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| 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 | |
| Jerry Wayne Matlock v. Ltv Steel, Inc. and Insurance
W2001-02512-SC-WCM-CV
This worker's compensation appeal has been referred to the Special Worker's Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 50-6-225(e)(3) for a 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 of permanent partial disability for injury to the back, neck and hand. The employer also questions the award of benefits to claimant's right hand for carpel tunnel syndrome, due to the lack of notice of the injury to employer. As discussed below, the panel has concluded the evidence supports the findings of the trial court.
Authoring Judge: Hamilton V. Gayden, Jr., Sp. J.
Originating Judge:Hon. C. Creed Mcginley, Judge |
Wayne County | Workers Compensation Panel | 12/04/02 | |
| Stan Ley M Oo Re v. Pay Less Ca Shway S, In C., E
W2002-00705-SC-WCM-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employee appeals the trial court dismissal of his claims by granting summary judgment in favor of employer, holding the action was barred by the statute of limitations. We reverse and remand. Tenn. Code Ann. _ 5-6-225(e) Appeal as of Right; Judgment of the Trial Court Reversed and Remanded. JOE H. WALKER III , SP. J., in which JANICE M. HOLDER, J, and JOE C. LOSER, SP. J. joined. Steve Taylor, Memphis, TN, for the Appellant, Stanley Moore. Lori D. Parrish, Memphis, TN, for the Appellees, Payless Cashways, Inc., et al. MEMORANDUM OPINION Stanley Moore worked for Payless Cashways. During the course of his employment, on June 23, 1999, lumber accidentally fell on Mr. Moore. He was transported to the emergency room and treated by Dr. Bobo. He was paid temporary total benefits until released to return to work in September, 1999. He was followed by Dr. Bobo and Dr. Chen for reflex sympathetic dystrophy until released February 1, 2. The last payment for medical treatment was made March 29, 2, for treatment received February 1, 2. Dr. Bobo was of the opinion that he had no permanent partial impairment. Mr. Moore had obtained counsel at some point, who notified Mr. Moore in April 2, that medical records indicated Mr. Moore had no permanent partial impairment, and the attorney was closing his file, that Mr. Moore could consult with another attorney. Mr. Moore continued to have problems with his left upper and lower extremities. He obtained new counsel and a complaint was filed April 3, 21. Dr. Rizk evaluated the claimant and opined by letter dated June 11, 21, that Mr. Moore has reflex sympathetic dystrophy which Dr. Rizk considers to be a permanent condition, and caused by his work-related accident. Summary judgment was granted for the employer on the ground that the suit is barred by the statute of limitations found at T.C.A. _ 5-6-23, and 224. I. Rule 56.4 provides that summary judgment is appropriate where: (1) there is no genuine issue with regard to the material facts relevant to the claim or defense contained in the motion, and (2) the moving party is entitled to judgment as a matter of law on the undisputed facts. See Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 88 (Tenn. 2); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). "Courts must view the evidence in the light most favorable to the nonmoving party and must also draw all reasonable inferences in the nonmoving party's favor." Staples, 15 S.W.3d at 89. "Courts should grant a summary judgment only when both the facts and the inferences to be drawn from the facts permit a reasonable person to reach only one conclusion." Id. The trial court denied the motion for summary judgment by order entered July 3, 21, stating: "It is the opinion of this Court that Defendants' Motion is not well- founded and should be and is hereby denied." Defendants filed for permission to appeal or for reconsideration. On March 5, 22, the trial court entered an order granting relief from the prior order, granting summary judgment in favor of the defendants and dismissing the complaint. The trial court made no findings of fact, thus the appeal comes with no presumption of correctness. The panel finds that summary judgment was not appropriate in this case. II. A complaint for workers' compensation benefits must be filed within one year after the accident resulting in injury, T.C.A. _ 5-6-23; or within one year after the occurrence of injury, T.C.A. _ 5-6-224. It is well-settled that "the running of the statute of limitations is suspended until by reasonable care and diligence it is discoverable and apparent that an injury compensable under the workmen's compensation laws has been sustained." Livingston v. Shelby Williams Indus., Inc., 811 S.W.2d 511 (Tenn. 1991). It is the date on which the disability manifests itself to a person of reasonable diligence, not the date of the accident which triggers the running of the statute of limitations. Jones v. Home Indem. Ins. Co., 679 S.W.2d 445, 446 (Tenn. 1984). Ordinarily, the limitation period should not begin to run until a physician presents claimant with a diagnosis of his condition. Poore v. Magnavox Co., 666 S.W.2d 48 (Tenn. 1984).
Authoring Judge: Joe H. Walker III , Sp. J.
Originating Judge:Rita L. Stotts, Judge |
Moore County | Workers Compensation Panel | 11/26/02 | |
| Donna Harlow v. Reliance National,
M2001-02336-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 Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Almost three years prior to his death from injuries sustained in a work accident, the employee and his ex-wife (the plaintiff), had taken part in a "remarriage" ceremony at a church but failed to obtain a marriage license. The trial court found that the plaintiff, was the "lawful wife" of the deceased worker and awarded death benefits. Additionally, upon motion by the plaintiff, the trial court commuted the award to lump sum. We reverse the trial court and remand for dismissal because we find that the plaintiff was not the surviving spouse of the deceased. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Reversed. JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J. and JOE C. LOSER, SP.J., joined. Jill A. Hanson, Nashville, Tennessee, for the appellants, Reliance National and All Pro Painting. Joseph D. Baugh, Franklin, Tennessee, for the appellee, Donna Harlow. MEMORANDUM OPINION Gary Harlow and Donna Barber were married in 1973 and divorced in 1994. In 1995, the Harlows reinitiated their relationship, and Mr. Harlow moved into Ms. Harlow's home. In April 1997, the Harlows participated in a "remarriage" ceremony at a church in which marriage vows were exchanged under the direction of a minister. However, no marriage license was obtained at that time nor thereafter. The Harlows lived together until Mr. Harlow's death. In 1998, the Harlows met with a tax preparer who advised them that they could not file a joint tax return without a marriage license. Until the notification by the tax preparer, Ms. Harlow was unaware that no marriage license existed. After meeting with the tax preparer, Ms. Harlow asked Mr. Harlow several times about obtaining a marriage license, and Mr. Harlow responded that "it was not important" or "you worry about silly things." Ms. Harlow took no affirmative action to obtain the license beyond her questioning of Mr. Harlow. The Harlows filed separate tax returns as "single" or "head of household" for the tax years of 1997, 1998 and 1999. Despite filing separate tax returns, the Harlows filed other documents, including a loan application, indicating their status as husband and wife. Mr. Harlow was sporadically employed during the "remarriage" period, and Ms. Harlow served as the primary breadwinner. On January 11, 2, Gary Harlow, an employee of All Pro Painting, sustained severe head injuries after falling from a work platform, and five days later Mr. Harlow died from those injuries. After Reliance National, the workers' compensation insurer for All Pro Painting, denied death benefits to Ms. Harlow as a surviving spouse, Ms. Harlow filed this action against All Pro Painting and Reliance National ("defendants") seeking payment of statutory death benefits under the Tennessee Workers' Compensation Law. The trial court granted Ms. Harlow's motion for summary judgment and awarded death benefits, finding that she was the "lawful wife" of Mr. Harlow because a "solemnized" relationship existed between the Harlows. The trial court also found that Ms. Harlow was an actual dependent of the deceased and that it would violate Tennessee public policy as set forth in Tennessee Code Annotated _ 36-3-113 to declare that the Harlows' "solemnized" relationship was not a marriage. Upon a motion by Ms. Harlow, the trial judge commuted the award to a lump sum. ANALYSIS Review of findings of fact 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). Conclusions of law are reviewed de novo without any presumption of correctness. Ivey v. Trans Global Gas & Oil, 3 S.W.3d 441, 446 (Tenn. 1999). The workers' compensation statutes are to be given an equitable and liberal construction in favor of workers and their dependents. Tenn. Code Ann. _ 5-6-116; Sullivan Electric Co. v. McDonald, 541 S.W.2d 112, 115 (Tenn. 1976). I. Whether Ms. Harlow is the surviving spouse of Mr. Harlow. Tennessee Code Annotated _ 5-6-21(a) provides: For the purposes of the Workers' Compensation Law, the following described persons shall be conclusively presumed to be wholly dependent: -2-
Authoring Judge: James L. Weatherford, Sr.J.
