has concluded that _ 5-6-241(a)(2) requires neither a capping at two and one-half times the initial award nor a termination. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Vacated and Remanded JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined Russell D. Hedges, Moore & Hedges, Tullahoma, Tennessee, for the appellant, Hershel Willard Hill Edward A. Hadley, Gideon & Wiseman, Nashville, Tennessee, for the appellees, Wilson Sporting Goods Company and Kemper Insurance Company MEMORANDUM OPINION Pursuant to Tenn. Code Ann. _ 5-6-241(a)(2), the employee or claimant, Hershel Hill, initiated this civil action for reconsideration of a previous award of permanent partial disability benefits for injuries suffered in a work-related accident on April 23, 1997. After a hearing, the trial court disallowed reconsideration because (1) the previous award was less than two and one-half times the highest impairment rating and (2) the claimant had not been discharged by the employer. The claimant has appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (21 Supp.). 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). Issues of statutory construction are solely questions of law. Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761, 765 (Tenn. 2). Workers' compensation laws must be construed so as to ensure that injured employees are justly and appropriately reimbursed for debilitating injuries suffered in the course of service to the employer. Story v. Legion Ins. Co., 3 S.W.3d 45, 454 (Tenn. 1999). Mr. Hill worked for the employer, Wilson Sporting Goods, for more than thirty years until his retirement in 1999. On April 23, 1997, he had a collision with an electric cart at work. The resulting back injury was initially treated by Dr. Richard A. Bagby and Dr. Robert M. Dimick. Both physicians assigned a zero permanent impairment rating for the claimant's injury. A third physician, Dr. Richard Fishbein, evaluated the claimant and assigned a permanent impairment rating of five percent to the whole person. On May 5, 1997, the claimant returned to his job at Wilson at a wage equal to or greater than his wage before the injury. Accordingly, by Tenn. Code Ann. _ 5-6-241(a), his potential permanent disability award was limited to two and one-half times his medical impairment rating. On October 23, 1998, the trial court awarded benefits based on 7.5 percent permanent partial disability to the body as a whole, or one and one-half times the impairment rating assigned by Dr. Fishbein. In the year that followed, the claimant continued to work at Wilson while suffering from back pain. His last day at work was October 26, 1999, after which he took sick leave. On October 27, 1999, he visited Dr. Paul McCombs, who informed Mr. Hill that surgery was not an option for his back condition. With the assistance of Dr. McCombs, the claimant obtained social security disability benefits. He also retired from Wilson under its disability plan. At the trial of this cause, the claimant testified that the pain in his back worsened in the time following the first hearing, but the nature of the pain did not change. The trial court declined the invitation to reconsider Mr. Hill's claim based on two independent and unrelated grounds. First, the court held that reconsideration was appropriate only where the initial award was capped by the two and one-half multiplier limit. Second, the court held that an employee must be terminated in order to be eligible for reconsideration of the initial award. Thus, the trial court concluded, because the initial award was less than two and one-half times Dr. Fishbein's rating and the claimant had not been terminated, Mr. Hill's application for reconsideration was rejected as a matter of law. According to Tennessee Code Annotated section 5-6-241(a)(1), [f]or injuries arising on or after August 1, 1992, in cases where an injured employee is eligible to receive any permanent partial disability benefits, pursuant to _ 5-6-27(3)(A)(i) and (F), and the -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Jeffrey F. Stewart, Chancellor |
Wilson County | Workers Compensation Panel | 12/09/02 | |
| Harold J. Garth v. Siskin Steel & Supply Company,
E2002-00090-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff suffered 75 percent disability to his right hand as a result of an on-the-job injury, which occurred on March 1, 2. The defendant says the trial judge erred in not finding the plaintiff's recovery for the injury should be limited to the thumb or the first phalange of the thumb. The plaintiff says the trial court properly found the plaintiff suffered an impairment to his right hand but says the trial court should have granted a higher award. 