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| Glenn Edwin Bilyeu v. Sherwin Williams Company
M2001-01338-WC-R3-CV
The defendant appeals the trial judge's decision that the plaintiff suffered the injury of occupational asthma in the course and scope of his employment which resulted in a 75 percent permanent partial disability to the body as a whole. We affirm the judgment of the trial court.
Authoring Judge: Byers, Sr. J.
Originating Judge:John Gasaway, III, Judge |
Robertson County | Workers Compensation Panel | 06/21/02 | |
| The Evidence Is Otherwise. Tenn. Code Ann._ 50-6-225(E)(2). Stone v. City of Mcminnville, 896
E2001-01260-WC-R3-CV
The plaintiffs appeal the trial judge's decision that they failed to carry their burden of proof with respect to the decedent's heart attack being an injury by accident arising out of and in the course of his employment for the company insured by the defendant. We affirm the judgment of the trial court.
Authoring Judge: Byers, Sr. J.
Originating Judge:Billy Joe White, Chancellor |
Knox County | Workers Compensation Panel | 06/20/02 | |
| Freeman Decorating Company v. Joseph W. Bowers
M2001-01750-WC-R3-CV
The trial judge found the plaintiff had suffered no compensable injury. The trial judge made contingent findings that if the injury was compensable the plaintiff would be entitled to ten percent (1%) vocational impairment to the body as a whole and that the defendants average weekly wage was $15.6. We affirm the judgment of the trial court.
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Irvin H. Kilcrease, Jr., Chancellor |
Davidson County | Workers Compensation Panel | 06/17/02 | |
| James Hannah v. Yellow Freight System, Inc.
M2001-00617-WC-R3-CV
In this appeal, the appellant insists the trial court erred in (1) allowing an attorney's fee on 2 percent of the actual recovery, instead of on what the claimant would have recovered if he had lived to age 65, (2) refusing to award bad faith penalties, (3) determining the injured employee's average weekly wage, (4) disallowing unauthorized medical and drug expenses, and (4) disallowing benefits beyond the death of the injured worker. As discussed below, the judgment of the trial court is affirmed in part and the cause remanded for further consideration only of the attorney fee issue.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Irvin H. Kilcrease, Chancellor |
Davidson County | Workers Compensation Panel | 06/17/02 | |
| Daniel Keith Lindeman v. Charles Sain,
M2000-01803-WC-R3-CV
The trial court found that plaintiff was injured as a result of a work-related accident, was an employee of defendant Charles Sain d/b/a Sain Drywall [hereafter Sain] at the time of the accident and that Sain was a subcontractor of the defendant Summar Construction, LLC. The court further found that Sain had employed five or more people at one time and was subject to the requirement of the Worker's Compensation Act and that Sain would be responsible to Summar Construction for any payment made by them to the plaintiff for his injuries. We reverse the judgment which makes Sain liable and affirm the judgment as to Summar Construction, LLC.
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Robert E. Corlew, Chancellor |
Rutherford County | Workers Compensation Panel | 06/17/02 | |
| Eugene Osborne v. State Industries, Inc.
M2001-01288-WC-R3-CV
The plaintiff, who claimed that he injured his back at work while painting traffic lines with a line striker, appeals the judgment of the trial court dismissing the case after finding that the plaintiff failed to prove he suffered an accident or injury arising out of and in the course and scope of his employment. We hold that the evidence does not preponderate against the trial court's findings. Accordingly, the judgment of the trial court is affirmed.
Authoring Judge: James L. Weatherford, Sr. J.