Originating Judge:Russ Heldman, Judge |
Lewis County | Workers Compensation Panel | 11/26/02 | |
| Larry Thrasher v. Carrier Corporation,
M2001-02680-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 suffers from plantar fasciitis in both feet. Causation was vigorously contested. The trial judge found that the plaintiff's condition was job-related. A podiatrist opined that the plaintiff retained a 29 percent impairment to both feet. The trial judge "assessed a permanent, partial disability of 1 percent to the two feet of the plaintiff," notwithstanding that the plaintiff had returned to his pre- injury job, "substantially improved," and in his words, "doing good," with no complaints other than first-step pain upon arising. The finding of 1 percent is excessive and is reduced to 4 percent. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J., and JOE C. LOSER, SP. J., joined. B. Timothy Pirtle, McMinnville, Tennessee, for the appellants, Carrier Corporation and Insurance Company of the State of Pennsylvania. Donald J. Ray, Tullahoma, Tennessee, for the appellee, Larry Thrasher. MEMORANDUM OPINION The Pleadings The plaintiff alleged that he had worked for the Carrier Corporation for thirty years and that "his work required him to stand on his feet for long periods of time, as a result the plaintiff has developed bilateral plantar fasciitis." No other condition is alleged. The defendant denied that the plaintiff's condition was job-related, but was a non- compensable, pre-existing condition. Plaintiff's Testimony The plaintiff testified that he had worked for the Carrier Corporation for thirty-two years in "coil production and press expander setup and operation and coil utility work." Beginning in 1994, he was assigned to a job which required him to stand on a three-inch piece of channel iron while loading and unloading carts of materials, stepping off and on the channel iron onto the concrete floor repetitively. His feet began hurting "five or six years ago,"1 and he consulted his family physician, Dr. Brandon, about the problem. He next reported his foot-problems to the company nurse, who furnished him a list of physicians. He selected Dr. Arms, an orthopedic surgeon, who prescribed medication and physical therapy. He saw Dr. Brandon again, who referred him to Dr. Fred Marino, Jr., a podiatrist.2 Dr. Marino prescribed orthotics, and "took me off work, put my right foot in a cast, and wanted me to rest and take it easy for a while." After nineteen (19) weeks off, the plaintiff returned to work. His testimony is markedly significant: A: I do good, I still have some pain when I get up of a morning first thing, but I do real good . . . If I have to change shoes, I have to change the inserts out and put them in the other shoes. Q: Are you wearing those inserts even today? A: Yes, sir. Q: What about weekends, do you do things, work in the garden, mow the grass, do things of that nature? A: Yes, sir. . . . . . 1 The case was heard May 21, 21. 2 In the interim, the plaintiff was seen by Dr. Robert Bell, another podiatrist, in 1998 and 1999, who took an extensive history fro m the p laintiff, and tre ated h im for dia gnos ed p lantar fasc iitis. Thes e visits to D r. Be ll, his diagnosis, and his treatm ents, were not disclosed by the plain tiff to anyone, including the physicians who subsequently treated or examined him. Moreo ver, the plaintiff did not disclose the fact during discovery procedures. At the trial, he testified that he d id not re call "going to Dr. Bell, or being examined by Dr. Bell, or having his feet x-rayed by Dr. Bell, or giving him this long h istory." T he pla intiff's last visit to Dr. Bell occurred five (5) months before he reported his foot-problems to his emp loyer. Th is extrao rdina ry testimo ny was n ot, for w hateve r reaso n, exp lored in dep th and the trial jud ge did not allud e to it. -2-
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:L. Craig Johnson, Judge |
Coffee County | Workers Compensation Panel | 11/20/02 | |
| Cynthia L. Ursery v. Liberty Mutual Insurance Group,
M2001-02749-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. In this case, the employer appeals the trial court's award of 8% permanent partial disability to the employee where 1) the medical proof established a 5% anatomical impairment to both elbows; and 2) a vocational expert gave the employee a 9% vocational disability rating based on loss of access to 9.4% of the jobs available to her prior to her injury due to her permanent medical restrictions. We find that the evidence does not preponderate against the trial court's findings, and therefore the award is not excessive. We affirm the judgment of the trial court in all respects. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed. JAMES L. WEATHERFORD, SR. J., in which JANICE HOLDER, J., and JOE C. LOSER, JR., SP. J., joined. David T. Hooper, Brentwood, Tennessee, for the appellants, Liberty Mutual Insurance Group and United Parcel Service, Inc. H. Tom Kittrell, Jr., Nashville, Tennessee, for the appellee, Cynthia Ursery. MEMORANDUM OPINION Mrs. Cynthia Ursery, the employee-appellee, was 46 years old at the time of trial. She graduated from high school in 1972 and has had no further educational training. From 1979 until April of 21, Mrs. Ursery worked for United Parcel Service (UPS), the employer-appellant, on a part-time basis. For a number of years she "bagged" small packages by pulling, pushing, or lifting the packages into bags and in turn putting the bags onto a conveyor belt. These packages were supposed to be limited to 1 pounds but at times exceeded 2 pounds in weight. Mrs. Ursery estimated she sorted 2, to 4, packages a night. For at least 1 years of her employment with UPS, she sorted individual small packages. In this job she was required to pick up the package and move her palms into an upright position continuously to read the label on the packages to place them in the correct bin. Other job duties she performed at UPS included loading and fueling trucks, and driving local routes. From 1988 to 1992, Mrs. Ursery also worked at Castner Knotts as a sales clerk where her job duties included unpacking clothes and hanging the items on display racks. In June of 1998, Mrs. Ursery saw Dr. Robert Russell because she had been experiencing pain in her left elbow. Dr. Russell prescribed medicine and gave her an "arm bandit." She returned to Dr. Russell in the fall of 1998 complaining of right elbow pain for which he also prescribed an "arm bandit." In January of 1999, she received two cortisone shots which only seemed to increase the pain in her elbows. Mrs. Ursery sought additional medical care and chose Dr. Jane Siegel from a panel presented to her by UPS. Dr. Siegel took Mrs. Ursery off work for about 5 or 6 weeks. Though her elbows improved with rest, as soon as she returned to work, her pain resurfaced. Dr. Siegel diagnosed chronic medial epicondylitis and performed surgery on Mrs. Ursery's right elbow in May of 1999. Mrs. Ursery returned to work with restrictions. UPS assigned her to a light duty job fueling trucks and driving them short distances across the yard. Mrs. Ursery began to have trouble pulling herself into the trucks and eventually re-injured her right elbow in May of 2. She was put on medical leave until September of 2, when she returned to work sorting light- weight letters. Mrs. Ursery's elbow pain continued. Consequently, Dr. Siegel placed her on permanent restrictions of lifting no more than 5 pounds and of making no highly repetitive motion of her wrist for more than 1 hour at a time. Dr. Siegel found that Mrs. Ursery had reached maximum medical improvement on April 2, 21, and assigned a 5% anatomical impairment rating to both elbows. In April of 21, UPS terminated Mrs. Ursery's employment because it had no work available that she could perform within her medical restrictions. She was earning $2. per hour at the time of her termination. Ms. Rebecca Williams, a Certified Vocational Evaluation Specialist, testified at trial on behalf of Mrs. Ursery. As part of a vocational evaluation performed in August of 21, Ms. Williams interviewed Mrs. Ursery for over 3 hours, administered the Wide Range Achievement Test -2-