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 WILLIAM M. BARKER, J. and JOSEPH M. TIPTON, SP. J., joined. Kent T. Jones, Chattanooga, Tennessee, attorney for appellant, Randstand Staffing Services. David D. Moore, Chattanooga, Tennessee, attorney for appellant, Siskin Steel & Supply Company. Richard H. Winningham, Chattanooga, Tennessee, attorney for appellee, Harold J. Garth. MEMORANDUM OPINION Plaintiff, Harold Garth, is a high school graduate with vocational training as a bricklayer. After serving in the military, he attended Draughon's Junior college where he received a degree or diploma in trucking and has past experience in both trucking and construction. The undisputed evidence shows the plaintiff sustained an injury to his right thumb or hand on March 1, 2 while working as a materials handler with Siskin Steel & Supply Company through Randstad Staffing Services.1 Medical Evidence Dr. Daniel Labrador, Jr., a plastic surgeon, saw the plaintiff at the emergency room on March 1, 2, shortly after he was injured. He testified that the tip of the plaintiff's right thumb had been torn off. The portion of the thumb was reattached to the plaintiff's thumb and treatment began. Dr. Labrador saw the plaintiff on several occasions and last saw him on April 3, 2. Dr. Labrador denied that the plaintiff's hand injury had developed gangrene. Dr. Labrador concluded that the plaintiff's injury had healed on April 2, 2, and testified the plaintiff sustained a 1 percent permanent medical impairment to his right thumb. Dr. Labrador testified he was somewhat limited in his finding because Mr. Garth did not return for a final appointment after April 3, 2.2 Dr. Robert Mastey, a hand and upper extremities specialist, saw the plaintiff on July 27, 21 at the request of the defendant for purposes of evaluation. He found the plaintiff had no bone loss and had normal nerve function in the hand, which was based upon a review of an EMG and CV done previously. He also found the plaintiff had loss of motion in the thumb and loss of digital height. Dr Mastey determined the plaintiff had sustained a 14 percent medical impairment to the right thumb. Dr. Mastey did not consider a loss of grip finding because he felt it was unreliable.3 Dr. Cauley W. Hayes, a hand surgeon, saw the plaintiff on April 6, 2. He testified that the tip of the plaintiff's thumb had been amputated (soft tissue), that the soft tissue had been reattached and that the wound had become necrotic and gangrenous. Dr. Hayes found the plaintiff's right thumb was numb almost past the metacarpal phalange joint and that the plaintiff was experiencing swelling of the hand. Dr. Hayes opined the plaintiff would have a permanent partial medical impairment of 33 percent to his hand, with loss of motion and "fine manipulation." Lay Testimony The plaintiff and other witnesses testified at trial that his right hand continues to swell. On two occasions the plaintiff exhibited his hand to the trial judge for observation, once at the request of counsel and once at the request of the trial judge. The only response by the judge on these 1 Randstad Staffing and Siskin Steel stipulated at trial that Randstad was the actual statutory employer of the plaintiff at the time of the alleged injury and, by agreement, Randstad Staffing Services took on sole responsibility for the jud gme nt. 2 The plaintiff testified he did not return to Dr. Labrador because his finger was swollen and infected and he did not think he was being properly treated. 3 Dr. Mastey appeared antagonistic to questions from plaintiff's counsel and also interjected his legal opinion into his testim ony b y citing a co mpe nsation decisio n by the Sup reme Court. -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:W. Frank Brown, III, Chancellor |
Knox County | Workers Compensation Panel | 12/09/02 | |
| T. v. Swaw v. Trane Unitary Products Commercial, A/K/A
M2001-02793-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 and its insurer question the award of permanent partial disability benefits based on 75 percent to the body as a whole and insist the preponderance of the evidence supports only a lesser award of permanent disability benefits to the left knee. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and WILLIAM H. INMAN, SR. J., joined. Wm. G. McCaskill, Jr., Taylor, Pigue, Marchetti & McCaskill, Nashville, Tennessee, for the appellants, Trane Unitary Products Commercial a/k/a Trane Company, and Travelers Indemnity Company of Illinois Julia Smith, Clarksville, Tennessee, for the appellee, T. V. Swaw MEMORANDUM OPINION The employee or claimant, Mr. Swaw, initiated this civil action to recover workers' compensation benefits for an alleged work-related injury to both legs occurring on September 29, 1997. The employer, Trane, and its insurer, Travelers, admitted liability for the injury to the claimant's left knee, but denied any other liability. Following a trial on February 5, 21, the trial court awarded, among other things, future medical benefits and permanent partial disability benefits based on 75 percent to the body as a whole. The employer and its insurer have appealed. For injuries occurring on or after July 1, 1985, 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) (21 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:John H. Gassaway, Judge |
Montgomery County | Workers Compensation Panel | 12/09/02 | |
| Jeff Gaston v. Rskco and Love's Country Stores, Inc.