Originating Judge:Allen W. Wallace, Judge |
Cheatham County | Workers Compensation Panel | 06/12/02 | |
| Mary Barnett v. S&R of Tennessee,
W2001-01984-WC-R3-CV
In this appeal, the employer insists the evidence preponderates against the trial court's findings (1) that the claimant suffered an injury arising out of and in the course of employment, and (2) the trial court's finding that the injury is permanent. As discussed below, the panel has concluded the award should be modified to one based on 15 percent to both arms, but otherwise affirmed.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Dewey Whitenton, Chancellor |
Lauderdale County | Workers Compensation Panel | 06/11/02 | |
| Jewel Powers v. Johnson Controls,
W2001-00524-WC-R3-CV
In this appeal, the Second Injury Fund insists (1) the claim is barred by the one-year statute of limitations, (2) the employer is judicially estopped from asserting it had actual notice of the employee's pre-existing disability, when it denied such knowledge in its answer, and (3) the trial court erred in its apportionment of liability between the Fund and the employer. As discussed below, the panel has concluded the judgment should be affirmed
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Joe C. Morris, Chancellor |
Johnson County | Workers Compensation Panel | 06/11/02 | |
| Faye Butterfield v. Crawford & Company
W2001-01178-WC-R3-CV
In this appeal, the employer-appellant insists the trial court erred in (1) considering an evaluating physician's opinion of the extent of the employee's medical impairment, as not being based on statutorily approved guidelines, and (2) the award of permanent partial disability benefits based on 42 percent to the body as a whole is excessive under the circumstances. As discussed below, the panel has concluded the award exceeds the maximum prescribed by statute and the judgment should be vacated and the cause remanded with instructions.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Joe C. Morris, Chancellor |
Madison County | Workers Compensation Panel | 06/11/02 | |
| Larry Patterson v. Premier Medical Group, P. C.,
M2001-01380-WC-R3-CV
In this appeal, the appellants contend (1) the trial court erred in awarding disability benefits in light of the appellee's refusal to undergo carpal tunnel release surgery, (2) the trial judge erred in admitting into evidence and considering testimony of a vocational expert called by the appellee, and (3) the trial judge erred in awarding permanent total disability benefits for a scheduled injury. As discussed below, the panel has concluded the award of permanent partial disability benefits should be modified to one based on 1 percent to both arms.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Allen Wallace, Judge |
Houston County | Workers Compensation Panel | 06/03/02 | |
| Heather Lynn Key v. American Insurance Company
M2001-00980-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 to be 22 _ percent anatomically impaired, and applied a multiplier of 2 _ times in awarding benefits based upon a 56.25 vocational percent impairment. The evidence preponderates against a finding of 22 _ percent anatomical impairment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Affirmed as Modified WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J. and HOWELL N. PEOPLES, SP. J., joined. William R. Pigue and A. Allen Smith, III, Nashville, Tennessee, for the appellant, American Insurance Company. William Joseph Butler and E. Guy Holliman, Lafayette, Tennessee, for the appellee, Heather Lynn Key. MEMORANDUM OPINION Background On March 18, 1999, the plaintiff filed a complaint for workers' compensation benefits resulting from alleged injuries to her right shoulder, arm and neck. On May 19, 1999, she filed another complaint for workers' compensation benefits resulting from alleged injuries to her left shoulder and arm. The defendant responded that the plaintiff continued to work, that her injuries were minimal, and that she suffered no significant anatomical impairment or vocational disability. The cases were consolidated for trial. The trial court found that the plaintiff sustained a 22 _ percent anatomical impairment resulting in a 56.25 percent vocational impairment and awarded benefits accordingly. The defendant appeals, insisting that the award is excessive because the findings are not supported by credible proof. Our review is de novo on the record with the presumption that the judgment is correct unless the evidence otherwise preponderates. Rule 13 (d) T.R.A.P. The Evidence The plaintiff is a 29 year old mother of two children, ages seven and nine. She is a high school graduate with some college work and vocational courses