Authoring Judge: James L. Weatherford, Sr. J.
Originating Judge:Thomas W. Brothers, Judge |
Davidson County | Workers Compensation Panel | 11/20/02 | |
| Glenn Elizabeth Tefft v. Weakley County Ambulance
M2001-02270-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 judge's finding that the plaintiff sustained a back injury on September 13, 1999 from lifting a patient where the evidence shows the plaintiff never lifted a patient, (2) the evidence preponderates against the trial judge's finding that the plaintiff gave proper notice as required by Tenn. Code Ann. _ 5-6-21 where, without a reasonable excuse for delay, plaintiff began treatment but did not inform defendant that plaintiff's alleged injury was work related until a month and fourteen days later, (3) the trial judge erred in admitting the plaintiff's entire deposition into evidence, over the objection of the defendant, when the plaintiff offered the same after excerpts of the deposition were properly offered by defendant pursuant to Tenn. R. Civ. P. 32.1, and (4) the trial judge erred in awarding the plaintiff medical expenses paid by the plaintiff's health insurance, a nonparty. 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 JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Sean Antone Hunt, Spicer, Flynn & Rudstrom, Memphis, Tennessee, for the appellant, Weakley County Ambulance Service Charles L. Hicks, Camden, Tennessee, for the appellee, Glenn Elizabeth Tefft MEMORANDUM OPINION The employee or claimant, Ms. Tefft, initiated this civil action to recover workers' compensation benefits, as provided by Tenn. Code Ann. _ 5-6-11 et seq, for injuries allegedly suffered in a work related accident on September 13, 1999. Following a trial on August 9, 21, the trial court awarded to her, among other things, permanent partial disability benefits based on 35 percent to the body as a whole. The employer, Weakley County Ambulance Service, 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:Allen W. Wallace, Judge |
Weakley County | Workers Compensation Panel | 11/15/02 | |
| Alma Haney v. Mabry Health Care, Inc.
M2001-02533-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 award of permanent partial disability benefits based on 8 percent to the left leg. 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 TOM E. GRAY, SP. J., joined. Kirk L. Clements, Nashville, Tennessee, for the appellant, Mabry Health Care, Inc. William E. Halfacre, Cookeville, Tennessee, for the appellee, Alma Haney MEMORANDUM OPINION The employee or claimant, Alma Haney, commenced this civil action to recover workers' compensation benefits for injuries arising out of and in the course of her employment with the employer, Mabry Health Care, Inc. Specifically, the employee alleged that on or about November 18, 1998, she suffered injuries to her left leg, including reflex sympathetic dystrophy (RSD). After a trial on the merits, the trial court awarded the claimant, among other things, permanent partial disability benefits based on 8 percent to the left leg. The employer has appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). 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:Clara Byrd, Judge |
Jackson County | Workers Compensation Panel | 11/15/02 | |
| Chester Gray Thompson v. Nashville Electric Service
M2001-02306-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 award of permanent partial disability benefits based on 37.5 percent to the body as a whole is excessive, (2) the trial court erred in finding that the employee suffered a back injury "in the scope and course of the employment," and (3) the trial court erred in commuting the award to a lump sum. The employee questions the admissibility of the treating physician's records because the records were neither admitted through a medical records custodian nor the deposition of the treating physician, and no C-32 form was submitted. As discussed below, the panel has concluded that any error in the admission of the medical records was harmless. We therefore affirm the judgment. 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 JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Mark A. Baugh and Eugene Ward, Nashville, Tennessee, for the appellant, Nashville Electric Service E. Guy Holliman and William Joseph Butler, Lafayette, Tennessee, for the appellee, Chester Thompson MEMORANDUM OPINION The employee or claimant, Mr. Thompson, initiated this civil action to recover workers' compensation benefits for injuries to his back and ankle allegedly resulting from a fall during a training exercise authorized by the employer, Nashville Electric Service. The trial court awarded permanent partial disability benefits based on 37.5 percent to the body as a whole and 5 percent to his ankle.1 Both parties 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:John H. Gasaway, III, Judge |
Chester County | Workers Compensation Panel | 11/15/02 | |
| Royal & Sunalliance v. Barbara Cooper
M2001-01580-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's insurer questions the trial court's finding that the employee's injury is causally related to her employment; and the employee questions the sufficiency of the award. 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 TOM E. GRAY, SP. J., joined. Diana C. Benson and Larry G. Trail, Murfreesboro, Tennessee, for the appellant, Royal and SunAlliance Keith Jordan, Nashville, Tennessee, for the appellee, Barbara Cooper MEMORANDUM OPINION The appellant initiated this civil action seeking a declaration of its rights and liabilities relative to the appellee's claim for benefits under the Workers' Compensation Law. By her answer and counterclaim, the employee or claimant, Barbara Cooper, demanded medical and permanent disability benefits for an injury allegedly arising out of and in the course of her employment by Nissan North America, Inc. After a trial on the merits, the trial court awarded lifetime medical benefits and permanent disability benefits based on 13 percent to the left leg. Both parties 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). 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 Corlew, III, Chancellor |
Rutherford County | Workers Compensation Panel | 11/15/02 | |
| Jimmy Rhodes v. City of Monteagle
M2001-01584-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 suit barred by the statute of limitations and granted summary judgment in favor of the City of Monteagle. We affirm.