W2001-02787-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. _5-6-285 (e)(3) for hearing and reporting to the Supreme Court of findings and fact and conclusions of law. The defendant employer contends the plaintiff employee failed to give proper notice of a back injury and the evidence preponderates against the trial court's award of twelve percent (12%) to the body as a whole. For the reasons stated in this opinion, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1998 and Supp. 21) Appeal as of Right; Judgment of the Chancery Court Affirmed W. MICHAEL MALOAN, SP. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, JR., SP. J., joined. B. Duane Willis, Jackson, Tennessee, for appellant, RSKCo and Love's Country Stores, Inc. Gayden Drew IV, Jackson, Tennessee, for appellee, Jeff Gaston MEMORANDUM OPINION The plaintiff, Jeff Gaston (Gaston), was thirty-seven (37) years old at the time of trial. He graduated from high school, obtained a bachelor's degree in organizational leadership and is pursuing a master's degree in business administration. Prior to working for Love's County Stores as a general manager of a Hardee's Restaurant in 1999, Gaston was a manager or food and beverage director for numerous restaurants. On May 27, 2, Gaston was carrying an urn of coffee when he slipped and fell to both knees. He sustained first and second degree burns to his face and received treatment at a local emergency room. Some two to four weeks later, Gaston developed numbness in his left leg. He notified his employer and in July 2 was referred to Dr. David Garey at the Jackson Clinic. On a December 8, 2 visit to Dr. Garey, he reported numbness in his right leg, but denied any back or hip pain. Dr. Garey referred Gaston to Dr. Joseph Rowland, a neurosurgeon at Semmes-Murphey Clinic in Jackson. Gaston saw Dr. Rowland on January 8, 21, with complaints of low back pain and numbness in his right hip and knee. He gave a history of a May 2 fall at work with back pain ever since. An MRI showed mild disc bulging at L4 and L5 but nothing requiring surgery. On his last visit of March 7, 21, Gaston continued to complain of back and right leg pain. Dr. Rowland referred Gaston to Dr. Edward Hockaday for a lumbar epidural steroid injection which was performed on February23, 21. Dr. Hockaday's impressions were "low back pain, right lower extremity pain and right lower extremity numbness secondary to lumbar neuritis with bulging disc at L4-L5 and bulging disc at L5-S1." Dr. Joseph Boals examined Gaston on June 14, 21, for an independent medical evaluation. Dr. Boals found a full range of motion in Gaston's back without spasm and a normal neurological examination. Dr. Boals diagnosed an acute lumbar strain and possible rupture at L5-S1 caused by Gaston's fall at work. Dr. Boals assigned a five percent (5%) permanent physical impairment to the body as a whole based on the AMA Guidelines and advised against prolonged walking, standing, stooping, squatting, climbing and repetitive flexion or extensive rotation of his back. Gaston testified he began having back pain in October 2 and he currently has almost constant pain in his back and numbness in his right leg. He lost his job with Love's County Stores due to reasons unrelated to his injury and he currently works for DET Distributing setting up advertising and delivering approximately two hundred (2) cases of beer a day. He is required to lift, bend, stoop, twist, squat and climb. After the October 2, 21 trial, the Chancellor awarded twelve percent (12%) permanent partial disability to the body as a whole. The employer has appealed and raised two issues: the lack of notice of a back injury and the amount of the award. ANALYSIS The scope of review of issues of fact is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings, unless the preponderance of evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143 (Tenn. 1989). When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded the trial court's factual findings. Humphrey v David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). However, -2-
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Originating Judge:Joe C. Morris, Chancellor |
Madison County | Workers Compensation Panel | 12/05/02 | |
| Michael Lloyd Todd v. Bekaert Steel Wire Corporation,
W2001-03004-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 the award of benefits based on 36 percent to the left arm is excessive. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR,. SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP. J., joined. Paul C. Peel, Memphis, Tennessee, for the appellants, Bekaert Steel Wire Corporation and Liberty Mutual Insurance Company Jeffrey A. Garrety and Joseph R. Taggart, Jackson, Tennessee, for the appellee, Michael Lloyd Todd MEMORANDUM OPINION The employee or claimant, Todd, initiated this civil action to recover workers' compensation benefits for an alleged work related injury to his left arm and elbow. When mediation failed to resolve the disagreement between the parties as to the extent of the claimant's permanent disability, a trial was held on October 22, 21. After weighing and evaluating disputed medical evidence, the trial court awarded permanent partial disability benefits based on 36 percent to the arm. The employer, Bekaert Steel Wire Corporation, 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) (21 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:J. Steven Stafford, Chancellor |
Dyer County | Workers Compensation Panel | 12/05/02 |