in computer science and various hobbies. She began working for Bosch Braking Systems in April 1995, doing assembly work. She resigned her job on March 7, 2 because "I didn't feel I was getting better." It is significant that she missed no time from work, and she testified that at the time of trial nine months after she left work her condition had improved. She was then under no medical treatment, and she "had no interest in working." She testified that she had difficulty in performing household chores, driving her car and other activities which required physical exertion. Her husband corroborated her testimony concerning her imposed work limitations. Plaintiff testified that she first began having difficulties in October of 1998 when she began experiencing discomfort in her right shoulder and arm. She was treated by Dr. Michael Bernui, whose notes indicate that he initially treated her left shoulder and arm. At a follow-up visit, she complained of discomfort in her right shoulder and arm, and Dr. Bernui treated her conservatively. She next saw Dr. Bernui several months later, shortly before filing suit, complaining of persistent pain in her right arm and shoulder. He continued to prescribe physical therapy and the use of anti- inflammatory drugs, but determined that a nerve conduction study would be useful in evaluating the plaintiff's condition. He referred her to a neurologist, Dr. Alan Bachrach, for a complete EMG study. The study was performed of the right upper extremity and revealed no evidence of abnormality. Dr. Bernui continued to treat the plaintiff on a weekly basis. With no objective evidence of physical dysfunction, he ordered an x-ray of her right shoulder which revealed no abnormality. He thereupon referred the plaintiff to an orthopedic specialist, Dr. Thomas Gautsch. -2-
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:J. O. Bond, Judge |
Macon County | Workers Compensation Panel | 05/29/02 | |
| Pamela H Arvey v. Aztex Enterprises
E2001-01262-WC-R3-CV
The employer contends the trial court erred in refusing to cap the award at two and one-half times the medical impairment and that the award is excessive under the facts. We affirm the judgment of the trial court.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Frank V. Williams, III, Chancellor |
Knox County | Workers Compensation Panel | 05/24/02 | |
| Lisa Gregory v. Bradley County Sheriff's Department
E2001-01393-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The employee appeals the denial of worker's compensation benefits on the basis that the trial court used an incorrect standard of proof in evaluating the medical evidence. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Bradley County Chancery Court is Affirmed. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER., JUSTICE, and JOHN K. BYERS, SR. J., joined. Bert Bates, Cleveland, Tennessee, for the Appellant, Lisa Gregory. William A. Lockett and Michael A. Kent, Cleary and Lockett, Chattanooga, Tennessee, for the Appellee, Bradley County Sheriff's Department. 1 MEMORANDUM OPINION Facts On December 5, 1999, Lisa Gregory was employed as a correctional officer by the Bradley County Sheriff's Department. She observed an inmate hanging inside a holding tank and ran into the cell to assist. She lifted the inmate and felt something pop in her left wrist. That evening she went to the emergency room and was advised to follow up with an orthopedic surgeon. She went to Dr. Robert Beasley who advised her to wear a wrist brace for two weeks. Ms. Gregory returned to Dr. Beasley on December 27, 1999 and she had improved considerably, and had just about returned to her baseline condition. She was returned to her regular work duties with some restrictions. She was asked to return in six weeks, but did not return until May 9, 2. Ms. Gregory acknowledged that she had returned to work in her same job when her condition seemed to worsen in May, 2. On May 9, 2, Dr. Beasley took x-rays that revealed that her condition had changed and that the lunate bone in her wrist was deteriorating, which Dr. Beasley believed was a result of the progression of her Kienbock's disease. Dr. Beasley had treated Ms. Gregory for a work-related injury on July 25, 1992 when she fell down some steps and landed on her left wrist. The fall caused Ms. Gregory to develop Kienbock's disease in which the blood supply to the lunate bone is lost. Dr. Beasley testified that this condition is progressive and, over time, causes the lunate bone to hurt, fragment and ultimately collapse. In January 1993, Dr. Beasley had performed an intercarpal fusion in order to transfer some of the load away from the lunate bone. He assigned a 2 percent impairment rating to the left arm for the 1992 injury and she was awarded a judgment for worker's compensation benefits for 3 percent disability to the left arm on December 13, 1994. 2
