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| Regina Ann Thompson v. Vivra Renal Care, Inc.
W2000-03017-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. Although the only issue at trial was the extent of the employee's permanent disability, the employer contends in this appeal the evidence preponderates against the trial court's findings as to causation and permanency. The panel has agreed to address the issues on appeal and, as discussed below, concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and ROBERT L. CHILDERS, SP. J., joined. John D. Burleson and V. Latosha Mason, Jackson, Tennessee, for the appellant, Vivra Renal Care, Inc. Mary Dee Allen, Cookeville, Tennessee, and George L. Morrison, III, Jackson, Tennessee, for the appellee, Regina Ann Thompson MEMORANDUM OPINION The employee or claimant, Regina Ann Thompson, is a licensed practical nurse. She began working for the employer, Vivra Renal Care around September 1995 in its dialysis clinic. She is also trained in the care of HIV positive and hepatitis patients. Approximately two years after beginning work for the employer, she was required to perform a treatment on an HIV positive, hepatitis infected patient. She followed the usual precautions of donning two pairs of gloves, two pairs of shoes, a coat and a cap, then began the treatment in a room secluded from other patients. After she removed the needle from the patient, the patient made an unexpected move and the claimant accidentally stuck herself in the thumb with the dirty needle. Although tests conducted soon after the accident reflected no evidence of infection, she received a notice from the Obion County Health Department that a letter from the Shelby County Health Department indicated that she was HIV positive. She later learned that the letter was intended for someone else with the same or similar name and that she was not infected. The tests had been conducted in Shelby County. She was given literature to read and advised of organizations available to her as her disease progressed. She became anxious about her condition and her family and other personal relationships suffered. Her attorney referred the claimant to Dr. Elias King Bond, a psychiatrist, who established both medical causation and permanency. The record contains no countervailing medical or lay proof. At the time of the trial the claimant was taking prescription antidepressant medication. She is now working for a different employer but becomes squeamish at the sight of blood and in the use of needles. The trial court awarded, inter alia, permanent partial disability benefits based on 15 percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The extent of an injured worker's vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 456 (Tenn. 1999). The employer argues that the mental injuries are compensable only if they can be traced to an identifiable, stressful, work-related event producing a sudden mental stimulus such as fright, shock or excessive unexpected anxiety, citing Batson v. Cigna Property and Cas. Co., 874 S.W.2d 566, 569 (Tenn. 1994). However, mental and nervous illnesses are also compensable when causally connected to a work-related accident. Gentry v. Dupont, 733 S.W.2d 71, 73 (Tenn. 1987). The employer argues that Dr. Bond's report does not establish permanency. From our independent examination of Dr. Bond's report, we disagree. For the above reasons and because the evidence fails to preponderate against the findings of the trial court, the judgment is affirmed. Costs are taxed to the appellant. -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:William Michael Maloan, Chancellor |
Obion County | Workers Compensation Panel | 12/11/01 | |
| David Prater v. Mayfield Dairy Farms, Inc.
E2000-03030-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 trial court found the plaintiff 9 percent vocationally disabled. We affirm the judgment of the trial court but find the preponderance of the evidence indicates the plaintiff is entitled to a award of permanent total disability. We modify the judgment accordingly. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, J. and ROGER E. THAYER, SP. J., joined. Bert Bates, Cleveland, Tennessee for the appellant, David Prater. Kent T. Jones, Chattanooga, Tennessee for the appellee, Mayfield Dairy Farms, Inc. 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 findings, 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 court in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The plaintiff, age forty at the time of trial, is married with two minor children. He has a high school education and graduated from a two-year vocational program in auto mechanics. His work history consists of work in a service station, in a machine shop, as a local delivery truck driver and in a factory. The plaintiff began working for the defendant sometime in October of 1995. While employed with the defendant, the plaintiff also worked as a part-time police officer for the City of Niota and as a reserve officer for the McMinn County Sheriff's Department. On December 1, 1998, the plaintiff was nearing the end of his shift and was performing trash detail duties when he injured his back. The plaintiff was lifting 2 to 5 pounds of cardboard boxes at a time and placing them in a baler. He bent over to lift some boxes into the baler, experienced "excruciating pain" and blacked out. He was taken to the hospital by ambulance and kept overnight for treatment. An MRI revealed a ruptured disc, which was subsequently treated with surgery. After surgery, the plaintiff continued to experience disabling pain in his back and leg. Despite extensive treatment for his work-related injury, the plaintiff has not been able to return to work. A post-surgical MRI revealed inoperable scarring at the surgical site. A Functional Capacity Evaluation was performed on February 23, 1999; it showed the plaintiff capable of performing sedentary work. A later Functional Capacity Evaluation performed by the same examiner