Authoring Judge: Gray, Sp.J.
Originating Judge:Hon. Buddy D. Perry, Judge |
Grundy County | Workers Compensation Panel | 11/12/02 | |
| Cathy Mccarson v. Aqua Glass Corporation
M2001-03085-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 attributed a host of complaints to the rigors of her employment as gradually occurring or occupationally based. The medical proof was varied and indecisive leading the trial judge to conclude that she failed to carry the burden of proof. We affirm.
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:Leonard W. Martin, Judge |
Humphreys County | Workers Compensation Panel | 11/12/02 | |
| Royal & Sunalliance v. John H. Seay
M2001-02877-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found that the employee sustained an 8 percent vocational disability to his left leg. The employer concedes that Mr. Seay has a malfunctioning leg, but that the award is excessive. We affirm the judgment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J., and , Joe C. Loser, Sp. J., joined. Diana C. Benson and Larry G. Trail, Murfreesboro, Tennessee, for the appellant, Royal & Sunalliance. William J. Butler, Lafayette, Tennessee, for the appellee, John H. Seay. MEMORANDUM OPINION I. Mr. Seay is fifty-six years old and a veteran employee of Nissan. He sustained an undisputed, job-related injury to his left knee which was exacerbated by continuous activity, and diagnosed as a complex tear of the lateral meniscus which was surgically repaired to the extent possible by Dr. E. Ray Lowery, an orthopedic surgeon. In the course of time Mr. Seay returned to work after being released to do so by Dr. Lowery. He testified that his knee was painful, with burning and swelling, which hindered his job duties. After thirty days following his return to work he requested early retirement because he could no longer perform his duties satisfactorily. At the time of trial, Mr. Seay continued to use a cane and was unable to walk one mile. He testified that it was necessary to rest his knee two hours each day. II. Dr. Lowery opined that Mr. Seay had a 1 percent impairment to his leg, attributable 3 percent to the meniscus tear and 7 percent to arthritis. He declined to express an opinion as to whether Mr. Seay's degenerative arthritis was attributable to his job duties. Mr. Seay was referred to Dr. Robert Landsberg, an orthopedic surgeon, for an independent examination. Dr. Landsberg's examination was apparently thorough and in compliance with the AMA Guides. He testified that Mr. Seay walked with a limp, used a cane, that his left thigh was atrophying, (a common problem with knee injuries), that he had a reduced range of motion, with tenderness and swelling. He diagnosed a post-lateral meniscectomy with post- traumatic arthritis, all attributable to Mr. Seay's work at Nissan, and assessed his lower extremity impairment at 17 percent to 18 percent, with permanent restrictions such as no standing more than twenty minutes at a time, no working for more than twenty minutes, and recommended a sedentary job only. III. The trial judge assessed Mr. Seay's impairment to be 8 percent to his left leg. The employer appeals, insisting that the evidence does not support a finding of 8 percent permanent disability to the left lower extremity most of which must be attributed to pre-existing arthritis. Our review is de novo on the record accompanied by the presumption that the judgment is correct unless contrary to the preponderance of the evidence. Rule 13(d) Tenn. R. App. P. It is well settled that deference must be accorded to the trial judge as to the issue of the credibility of Mr. Seay, his wife, and vocational experts who testified concerning employment opportunities.1 See, Elmore v. Travelers Ins. Co., 824 S.W.2d 541 (Tenn. 1992). It is not disputed, as we have noted, that Mr. Seay sustained a compensable injury which resulted in permanent impairment; the sole issue is, how much? An award need not be supported by the absolute certainty of an expert, because expert opinion is generally uncertain and speculative. Kellerman v. Food Lion, Inc., 929 S.W.2d 333 (Tenn. 1996). The aggravation of a pre-existing condition, like arthritis, is compensable if it "advances the severity of the pre-existing condition." Cunningham v. Goodyear Tire & Rubber Co., 811 S.W.2d 888 (Tenn. 1991). Courts are required by the law in this jurisdiction to consider all pertinent factors, including lay and expert testimony, the employees age, education,2 skills and 1 One of these vocational experts, testifying for Mr. Seay, opined that he was totally and perm anen tly vocationally disabled. 2 Mr. Seay graduated high school, but he is barely literate notwithstanding. -2-
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:Robert E. Corlew, III, Chancellor |
Rutherford County | Workers Compensation Panel | 11/12/02 | |
| Lenda T. Mcclain v. Holiday Retirement Corporation
M2001-02850-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 appeals the judgment dismissing her suit for benefits she attributes to an injury sustained during the course and scope of her employment. Following the presentation of her evidence, the court granted the defendant's Rule 41.2 Motion for Involuntary Dismissal upon a finding that she failed to carry her burden of proving an accidental injury arising out of employment sufficient to establish a prima facie case of entitlement to benefits. The dispositive issue on appeal is whether the involuntary dismissal was appropriately granted. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J. and JOE C. LOSER, SP. J., joined. William L. Underhill and Michael L. Underhill, Madison, Tennessee, for the appellant, Lenda T. McClain. Richard C. Mangelsdorf, Jr., and Mark W. Honeycutt, II, Nashville, Tennessee, for the appellee, Holiday Retirement Corporation. MEMORANDUM OPINION I. The plaintiff was employed as co-manager, with her husband, of a retirement facility. In addition to a salary, she and her husband were provided an apartment in the facility together with meals and utilities. The circumstances of the termination of her employment are not entirely clear, but we deduce that she was fired after requesting a transfer to another facility. She returned to her apartment to pack her belongings preparatory to vacating the premises and injured her back while packing personal books. The trial judge found that the plaintiff did not sustain an on-job injury because it occurred while she was moving her personal belongings, a task not contemplated as part of the job duties of a co-manager for the retirement facility. II. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of factual findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The panel is not bound by the trial court's findings but conducts an independent examination of the evidence to determine where the preponderance of the evidence lies.