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Jerri Bryant, Chancellor |
Knox County | Workers Compensation Panel | 05/20/02 | |
| Ruthann Marie Rhoady v. Insurance Company of
M2001-00614-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the appellant insists the evidence preponderates against the trial court's findings (1) that the employee gave timely written notice of her injury and (2) that the injury occurred in the course and scope of employment. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21) Appeal as of Right; Judgment of the General Sessions Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Mary Melinda Little, McMinnville, Tennessee, for the appellants, Insurance Company of the State of Pennsylvania and Bridgestone/Firestone, Inc. Barry H. Medley, McMinnville, Tennessee, for the appellee, Ruthann Marie Rhoady. MEMORANDUM OPINION The employee or claimant, Rhoady, is thirty-three years old with a tenth grade education, a general education diploma and experience as a laborer. She works for Bridgestone/Firestone, Inc. in tire production. She testified that on December 14, 1998, she began her shift at 7: p.m. During the early hours of the next day, she felt a sharp, low back pain while bending down to tape a heavy tire. She testified further that she first thought she had a kidney injury, but that the doctor ruled that out in January 1999. She continued working until January 13, 1999, when she filed a written report of the injury to the employer. Two board certified orthopedic surgeons examined the claimant. Dr. Robert P. Landsberg diagnosed her injury as a "broad based central disc herniation with intermittent L-5 nerve root irritation" causally related to her injury at work. Dr C. R. Dyer agreed. Both doctors found the claimant to be truthful. Dr. Arthur Cushman, a neurosurgeon, agreed as to causation, but did not comment one way or the other on the claimant's truthfulness. The claimant gave all of the doctors the above history. Our examination of the record reveals no medical evidence and no direct evidence that the injury occurred other than as the claimant and the doctors have said it occurred. The trial court, upon considering all the evidence and arguments of counsel, awarded workers' compensation benefits as provided by law. Appellate review of findings 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 the evidence is otherwise. Tenn. Code Ann. _ 5-6- 225(e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court that had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The appellant first contends the claimant failed to give timely written notice of her injury. Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer has actual knowledge of the accident, give written notice of the injury to his employer. Benefits are not recoverable from the date of the accident to the giving of such notice, and no benefits are recoverable unless such written notice is given within 3 days after the injurious occurrence, unless the injured worker has a reasonable excuse for the failure to give the required notice. The notice may be given by the employee or his representative. Tenn. Code Ann. _ 5-6-21. Whether or not the excuse offered by an injured worker for failure to give timely written notice is sufficient depends on the particular facts and circumstances of each case. A. C. Lawrence Leather Co. v. Britt, 22 Tenn. 444, 454, 414 S.W.2d 83, 834 (1967). The presence or absence of prejudice to the employer is a proper consideration. McCaleb v. Saturn Corp., 91 S.W.2d 412, 415 (Tenn. 1995). Generally, the beginning date for computing notice is the date on which the effects of the -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Larry Ross, Judge |
Warren County | Workers Compensation Panel | 05/17/02 | |
| Tammie Rose Simons v. Findlay Industries, Inc.