showed the plaintiff incapable of even sedentary work as defined by the United States Department of Labor. The trial court found the plaintiff suffered a work-related injury resulting in a medical impairment of 25 percent to the body as a whole and further found the plaintiff sustained a 9 percent permanent partial disability. We affirm the judgment of the trial court but find the preponderance of the evidence indicates the plaintiff is entitled to a award of permanent total disability. We modify the judgment accordingly. Medical Evidence Dr. Robert E. Finelli first saw the plaintiff on December 7, 1998, on referral from the physician who treated the plaintiff's work-related injury at the hospital. Dr. Finelli reviewed the plaintiff's MRI, which showed a very large extruded disc at the L-5, S-1 level on the left side. Dr. Finelli also noted the plaintiff had weakness and a positive straight leg raise. Surgery was recommended, and Dr. Finelli advised the plaintiff about the risk of pain syndrome as a post-surgical complication whenever weakness is present pre-operatively. On December 21, 1998, Dr. Finelli performed a laminectomy and removed a large free fragment of disc material that was compressing the nerve root on the plaintiff's left side. When the plaintiff's condition failed to improve after surgery, Dr. Finelli referred the plaintiff to a pain management specialist. Dr. Finelli referred the plaintiff for the February 23, 1999, Functional Capacity Evaluation, which showed the plaintiff capable of sedentary work; he then assigned the plaintiff a 12 percent whole body impairment rating. Dr. Finelli stated in his deposition testimony that he traditionally adopts the findings of the Functional Capacity Evaluation. Dr. Finelli last saw the plaintiff in March of 1999. He was no longer treating the plaintiff when the second Functional Capacity Evaluation, which showed the plaintiff incapable of even sedentary work, was performed. Dr. Finelli was made -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Jerri S. Bryant, Chancellor |
Knox County | Workers Compensation Panel | 12/11/01 | |
| Johnny Jenkins v. Kemper Insurance Co.
E2001-00154-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 trial court found the plaintiff sustained an 8 percent permanent partial disability to his right leg as a result of his knee injury. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, J. and ROGER E. THAYER, SP. J., joined. Clint Woodfin, Knoxville, Tennessee, for the appellant, Kemper Insurance Company. Bruce D. Fox, Clinton, Tennessee, for the appellee, Johnny Jenkins. MEMORANDUM OPINION The plaintiff, age 39 at the time of trial, has a high school diploma and a work history as a skilled construction laborer. He has done electrical work, but has no formal training or certification as an electrician. The plaintiff was injured on October 24, 1998, while working for Solutions to Environmental Problems, the defendant's insured. The plaintiff was sealing drain lines with concrete at Center Hill dam when he an another worker attempted to move a large rock. While moving the rock the plaintiff felt a pop in his right knee followed by a "warm" sensation. By the next day, the plaintiff could not walk and sought medical treatment. Eventually he required several reconstructive knee surgeries and physical therapy; he has not been able to return to work since the injury. Medical Evidence Dr. Clifford Posman, an orthopedic surgeon initially treated the plaintiff. Physical therapy and other conservative treatment failed to improve the plaintiff's condition, so on April 6, 1999, Dr. Posman performed surgery on the plaintiff's right knee. When the plaintiff continued to experience pain, Dr. Posman referred him to Dr. Michael MacKay, another orthopedic surgeon in the same practice group. Dr. MacKay ordered a follow-up MRI, which revealed a torn meniscus in the plaintiff's right knee. On September 8, 1999, Dr. MacKay performed surgery to repair the tear. The plaintiff later underwent a third surgery as well as a second round of physical therapy before being placed at maximum medical improvement on March 28, 2. Dr. MacKay recommended a cane as needed and gave the plaintiff a knee brace, which the plaintiff testified he uses daily. Dr. MacKay testified the plaintiff could not return to his previous employment in part because he could not climb ladders. Before his deposition, Dr. MacKay assessed a 17 percent impairment based on the plaintiff's knee injury. However, during cross-examination while responding to questions from the defendant's counsel, Dr. MacKay testified 1 percent might be more appropriate. The trial court found the plaintiff had sustained 8 percent disability to his right leg as a result of the knee injury. We affirm the judgment of the trial court. Discussion 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 findings, 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 court in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The defendant presents two issues in this appeal. First, the defendant argues the trial court erred in failing to consider the 1 percent impairment rating discussed during Dr. MacKay's deposition. We find no error with respect to this issue and resolve the question in favor of the plaintiff. Dr. MacKayassessed the plaintiff's 17 percent impairment rating using Table 36 of the fourth edition of the AMA Guidelines. While cross-examining Dr. MacKay, the defendant's counsel quoted from the text preceding Table 36 and questioned Dr. MacKay about the table vis-_-vis the 17 percent impairment rating. Dr. MacKay agreed that 1 percent might be more appropriate. The defendant's second argument is that the trial court erred by failing to fully consider the plaintiff's age, education, work experience, skills and training. The defendant's contention is -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:James B. Scott, Jr., Judge |
Knox County | Workers Compensation Panel | 12/07/01 | |
| Lynette Sangster v. Mtd Products, Inc.