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:John H. Gasaway III, Judge |
Montgomery County | Workers Compensation Panel | 11/12/02 | |
| Cathy Judkins v. Findlay Industries/Gardner
M2001-02560-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. This complaint was non-specific as to the occurrence of a job-related accident and any compensable injuries. The essential thrust of the appeal by the employer is directed to the issue of whether the purported failure of the employee to reveal pre-existing medical conditions to an independent medical examiner nullifies his testimony. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J. and JOE C. LOSER, SP. J., joined. Bruce Timothy Pirtle and Mary M. Little, McMinnville, Tennessee, for the appellant, Findlay Industries/Gardner Manufacturing Division. Barry H. Medley, McMinnville, Tennessee for the appellee, Cathy Judkins. MEMORANDUM OPINION The plaintiff is a single forty-year-old female with a seventh-grade education. She has no work skills, and is qualified only for menial jobs. She filed a complaint on February 24, 2, for workers' compensation benefits alleging that within the course and scope of her employment she "received new injuries, cumulative, consecutive, exacerbations and/or aggravation of injuries, and/or conditions in December 1999." The defendant sought no factual specificity, but alleged any basis for the claim was a non- compensable, pre-existing condition unrelated to plaintiff's employment. The plaintiff testified that she had been employed by the defendant for four years when she was injured on December 16, 1999. The details of the nature of her work are skimpy; she testified that: [Y]ou go back and get racks, you bring them up there . . . I was squatted down looking through the parts, hunting what I needed when this guy was putting up a die. And he came back with a tow motor, backed up, and hit the racks, which knocked me over. The plaintiff finished her shift, although her back was hurting; she reported the occurrence and was given the names of three physicians, one of whom was Dr. Rogers whom she saw "two or three weeks later." She saw Dr. Rogers three times, then saw Dr. Zwemer twice, and finally, Dr. Robinson Dyer. She testified that she had back problems previously, but "that they all got better." She denied having any back problems "immediately before this injury happened." Dr. Zwemer testified, as nearly as can be ascertained, that the plaintiff made no mention of prior back problems; that x-ray examination of her revealed "degenerative disc disease in her lumbar spine," confirmed by an MRI examination, and that "I didn't give her any rating." Counsel referred her to Dr. Dyer, who reported that, based upon his examination of the plaintiff and a review of available medical records, she had a permanent partial impairment related to her injury of 5 percent to her whole body. The trial judge `accepted' the testimony of Dr. Dyer and found that the plaintiff had a 17 percent vocational disability. The defendant appeals, insisting that the evidence preponderates against this finding, which is presented for review. Our review is de novo on the record with a presumption that the judgment is correct unless the evidence preponderates against it. Rule 13(d) Tenn. R. App. P. The essential thrust of the defendant's argument is that the opinion of Dr. Dyer is of no value because it was premised on the false assumption that the plaintiff had suffered no prior back problems. Dr. Dyer submitted a Form C-C2, which does not indicate that his opinion was based upon the absence of prior back problems, and the plaintiff testified that she did not recall whether she related her prior problems to Dr. Dyer or not. The credibility of the plaintiff was assailed, but we must accord deference to the trial judge, who credited her testimony not only as to how the accident, if any, occurred, but also as to the sustaining of the injury, if any, and the extent of it. Kellerman v. Food Lion Inc., 929 S.W.2d 333 (Tenn. 1996). The trial judge also `accepted' the testimony of Dr. Dyer who testified that the -2-
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:Charles D. Haston, Chancellor |
Warren County | Workers Compensation Panel | 11/12/02 | |
| George Thomas Argo v. Brentwood Services
M2001-02821-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 failing to dismiss the claim based on the "last injurious injury doctrine," (2) the award of permanent partial disability benefits based on 37.5 percent to the body as a whole is excessive, and (3) the trial court erred in commuting the award to a lump sum. The employee insists he is entitled to receive benefits from one insurer or the other. 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 JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Stacey Billingsley Cason, Nashville, Tennessee, for the appellant, Local Government Workers' Compensation Fund Barry H. Medley, McMinnville, Tennessee, for the appellee, George Thomas Argo MEMORANDUM OPINION The employee or claimant, Argo, initiated this civil action to recover workers' compensation benefits for an alleged work related injury occurring on June 2, 1999, while he was working for the employer, Warren County Sanitation Department.1 2 The cause was dismissed as to Warren County's workers' compensation administrator, Brentwood Services Administrators, Inc. Local Government Workers' Compensation Fund, Warren County's insurer in June 1999, was added as a third party defendant. Local Government Workers' Compensation Fund contended the accident occurred after its coverage lapsed on July 1, 1999. On that issue, summary judgment was issued in favor of Warren County, there being undisputed proof that the accident happened in June, before coverage lapsed. The propriety of that order is not directly questioned in this appeal. After a trial of the remaining issues on October 22, 21, the trial court, finding the injury to have occurred on June 2, 1999, as alleged, awarded, among other things, permanent partial disability benefits based on 37.5 percent to the body as a whole. Local Government Workers' Compensation 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:Charles D. Haston, Judge |
Warren County | Workers Compensation Panel | 11/12/02 | |
| Howard R. Sullins, Jr. v. Winn's Precision, Inc., et al.
M2001-02625-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. This is a carpal tunnel syndrome complaint involving the plaintiff's right arm. He had previously suffered a ruptured biceps tendon involving his right arm, and returned to work after successful surgery. At the time of trial he was still employed and had not been treated for carpal tunnel syndrome for eighteen months. The trial judge found that the plaintiff had a vocational disability of 5 percent to his right arm. We affirm.
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:C. K. Smith, Chancellor |
Wilson County | Workers Compensation Panel | 11/12/02 | |
| Phillip Stevenson v. State of Tennessee
M2001-02522-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 commission erred in dismissing his claim for failure to state a claim for which relief can be granted. As discussed below, the panel has concluded the judgment should be vacated and the cause remanded for further proceedings.
Authoring Judge: Special Judge Joe C. Loser, Jr.