M2000-02956-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 employer appeals an award of permanent partial disability benefits on the basis that the employee suffered no permanent medical impairment. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Warren County Chancery Court is Affirmed. HOWELL N. PEOPLES, SP. J., in which ADOLPHO A. BIRCH, JR., JUSTICE, and WILLIAM H. INMAN, SR. J., joined. Patrick A. Ruth and K. Melissa Howard, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the Appellant, Findlay Industries, Inc. Barry H. Medley, Farrar, Holliman & Medley, McMinnville, Tennessee, for the Appellee, Tammie Rose Simons 1 MEMORANDUM OPINION Facts On October 19, 1999, Tammy Rose Simons ("Ms. Simons") filed a Complaint seeking workers' compensation benefits for injuries to her shoulders, arms, hands and fingers of each hand caused by repetitive and/or frequent use or her shoulders, arms, hands and fingers arising out of and in the scope of her employment with Findlay Industries, Inc. ("Findlay"). Ms. Simons, age 41, completed the 12th grade and worked for Findlay for approximately 13 years. She has no special skills or special training and has never served in a supervisory capacity. Before 1996, she had no prior injury to, or problems with, her shoulders, wrists and hands. She reported to her supervisor that she was having problems with her hands and wrists. She was seen by a series of doctors, two of whom testified by deposition in this case. Dr. Robert Clendenin testified that he first saw Ms. Simons on June 1, 1999 with complaints of bilateral wrist and arm pain commencing around 1997. She reported that due to a low back injury, she was off work from November 1998 to March 1999 and her arm symptoms disappeared. Within a couple of days after she returned to work, she again developed pain over the dorsal aspect of both wrists with some radiation into the shoulders. Dr. Clendenin examined her and found no objective signs of injury. He concluded that she had tendonitis of the wrist extensor muscles, and recommended that she take prednisone and engage in a physical therapy program to reduce any inflammation in the tendons in her hands. He recommended to her employer that she be placed on light duty with no repetitive gripping or grasping, pushing or pulling over ten pounds. Dr. Clendenin saw her again on June 25, 1999, and her wrist examination was normal with good motion. He performed a nerve conduction test of the median nerve that was normal. He returned Ms. Simons to regular duty on June 27, 1999, but indicated she might need some type of rheumatologic treatment. Dr. Susan Jacobi, a rheumatologist, reported to Dr. Clendenin that Ms. Simons had episodic joint pain, which Dr. Jacobi concluded was tendonitis, and recommended Ms. Simons use Celebrex when she had flare-ups in pain. Dr. Clendenin last saw Ms. Simons on December 3, 1999 at which time she had no complaints of pain, tested normal in both wrists and had normal sensation. Dr. Clendenin testified that Ms. Simons should find a job that required less repetitive motion of her arms, but assessed her at a zero impairment rating based on the American Medical Association Guides to the Evaluation of Permanent Impairment. He testified that the AMA Guides provide that "a patient with wrist or hand pain or other symptoms may not have evidence of a permanent impairment. Alteration of the patient's daily activities or work-related tasks may reduce the symptoms. Such an individual should not be considered permanently impaired under the Guide's criteria." Dr. Clendenin testified that Ms. Simons was having no shoulder-related symptoms when he saw her, but his office notes introduced as exhibits at his deposition reflect that on June 1, 1999, she complained of pain in her back, hands, and shoulders. Ms. Simons was seen by Dr. Francisca Lytle, a board certified orthopedic surgeon on March 15, 2 for evaluation. Dr. Lytle diagnosed Ms. Simons as having recurring tenosynovitis in the wrists and hands based on history. She also found impingement testing on the shoulders to be positive and diagnosed impingement syndrome. She testified that the 2
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Charles D. Haston, Sr., Chancellor |
Warren County | Workers Compensation Panel | 05/17/02 | |
| Owen Franklin v. State of Tennessee
E2001-00610-WC-R3-CV
This case was heard in the Eastern Division of the State Claims Commission. The Commissioner who heard the case found the plaintiff had failed to prove that he received an injury to his respiratory system and allergies as a result of exposure to chemicals in the print ship at East Tennessee State University where he was employed. We affirm the judgment.
Authoring Judge: John K. Byers, Sr.. J.
Originating Judge:Michael Lacy, Claims Commissioner |
Franklin County | Workers Compensation Panel | 05/17/02 | |
| Judith S. Cooley v. Murray Outdoor Products, Inc.
W2001-01747-WC-R3-CV
In this appeal, the Defendant/Appellant asserts that the evidence preponderates against the trial court's award of seventy-five percent (75%) to the leg as Plaintiff has minimal vocational disability. As discussed below, the panel concludes that the judgment should be affirmed.
Authoring Judge: L. Terry Lafferty, Senior Judge
Originating Judge:C. Creed Mcginley, Judge |
Henry County | Workers Compensation Panel | 05/16/02 | |
| Courtney Brown v. Bridgestone/Firestone, Inc.