W2000-03019-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 contends the evidence preponderates against the trial court's finding that the employee is permanently disabled. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Jeffrey P. Boyd, Jackson, Tennessee, for the appellant, MTD Products, Inc. Sherry M. Percival, Jackson, Tennessee, for the appellee, Lynette Sangster MEMORANDUM OPINION The employee or claimant, Lynette Sangster, is 45 years old and a high school graduate who has worked for the employer, MTD, for almost 2 years. MTD assembles yard and garden tractors. On February 15, 1999, the claimant was sitting at her desk when a co-worker accidentally drove a tractor into the back of her chair, pinning her to her desk. She was immediately taken to an emergency room, where she received first aid for a hematoma and was released. When the hematoma did not resolve itself, she was referred to an orthopedic surgeon, Dr. David Johnson. Dr. Johnson treated her conservatively at first but, when the hematoma, which Dr. Johnson defined as a collection of blood, did not resolve, he treated it surgically. The claimant has returned to work but continues to have complaints of debilitating pain and stiffness. In his deposition, Dr. Johnson opined that the claimant would not be permanently impaired. Her attorney referred her to Dr. Joseph Boals for examination and evaluation. Dr. Boals saw her on January 4, 2, at which time she was still having symptoms. Dr. Boals, who also testified by deposition, opined that she would retain a permanent medical impairment of 5 percent to the whole body, using AMA guidelines. The trial court awarded, inter alia, permanent partial disability benefits based on two and one- half times that medical impairment rating. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The extent of an injured worker's vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 456 (Tenn. 1999). The appellant argues there is no competent expert medical evidence of permanency, as required by Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 458 (Tenn. 1988), because the AMA guidelines do not provide a table for calculating Ms. Sangster's permanent impairment. The deposition of Dr. Boals is clear that, in his opinion, the claimant is permanently impaired, whether the guidelines provide a table or not. In such a case, a trial court may award permanent disability benefits if there is supporting lay proof, for a medical or anatomic impairment rating is not always indispensable to a trial court's finding of a permanent vocational impairment. Hill v. Royal Ins. Co., 937 S.W.2d 873, 876 (Tenn. 1996). It is equally clear from the lay testimony that the claimant is restricted in her ability to work and earn an income. Moreover, as the claimant argues, it is within the discretion of the trial judge to conclude that the opinion of certain experts should be accepted over that of other experts and that it contains the more probable explanation. Johnson v. Midwesco, Inc., 81 S.W.2d 84, 86 (Tenn. 199). Upon further review, the decision of the trial court stands. Costs are taxed to the appellant. ___________________________________ JOE C. LOSER, JR. -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:George R. Ellis, Chancellor |
Haywood County | Workers Compensation Panel | 12/06/01 | |
| Billy L. Seiver v. Plumbmaster, Inc.,
M2000-00514-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 case, the employer and its insurer contend the claim is barred by Tenn. Code Ann. _ 5-6-23, a one-year statute of limitation. The employee contends the award of permanent partial disability benefits based on 25 percent to the body as a whole is inadequate. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and HAMILTON V. GAYDEN, JR., SP. J., joined. Kenneth M. Switzer, Nashville, Tennessee, for the appellants, Plumbmaster, Inc. and Cigna Insurance Company. Joe M. Haynes and Russell E. Freeman, Goodlettesville, Tennessee, for the appellee, Billy L. Seiver. MEMORANDUM OPINION The employee or claimant, Seiver, age 65 and a high school graduate with experience in sales, was involved in a work-related car wreck on October 16, 1995, but did not file this civil action until May 7, 1997. The approved physician, Dr. Jack Miller, told the employer's insurer his condition was not related to the car wreck, which the insurer's representative told the claimant. The trial court found, based on the testimony of the claimant, which the trial court accredited, that the claimant did not know his back injury was work related until July 1997, when he learned it from Dr. Vaughan Allen. 