Originating Judge:Commissioner W. R. Baker |
Moore County | Workers Compensation Panel | 10/31/02 | |
| Express Personnel Services, Inc. v. Donna M. Belcher
M2001-02033-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends that the trial court improperly considered the claimant's criminal record, her responsibility for five children, her lack of reliable transportation, and her financial need in determining the claimant's vocational disability rating. As discussed below, the panel has concluded that 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 FRANK F. DROWOTA, III, C. J., and TOM E. GRAY, SP. J., joined. Fred C. Statum, Nashville, Tennessee, for the appellant, Express Personnel Services, Inc. Andrew J. Blackwell, III, Madison, Tennessee, for the appellee, Donna M. Belcher MEMORANDUM OPINION The employee or claimant, Belcher, is thirty-seven years old and a high school graduate. Her work experience has primarily been in production, but she has also been a cook and waitress. She has a felony drug-trafficking conviction and two assault convictions. The claimant began working for the appellant, Express Personnel Services, Inc., in March of 2 at Dominos Pizza National Distribution Center. In June of the same year, she suffered a hyper extension injury to both wrists when she attempted to catch a falling stack of twenty to thirty trays. The parties stipulated that the injury occurred in the course of the claimant's employment and that notice of the injury was properly given to the employer. Once she began undergoing treatment for her injury, she did not return to her job at Dominos. The claimant underwent physical therapy and a right carpal tunnel release. After the surgical release was performed, the claimant developed clenched-fist syndrome in which she could not open her right hand. With physical therapy, the condition of the right hand improved, but the claimant testified that she still experiences pain and numbness in both hands. In April 21, her treating physician released her at maximum medical improvement, assessing her anatomic impairment at five percent to both upper extremities. The claimant's physician restricted her from repetitive use or heavy gripping of the right hand, and from more than occasional bilateral heavy gripping. Additionally, he recommended that she avoid repetitive work or other activity that causes pain in her hands. At trial, the claimant and two corroborating witnesses testified the claimant suffered from pain in her hands and was unable to perform manual tasks she had been able to perform before her injury. The trial court awarded permanent partial disability benefits based on 6 percent to both arms. The chancellor specifically found that the claimant would be unable to obtain employment that involved security or cash-handling because of her prior felony conviction. This is a case of first impression in Tennessee. It raises the question of whether an employer's liability should be reduced because a claimant's criminal history affects the availability of employment to the claimant. Stated in the reverse, the question is whether a claimant's criminal record is a pertinent factor that should be weighed by the court when determining the extent of a claimant's vocational disability. In determining the extent of an injured worker's vocational disability, a trial court is to weigh the anatomic impairment rating, lay and expert testimony, and pertinent factors such as "the employee's skills and training, education, age, local job opportunities and his capacity to work at the kinds of employment available in his disabled condition." Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 458-59 (Tenn. 1988) (quoting Robertson v. Loretto Casket Co., 722 S.W.2d 38, 384 (Tenn. 1986). The appellant claims that the permanent partial disability award is excessive because the trial court improperly considered factors such as the claimant's criminal record, her responsibility for five children, her lack of reliable transportation, and her financial need. While the appellant is correct in asserting that a claimant's financial need and domestic responsibilities are not appropriate factors to be considered in determining vocational disability, the trial court did not base its decision thereon. A careful reading of the trial court's order reveals that the court actually based the claimant's sixty percent permanent partial disability upon only the following factors: the claimant's uncontroverted medical impairment rating, her education, her employment history, her testimony regarding the tasks she can no longer perform as a result of her injury, and the impact her criminal -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Carol L. Mccoy, Chancellor |
Davidson County | Workers Compensation Panel | 10/30/02 | |
| Tammy Bowman v. Fleetwood Homes of Tennessee Inc.,
M2001-02188-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of facts and conclusions of law. The employer appeals the judgment of the trial court awarding the employee 5% permanent partial disability for a right shoulder injury, even though the parties had stipulated prior to trial that this injury was not at issue. The employer further appeals the trial court's ruling combining a 2% vocational disability rating to the arm, which is a scheduled member, with the 5% anatomical impairment rating for the shoulder, which is to the body as a whole, then multiplying both by the 2.5 maximum pursuant to Tennessee Code Annotated _ 5-6-241(a)(1). We hold that the trial court erred in awarding permanent partial disability for the right shoulder because both parties had stipulated that it was not at issue and because no expert testimony supported a finding of permanency. Accordingly, we reverse the judgment of the trial court awarding workers' compensation benefits based upon an injury to the employee's shoulder. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Reversed. JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J., and JOE C. LOSER, SP.J., joined. John R. Lewis, Nashville, Tennessee, for the appellants, Fleetwood Homes of Tennessee Inc., and Kemper Insurance Companies. B. Keith Williams, Lebanon, Tennessee, for the appellee, Tammy Bowman. MEMORANDUM OPINION At the time of trial, Ms. Tammy Bowman, the employee-appellee, was a 34 year old divorced mother of two children. She has an 11th grade education and her primary work experience has been in manual labor. She has worked for Fleetwood Homes of Tennessee Inc. ("Fleetwood"), the employer-appellant, since 1992. Ms. Bowman first noticed a problem with her right shoulder and arm in March of 2, while working for Fleetwood. The majority of Ms. Bowman's work day was spent continuously gripping a caulking gun with her right hand, mopping walls, and cleaning overhead mirrors with her right arm in an overhead position. On May 11, 2, Ms. Bowman was referred to Dr. Jeffrey E. Hazlewood, whose examination revealed some tenderness in her anterior shoulder region. However, he found that Ms. Bowman had normal range of motion in her shoulder with no pain, no shoulder impingement, and no swelling or redness. Dr. Hazlewood concluded that the neurological exam "showed no abnormalities with normal strength, sensation, and reflexes." Dr. Hazlewood's ultimate diagnosis was right wrist and shoulder tendonitis for which he recommended physical therapy. After further complaints of pain in her shoulder, Dr. Hazlewood performed an EMG nerve test on June 14, 2, that returned normal results. Dr. Hazlewood testified in deposition that Ms. Bowman did not have any permanent impairment pursuant to the AMA Guides. Therefore, he did not assign any anatomical ratings for the shoulder or wrist. Dr. Hazlewood testified that Ms. Bowman had legitimate pain in her shoulder, but that she was able to perform at work and home with no restrictions. On November 14, 2, Ms. Bowman saw Dr. Francisca Lytle for an independent medical evaluation at the request of Ms. Bowman's counsel. Dr. Lytle assigned a 1% impairment rating to the right extremity based on decreased grip strength attributed to wrist tendonitis. Dr. Lytle attributed this injury to Ms. Bowman's repetitive use of a caulking gun while working at Fleetwood. Dr. Lytle testified that she would have recommended permanent restrictions in regards to any activity that required a gripping motion. In regard to the shoulder, Dr. Lytle performed several tests that revealed mild shoulder tendonitis that she believed Ms. Bowman incurred while working. Dr. Lytle found soreness in the shoulder, but she also found a normal range of motion and no evidence of instability. She also testified that she would recommend not working in an overhead position because that would aggravate the shoulder tendonitis. Based on her evaluation, Dr. Lytle did not believe that the injury to Ms. Bowman's shoulder was permanent. She also testified that the overhead restrictions "may actually not" be permanent. She also believed that a change in Ms. Bowman's sleeping posture would alleviate the shoulder pain. -2-
Authoring Judge: James L. Weatherford, Sr.J.
Originating Judge:J.O. Bond, Judge |
Macon County | Workers Compensation Panel | 10/30/02 | |
| Mable Calhoun v. Quebecor Printing, Inc.