M2001-01145-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 fact and conclusions of law. The defendant appeals the judgment of the trial court awarding the employee 5% permanent partial disability for disfigurement pursuant to Tennessee Code Annotated _ 5-6-27(3) (E) for scarring resulting from a friction burn sustained when her left hand got caught in a conveyor belt while working for the employer. 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 ADOLPHO A. BIRCH, J., and JOE C. LOSER, SP. J., joined. Mary M. Little, McMinnville, Tennessee, for the appellant, Bridgestone/ Firestone, Inc. B. Keith Williams, Lebanon, Tennessee, for the appellee, Courtney Brown. MEMORANDUM OPINION Ms. Courtney Brown was 23 years old at the time of trial. She has a high school diploma and attended college for 1.5 years majoring in pre-vet. Prior to her job at Bridgestone/Firestone, she worked as a vet technician and as a truck dispatcher at a sporting goods store. She is right-handed. On August 6, 1999, she suffered a third-degree friction burn to the back of her left hand when her hand got caught in a conveyor belt at Bridgestone/Firestone. Ms. Brown was referred to Dr. Bruce Shack, M.D., Chairman of the Department of Plastic Surgery at Vanderbilt. Dr. Shack found that she had suffered a very deep injury involving a full thickness loss of the skin across the entire breadth of the back of her left hand that would require skin grafting. On August 13, 1999, he performed skin graft surgery. On June 29, 2, Dr. Shack found that Ms. Brown had reached maximum medical improvement and released her to return to work with no restrictions. He found that she had regained full range of motion and did not require any further therapy. Although he noted that her "scars were still a little bit red", he felt the scars would "go on to probably mature satisfactorily." He did state that skin grafts require more lubrication and protection than normal skin. Dr. Shack found that she did not have any limitations on the use of her hand. Dr. Shack assigned a 2% impairment to the hand based on Page 28 Table 2 Class 1 for skin disorders contained in the AMA Guides Fourth Edition. He admitted that this section of the Guides is more subjective and vague than other sections, but felt she did deserve some impairment based on the scar. On October 16, 2, Dr. David Gaw, M.D., orthopedist, performed an independent medical examination. Dr. Gaw found that Ms. Brown had a scar 6 centimeters in length and 3 centimeters in width along the top of her left hand. He also reported she had a 1.5 centimeter scar along her left index finger. Ms. Brown expressed concern about the appearance of the scar, which Dr. Gaw described as red, thickened and tender to touch. Dr. Gaw found that her index finger would not close completely to the palm in making a fist but would only go to within 3/8 of an inch of the palm of her hand. Dr. Gaw assigned 2% impairment based on slight motion loss of the index finger and 5% impairment to the left hand for disfigurement, scars and skin graft using the same section of the Guides on skin disorders as Dr. Shack had used for his impairment rating. He did not assign specific restrictions but indicated that pain would be the limiting factor on her activities. Ms. Brown testified that the scar does affect her grip strength, there is not a lot of feeling in the skin graft area, and that the range of motion in her finger bothers her sometimes. She also stated it can be very painful if she gets hit in that area. The scar appears worse in the winter and breaks out in a bad rash. Ms. Brown continues to work for Bridgestone/Firestone earning the same wage she earned at the time of the accident. When asked how this scar affected her ability to get a job or keep a job, Ms. Brown responded as follows: I'm very ashamed of it. I keep it covered up. Most of the time I'm wearing long sleeves. I try to cover them up. I don't feel I'm as outgoing as I used to be. Especially talking with my hands or doing anything with my hands. I keep them, keep it covered most of the time. -2-
Authoring Judge: James L. Weatherford, Sr. J.
Originating Judge:J.O. Bond, Judge |
Wilson County | Workers Compensation Panel | 05/15/02 | |
| Kathy Jean Berry v. Sara Lee Corporation d/b/a Jimmy
W2001-00041-WC-R3-CV
In this appeal, Defendants/Appellants asks: (1) Did the trial court err in finding that Plaintiff sustained a compensable injury to her shoulder?; (2) Did the trial court err in finding that Plaintiff sustained a second and distinct compensable injury to her right elbow?; and (3) Did the evidence presented at trial preponderate against the amount of the permanent partial disability benefits awarded by the trial court, with respect to the shoulder injury and the second right elbow injury? As discussed below, the trial court did not err and this panel has concluded that the judgment should be affirmed.
Authoring Judge: L. Terry Lafferty, Senior Judge
Originating Judge:J. Steven Stafford, Chancellor |
Dyer County | Workers Compensation Panel | 05/14/02 | |
| John Marshall v. Sverdrup Technologies, Inc.
M2000-02951-WC-R3-CV
The employer appeals an award of permanent total disability benefits to age 65, and the Second Injury Fund appeals the apportionment of liability for 3 percent of the benefits to the Fund. We affirm the judgment of the trial court.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Jeffrey Stewart, Chancellor |
Marshall County | Workers Compensation Panel | 05/13/02 | |
| Donald R. Moore v. L and D Transportation
E2000-02779-WC-R3-CV
The trial court found the plaintiff had suffered a compensable back injury and awarded 35 percent permanent partial disability. The plaintiff has three prior awards of workers' compensation benefits beginning in 1975 with an award of 7 percent for an injury to his left hand, which translates into 2.625 percent to the body as a whole, and, for back injuries, an award in 198 of 25 percent to the body as a whole and in 1998, an award of 59.718 percent to the body as a whole from the State of Kentucky. The trial court apportioned 12.657 percent to the defendant and the balance to the Second Injury Fund. The employer questions whether the evidence supports a finding that the plaintiff suffered a work-related injury resulting in 35 percent disability. The plaintiff appeals and argues he is permanently and totally disabled. We affirm the judgment of the trial court.