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). An action by an employee to recover benefits for an accidental injury, other than an occupational disease, must be commenced within one year after the occurrence of the injury. Tenn. Code Ann. _ 5-6-224(1). However, the running of the statute of limitations is suspended until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained. It is the date on which the employee's disability manifests itself to a person of reasonable diligence - not the date of accident - which triggers the running of the statute of limitations for an accidental injury. See Hibner v. St. Paul Mercury Ins. Co., 619 S.W.2d 19 (Tenn. 1981) and its progeny. The appellants argue that the Hibner rule is inapplicable because the claimant suspected his injury was work related and had sought the advice of counsel within two months after the occurrence of the injury. It is settled law in this state that the causal connection required for a worker's compensation claim to be compensable may only be established by competent expert medical opinion. The only competent expert medical opinion the claimant and his attorney had until July 1997 was the opinion of Dr. Miller that the injury was not work related. The trial court, applying the reasonable care and diligence rule and accrediting the testimony of the claimant, found the beginning date for the running of the statute of limitation to be July 1997, when Dr. Allen informed the claimant his injury was work related. The preponderance of the evidence is not otherwise. We also hold that the retention of counsel does not trigger the running of the statute of limitation. Moreover, we find nothing in the law which would require an injured worker to initiate an action for benefits within one year from the time the injured worker suspects that an injury is work related. The issue is accordingly resolved in favor of the claimant. The extent of an injured worker's permanent disability is a question of fact based on numerous factors, including the employee's age, skills and training, education, capacity to work, local job opportunities and the extent of the worker's medical or clinical impairment. Tenn. Code Ann. _ 5-6-241(a)(1). From a consideration of those factors, to the extent they were established by the proof, we are not persuaded the evidence preponderates against the trial court's award of permanent partial disability benefits based on 25 percent to the body as a whole. ___________________________________ JOE C. LOSER, JR. -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Ellen Hobbs Lyle, Chancellor |
Davidson County | Workers Compensation Panel | 12/06/01 | |
| Emmett Earl Falcon v. Gaylord Entertainment Company,
M2000-02948-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 case, the employer contends (1) the trial court erred in concluding that the Last Injurious Exposure Rule applied to the facts of this case and (2) the trial court erred in finding the employee was not barred from recovery because of a misrepresentation in the employment application process. In this case, the employee had two successive employers. The trial court found that the employee developed symptoms of bilateral carpal tunnel syndrome while he worked for the first employer but that the employee's condition was aggravated from his work for the second employer. We agree with the trial court that the Last Injurious Exposure Rule applies to this case. As discussed herein, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and HAMILTON V. GAYDEN, JR., SP. J., joined. Byron Davis, Jr. and M. Scot Ogan, Nashville, Tennessee, for the appellant, Wal-Mart Stores, Inc. Richard K. Smith, Nashville, Tennessee, for the appellee, Gaylord Entertainment Company. Steve C. Norris, Nashville, Tennessee, for the appellee, Emmett Earl Falcon. MEMORANDUM OPINION The employee or claimant, Emmett Earl Falcon, is forty-nine years of age. His limited college education pertained specifically to airplane mechanics which requires extensive use of the hands. From June of 1994 to January 9, 1998, the claimant was employed as an oiler engineer on river taxis for Gaylord Entertainment Company. While employed with Gaylord, the claimant began experiencing tingling and numbness in his right arm. On May 22, 1996, Dr. James Wolfe, a neurologist, diagnosed the claimant with a mild generalized peripheral neuropathy. Dr. Wolfe concluded that he could not exclude the possibility of mild left carpal tunnel syndrome. On January 13, 1998, four days following the end of his employment with Gaylord, the claimant was diagnosed with mild to moderate bilateral carpal tunnel syndrome by Dr. Richard Rubinowicz, a neurologist. On March 2, 1998, the claimant began working at the employer-appellant, Wal- Mart Stores, Inc. At Wal-Mart, the claimant worked as a floor maintenance attendant using vibrating floor cleaning machines, specifically butane buffers. At times, he was required to use the buffers for periods as long as four to five hours. The claimant began wearing hand braces in an attempt to alleviate the increased pain of his carpal tunnel condition. He also took unscheduled breaks at Wal- Mart to "rest his hands" and relieve the pain. The claimant was terminated from his job at Wal-Mart on April 