E2001-00839-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 the plaintiff temporary total disability benefits for the period of May 19, 1999, through January 5, 2, and to award fifty- five percent permanent partial 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 Sullivan County Chancery Court is Affirmed BYERS, SR.J., in which ANDERSON, J., and THAYER, SP.J., joined. Steven H. Trent, of Johnson City, Tennessee, for Appellant, Quebecor Printing, Inc. Tony A. Seaton, of Johnson City, Tennessee, for Appellee, Mable Calhoun. 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 fifty-eight years of age at the time of trial. She has completed the tenth grade and also has earned a general equivalency degree. She has no vocational or specialized training. She is married and her husband is retired. They have no dependent children. The plaintiff began working for the defendant company in 1983. The company, which was then known as Kingsport Press, Inc., is primarily engaged in the manufacture of books. In her seventeen years with the defendant company, the plaintiff worked in a variety of positions. At the time of the injury that is the basis for her claim in this case, she was employed as a sewing machine operator. The plaintiff testified that on July 27, 1997, she was attempting to move a palate or "skid," which was part of the duties of her position. While doing so, her foot became caught between two of the palates, causing her to fall and injure her back and right leg. She reported her injury to her supervisor and worked the remainder of her shift. The evening of the accident, the plaintiff went to the emergency room and was diagnosed with a lumbosacral strain. In the days following the July 27 accident, the plaintiff continued to work but experienced pain in increasing frequency and severity, so her supervisor offered her a panel of three physicians from which to choose a physician to see. The plaintiff chose Dr. John Marshall and first saw him on July 3, 1997, for examination and treatment. Dr. Marshall placed several temporary work restrictions on the plaintiff and returned her to work. The plaintiff continued to see Dr. Marshall throughout 1997. After months of the plaintiff's continued working under restrictions while receiving treatment, Dr. Marshall determined that she had reached maximum medical improvement on January 26, 1998, and assessed permanent partial disability at ten percent to the body as a whole. During her course of treatment with Dr. Marshall, the plaintiff also saw Dr. Fred Killeffer, a neurosurgeon. Dr. Killeffer examined the plaintiff and agreed with Dr. Marshall's assessment of a ten percent impairment to the body as a whole. The plaintiff continued to have severe pain in her back and right leg, but Dr. Marshall and Dr. Killeffer recommended against surgery. The plaintiff then sought treatment from Dr. Gregory Corradino, a non-panel physician. Contrary to the opinions of Dr. Marshall and Dr. Killeffer, Dr. Corradino recommended surgery be performed on the plaintiff's back. This surgery was not authorized by her employer. She continued to work for the defendant company until May 19, 1999, when she left work for the unauthorized surgery. On May 27, 1999, Dr. Corradino performed a hemi-laminotomy and diskectomy on the plaintiff. Following the plaintiff's surgery, she testified that her condition was relatively unchanged, and that the surgery provided no significant improvement in her symptoms. Dr. Corradino found that the plaintiff had reached maximum medical improvement "relative to her surgery", on January 5, 2. He assessed her a fifteen percent impairment to the body as a whole. She continued to see -2-
Authoring Judge: Byers, Sr.J.
Originating Judge:John S. Mclellan, III, Chancellor |
Knox County | Workers Compensation Panel | 10/28/02 | |
| Advanced Plating, Inc. v. James A. Whitehead
M2001-01885-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of Tennessee for findings of fact and conclusions of law. In this case, the employee contends (1) the trial court erred in awarding permanent partial disability benefits to a scheduled member rather than finding that the employee was and is permanently and totally disabled and (2) the trial court erred in awarding temporary total disability benefits for only 19 weeks. Appellee, Advanced Plating, Inc., counters requesting reversal and dismissal contending that the injury to the employee did not arise out of and in the course and scope of his employment. For reasons stated, the judgment of the trial court is affirmed. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Chancery Court Affirmed GRAY, SP. J., in which DROWOTA, C. J., and LOSER, SP. J. joined. George Ellis Copple, Jr. and Ramona P. Desalvo, Nashville, Tennessee, for the appellant, James A. Whitehead. David J. Deming, Nashville, Tennessee, for the appellee, Advanced Plating, Inc. MEMORANDUM OPINION: James A. Whitehead ("Whitehead"), the employee-appellant, was born on the 1th day of February, 1937. He was employed by Advanced Plating, Inc. ("Advanced Plating"), the employer-appellee, as a buffer from 1988 until 1998. Whitehead alleges that on or about January 3, 1998, he injured his right knee while working at his buffing machine when a valve cover, the object he was buffing, became caught on a machine part and was thrown down toward his knee. Whitehead immediately reported the injury to Advanced Plating. Prior to this injury, the then 6-year-old Whitehead suffered from serious health problems including diabetes, hypertension, high cholesterol, and obesity. He was also a recovering stroke victim. After the injury, his knee became swollen and painful, and Whitehead could no longer work after February 16, 1998. He saw Dr. Cranfield, who believed Whitehead was experiencing pain but could not ascertain whether the knee had a fracture. Once he was approved for TennCare, Whitehead saw Dr. Bacon on June 1, 1999. Dr. Bacon found that Whitehead had pre-existing osteoarthritis in his right knee. He treated Whitehead conservatively for ten months and again in April 2. Dr. Bacon then noted that Whitehead's pre-existing osteoarthritis was aggravated by the January 3, 1998 work injury and that this condition progressed more rapidly than usual. Whitehead waited as long as he could, but he could no longer bear the pain. He underwent knee replacement surgery on May 8, 2. Whitehead achieved maximum recovery from the surgery on September 19, 2. Dr. Prachyl, a vocational rehabilitation counselor, tested Whitehead to determine his employability. Based on factors such as Whitehead's limited education, lack of special training, and long history of work as a manual laborer, Dr. Prachyl found that Whitehead qualified for less than 1% of the total jobs in Nashville prior to his injury. Post-injury, the number of jobs available to him further decreased to "essentially zero." Dr. Prachyl concluded that Whitehead was 1% occupationally disabled and unemployable.
Authoring Judge: Gray, Sp. J.