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:John F. Weaver, Chancellor |
Moore County | Workers Compensation Panel | 05/13/02 | |
| Herschel Edwin Luna v. Gaf Fiberglass Corporation,
M2001-01155-WC-R3-CV
In this appeal, the employer insists (1) the claim is barred by Tenn. Code Ann. _ 5-6-23 and (2) the trial court's award of permanent partial disability benefits based on 1 percent hearing loss is excessive. As discussed below, the panel has concluded the judgment should be affirmed.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Carol Soloman, Judge |
Davidson County | Workers Compensation Panel | 05/13/02 | |
| Lindell Hollingsworth v. S & W Pallet
W1998-00857-SC-WCM-CV
In this workers' compensation action involving the Second Injury Fund, the employee has suffered two disabling heart attacks. The first was non-compensable; the trial court found the second compensable and awarded permanent and total disability benefits, with 4 percent of the disability allocated to the second heart attack. The court held that the Second Injury Fund would have been responsible for the remaining 6 percent of benefits, but the statute of limitations barred recovery against the Fund. The Special Workers' Compensation Appeals Panel affirmed the trial court's award of permanent total disability but held the employer liable for 1 percent of the benefit award. We granted a motion for review before the entire Supreme Court pursuant to Tenn. Code Ann. _ 5-6-225(e)(5)(B) (1997). Primarily, we are asked to determine whether an employer's allegations of a pre-existing condition covered by the Second Injury Fund statute should be treated as an affirmative defense that is waived if not timely raised. We hold that the employer is not barred from attributing liability to the Fund after the running of the statute of limitations. Additionally, the employee asserts that the trial court erred in attributing 4 percent disability, rather than 1 percent, to the second heart attack. We hold that the evidence supports a finding that the second injury resulted in 4 percent disability. In regard to all remaining issues, we adopt the memorandum opinion of the Special Workers' Compensation Appeals Panel affirming the award of permanent total disability and remanding the cause for determination of temporary total disability.
Authoring Judge: Adolpho A. Birch, Jr., J.
Originating Judge:Julian P. Guinn, Judge |
Benton County | Workers Compensation Panel | 05/10/02 | |
| George v. Clarendon National Ins.
M2000-02125-WC-R3-CV
The defendants contend that the trial court erred in awarding the plaintiff 5% permanent partial disability to the right arm and 65% permanent partial disability to his left arm for injuries sustained when he slipped on ice and fell while stretching a tarpaulin over a flatbed trailer which led to diagnoses and surgery for carpal tunnel syndrome in both wrists and chronic lateral epicondylitis (tennis elbow) of his left elbow. The defendants also contend the trial court abused its discretion in commuting a portion of the award to Mr. George to a lump sum amount. After a complete review of the entire record, the briefs of the parties, and the applicable law, We affirm the judgment of the trial court.
Authoring Judge: James L. Weatherford, Sr. J.
Originating Judge:Charles D. Haston, Chancellor |
Warren County | Workers Compensation Panel | 05/10/02 | |
| Michele Renee Smith v. Cookeville Regional Medical
M2001-00982-WC-R3-CV
The defendant appeals the judgment of the trial court finding that the employee, an ICU nurse: 1) suffered a back injury while caring for a patient that aggravated her pre-existing back condition; 2) gave proper notice of her injury under the circumstances; and 3) sustained a 17% anatomical impairment and 37% permanent partial disability to the body as a whole. We hold that the evidence does not preponderate against the trial court's findings. Accordingly, the judgment of the trial court is affirmed.
Authoring Judge: James L. Weatherford, Sr. J.
Originating Judge:John J. Madduxjudge |
Smith County | Workers Compensation Panel | 05/10/02 |