28. Dr. Thomas E. Tompkins, an orthopedic surgeon, performed carpal tunnel release surgery on the claimant's hands; his left hand on August 12, 1998, and his right hand on September 2, 1998. On October 23, 1998, Dr. Tompkins estimated a five percent permanent impairment in each hand. Dr. Tompkins released the claimant from medical treatment with instructions to avoid repetitive forceful gripping for three months. On February 23, 1999, Dr. David W. Gaw, an orthopedic surgeon, assigned a ten percent partial permanent impairment to each arm, constituting twelve percent to the body as a whole. Dr. Gaw said that the carpal tunnel syndrome was caused by the claimant's job at Gaylord. However, he acknowledged that if the claimant's symptoms worsened at Wal-Mart, then that would be evidence of an actual aggravation of the condition. Dr. Gaw recommended that the claimant avoid continuous gripping, squeezing or constant manipulation with his hands. During the application process at Wal-Mart, the claimant indicated that he would be able to perform the physical functions of the job, including repetitive hand grasping and firm hand gripping. Wal-Mart did not inquire about the claimant's physical condition. From the above summarized evidence, the trial court found that the claimant's carpal tunnel syndrome was aggravated by his employment at Wal-Mart and dismissed the claim against Gaylord. The trial court awarded medical and disability benefits against the second employer, Wal-Mart. When an employee becomes disabled as a result of an occupational disease, the employer for whom the employee was working when he was last injuriously exposed to the hazards of the disease is responsible for payment of compensation benefits. Tenn. Code Ann. _5-6-34. A similar rule applies when a worker suffers two or more disabling injuries by accident while working for different -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Carol L. Soloman, Judge |
Davidson County | Workers Compensation Panel | 12/04/01 | |
| Dwain Parks v. Royal Insurance Company of America
W2000-02778-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 insurance carrier contends (1) the award of permanent partial disability benefits based on 5 percent to the body as a whole is excessive because the trial judge considered aggravation of a pre-existing mental condition in addition to carpal tunnel syndrome, (2) the trial court erred in awarding any permanent vocational disability benefits, (3) the trial court erred in awarding a psychologist's witness fee as discretionary costs, and (4) the trial court erred in awarding a medical examiner's fee as discretionary costs. The employee insists the award of permanent partial disability benefits is inadequate. As discussed below, the panel has concluded the judgment should be modified with respect to discretionary costs, but otherwise affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Robin H. Rasmussen, Cordova, Tennessee, for the appellant, Royal Insurance Company of America Michael W. Whitaker, Covington, Tennessee, for the appellee, Dwain Parks MEMORANDUM OPINION The employee or claimant, Parks, is a 52 year-old high school graduate. He began working for Ring Can in 1989. He gradually developed bilateral carpal tunnel syndrome from repetitive use of the hands at work. The date of injury is June or July of 1997. When conservative care failed, the treating physician performed carpal tunnel releases and estimated the claimant's permanent impairment at 2 percent to each. The claimant returned to work for the employer on October 15, 1997, but again developed symptoms of carpal tunnel syndrome. He worked regularly until the death of his father. An independent medical examiner, Dr. Janovich, estimated his permanent impairment at 9 percent on the right and 13 percent on the left, considering his post-operative symptoms. A psychiatrist testified that anxiety from the injury permanently aggravated his pre-existing depression. The psychiatrist characterized the claimant's depression as serious and established the required causal connection to the claimant's carpal tunnel syndrome. The claimant's testimony, accredited by the trial court, is that he is significantly limited in his ability to work. A psychologist testified regarding the claimant's limitations, based on personal observations. Upon the above summarized evidence, the trial court awarded permanent partial disability benefits based on 5 percent to the body as a whole. 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). The extent of an injured worker's permanent vocational disability is a question of fact. Collins v. Howmet Corp., 97 S.W.2d 941, 943 (Tenn. 1998). 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 appellant insists the claim, to the extent it is based on aggravation of a preexisting mental condition, should be dismissed for lack of notice. 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. Tenn. Code Ann. _ 5-6-21 (2). 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. Id. 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 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). The reasons for the 3 day statutory notice requirement are (1) to give the employer an opportunity to make an investigation while the facts are accessible, and (2) to enable the employer to provide timely and proper treatment for the injured employee. Id. In determining whether an employee has shown a reasonable excuse for failure to give such notice, courts will consider the following criteria in light of the above reasons for the rule: (1) the -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Martha B. Brasfield, Chancellor |