Originating Judge:Irvin H. Kilcrease, Chancellor |
White County | Workers Compensation Panel | 10/22/02 | |
| Daniel M. Johnson v. Schlegel Tennessee, Inc. A/K/A/ Btr
E2001-01570-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 judge's decision that the plaintiff has a permanent disability to the mental faculties which was caused by exposure to chemicals in the workplace. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed BYERS, SR.J., in which ANDERSON, J., and THAYER, SP.J., joined. F. R. Evans, Chattanooga, Tennessee, for the appellants, Schlegel Tennessee, Inc. a/k/a BTR Sealing Systems, North America Operations d/b/a BTR, Inc. and Cigna Property & Casualty. Rex A. Dale, Lenoir City, Tennessee, for the appellee, Daniel M. Johnson. 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 thirty years of age at the time of this trial. He had a twelfth grade education with no college, but was trained vocationally in the Army as a heavy weld mechanic. He began working for the defendants in May, 1991, as a mold operator producing automotive seals. In 1997 he began working as a coater operator, the position he held at the time of the chemical exposures alleged in this cause of action. The plaintiff's duties as coater operator required him to mix and pour toxic chemical coatings, prime, coat, and bake parts for automotive seals. During this process, the various chemicals that he mixed were fed into a reciprocating disk that spun the chemicals at high speed into an aerosol to coat the automotive seals which moved through the coater on a production line. The plaintiff alleges that fumes from this process were supposed to be vented out by an exhaust fan that did not work. When he told his supervisor that the fan did not work, the supervisor told him that it had not worked in quite a while. As a result, the plaintiff alleges, over spray from the spinning reciprocating disk landed outside the area of the coating operation and all around the floor in the area where he worked. The plaintiff alleges that on March 1, 1998, he started having allergic reactions to the chemicals to which he was being exposed at work. The effects of these reactions included rashes, chemical burns on his face, welts all over his body, discolored skin, and loss of motivation. He reported these problems to his supervisor and went to the emergency room for treatment of the symptoms. Over approximately the next eighteen months, as the plaintiff continued working, the symptoms appeared repeatedly and he continued to be treated for them. During this time the defendants paid some temporary total disability benefits when the plaintiff needed treatment and was unable to work. In addition to his physical symptoms, the plaintiff alleges that mental symptoms began to appear from his exposure to the chemicals at work. Several witnesses testified at trial that the plaintiff was emotionally upset, had lost weight, and was nervous and depressed following his exposure to the chemicals. Witnesses also described the plaintiff as panicky, anxious, and paranoid. The plaintiff testified that he now has memory and motivation problems as well as trouble sleeping due to anxiety. The plaintiff saw several different psychiatrists and psychologists for diagnosis and treatment of his mental problems that he alleges were caused by his chemical exposure in the workplace. The reports of these physicians led to the trial court's finding that the plaintiff suffers a psychological problem that was triggered byan initial allergic or toxic reaction that led to subsequent psychological events which resulted in a major depressive episode. -2-
Authoring Judge: Byers, Sr.J.
Originating Judge:Frank V. Williams, Chancellor |
Johnson County | Workers Compensation Panel | 10/18/02 | |
| Olivia Connor v. Chester County Sportswear Co
W2001-02114-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer appeals the award of disability benefits to an employee who felt her knee pop when she stood and twisted to flush the commode while using the restroom at work. We reverse. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Trial Court Reversed. JOE H. WALKER III, SP.J., in which JANICE M. HOLDER, J., and JOE C. LOSER, SP.J., joined. William F. Kendall III, Jackson, TN, for the Appellant, Chester County Sportswear. Michael A. Jaynes, Jackson, TN, for the Appellee, Olivia Connor. MEMORANDUM OPINION The review of the findings of the trial court is de novo with a presumption of the correctness of the decision unless a preponderance of the evidence is contrary to those findings. Spencer v. Towson Moving & Storage, Inc., 922 S.W.2d 58 (Tenn. 1996). The relevant facts are not in dispute. Claimant was forty-two years old and employed with Defendant as a seamstress. She is about five feet five inches tall and weighed approximately 26 pounds. Claimant awoke on the morning of the accident, got out of bed, and felt a little catch in her left knee. She went to work and after about an hour took a restroom break. The restroom had stalls that are described as basic stalls, no different from other stalls. The commode was a standard commode with a handle on the side, described as no different from a commode at home or anywhere else. Claimant described what happened after using the commode: "As I started to get up, I had to turn to pull my pants up, and when I did, my knee twisted...." When asked, "But where you were twisting was to flush the commode. Correct?," she answered "Yes, sir." Claimant testified that the twisting injury caused her to feel as if everything was torn in her left knee. Dr. Nord determined she suffered a torn medial meniscus in her left knee. He described her injury as caused by standing up and twisting at the same time. He tried conservative treatment, which did not help. An arthroscopy was performed to try to take care of the torn cartilage. She had an excessive amount of chondromalacia and arthritis, and the treatment was not successful. She ultimately required total left knee replacement. Her right knee began to have pain as a result of more pressure put on that knee. Following left knee surgery, Claimant's right knee continued to deteriorate and ultimately required total right knee replacement. The employer treated the injury as non-compensable under the Workers' Compensation statute. The trial court awarded benefits. As pertinent to the issue on appeal, the trial court found: "Personal comfort activities, such as seeking toilet facilities, are generally regarded as compensable. Even though the Plaintiff's use of the bathroom was not necessarily beneficial to the employer, it was a part of her employment because of its being necessary for healthy job performance. The use of the bathroom was sanctioned by and provided for the benefit of the employees, and therefore, the cause is compensable as arising out of the course and scope of her employment." I. T.C.A. _ 5-6-12(a)(5) states the injury, in order to be compensable, must be one "arising out of" and "in the course of" employment. It does not state the employee must be doing something beneficial for his or her employer. Thus, the question focuses on whether the activity bears a reasonable relationship to the employment. The phrases "arising out of" and "in the course of employment" are not synonymous. Woods v. Harry B. Woods Plumbing Co., 967 S.W.2d 768, 771 (Tenn. 1998). Both elements must be satisfied to impose liability on the employer. Thornton v. RCA Serv. Co., 188 Tenn. 644, 221 S.W.2d 954, 955 (1949). "In the Course of Employment" "In the course of" refers to the time, place and circumstances of the injury by accident. Loy v. North Bros. Co., 787 S.W.2d 916 (Tenn. 199). Activities termed as "personal comfort activities" are generally regarded as necessities in the workplace. These include such incidental acts as seeking toilet facilities. This activity is generally found to be sufficiently related to employment to be in the course of employment. In Carter v. Volunteer Apparel, Inc. (holding an employee had a compensable claim when injured in a break area prior to the commencement of normal working hours), the Court,
Authoring Judge: Joe H. Walker III, Sp.J.
Originating Judge:Joe C. Morris, Chancellor |
Chester County | Workers Compensation Panel | 10/18/02 | |
| Donald Sisk v. Nexair, Llc
W2001-03077-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer appeals the award of permanent disability benefits to an employee. Because the existence and extent of a worker's permanent disability are questions of fact, the trial court is within its discretion to accept evidence presented by one medical expert over that of another expert. We affirm.
Authoring Judge: Joe H. Walker III, Sp.J.
Originating Judge:Joe C. Morris, Chancellor |
Madison County | Workers Compensation Panel | 10/18/02 |