Tipton County | Workers Compensation Panel | 12/04/01 | |
| Ron M Artin v. Blount County , Tennessee
E2000-01138-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 and contends the trial court erred in finding the employee to be 1 percent disabled because no expert medical proof established permanency of the disability. We sustain the contention of the employer and reverse the award of permanent disability. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Blount County Circuit Court Reversed. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, JR., JUSTICE, and JOHN K. BYERS, SR. J., joined. Michael K. Atkins, Knoxville, Tennessee, for the Appellant Blount County, Tennessee Kevin Shepherd, Maryville, Tennessee, for the Appellee Ron Martin MEMORANDUM OPINION Background Facts Plaintiff, Ron Martin (Martin) was employed by the Blount County Sheriff's Department as a criminal investigator on June 16, 1993. That day, Martin, in the course and scope of his employment, investigated a fire scene at Pope's Plant Farm. There is no 1 indication that Martin had any health problems prior to this time. While investigating the fire scene, Martin became ill. He also found evidence that Malathion and other pesticides were present in the building at the time of the fire. Martin returned to work the next day but went home after becoming sick at work. Martin first sought treatment from his family physician, Dr. Kim Cline. Later, Martin was seen by Dr. Marek Pienkowski, an immunologist. In the course of his treatment, Martin was also seen by Drs. Hargrove, Porter and Warwick, though no proof was submitted regarding either the treatment provided or the opinions formed by these physicians. An independent medical examination was performed by Dr. Arnold Hudson, Jr., a pulmonologist On November 8, 1993, according to Dr. Pienkowski, Martin reached maximum medical improvement. Martin returned to work with the only restriction being that "it is absolutely essential that he avoid all chemical exposure." This prevented Martin from resuming his duties as an arson investigator. For approximately one year, Martin remained with the Blount County Sheriff's department primarily performing clerical duties. From January 1995 through July 1997, Martin worked in various positions with the Blount County Court Clerk's office. Martin was employed by Blount County for almost four years after he reached maximum medical improvement before he was placed on disability retirement. From the date of exposure, Martin complained of joint pain, lethargy, and fatigue. These symptoms caused Martin to be unable to perform the light clerical duties he was assigned upon his return to the Sheriff's Department and resulted in him being placed in the Court Clerk's office. Despite being moved to another position, Martin remained unable to perform the tasks assigned to him. The parties stipulated the June 16, 1993 injury was compensable and agreed upon the appropriate compensation rate. No outstanding medical bills were left unpaid, nor were there any issues regarding the payment or non-payment of temporary total disability benefits. The only issue at trial was whether Martin suffers from a permanent vocational disability. As proof on this issue, the depositions of three physicians, Drs. Cline, Pienkowski, and Hudson, and two vocational experts, Drs. Nadolsky and Caldwell, were submitted, and the testimony of Martin and Dale Gorley, chief of detectives of the Blount County Sheriff's Department was heard. The trial court found that Martin suffers from a 1% total vocational disability. Blount County appeals this finding. Standard of Review The extent of vocational disability is a question of fact to be determined from all of the evidence, including lay and expert testimony. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999); Worthington v. Modine Mfg. Co., 798 S.W.2d 232, 234 2
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:W. Dale Young, Circuit Court Judge |
Blount County | Workers Compensation Panel | 12/03/01 | |
| Steven Ray Norfleet v. J. W. Goad Construction, Inc.,
M2001-00425-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 case, the employer and its insurer contend (1) the action is time barred, (2) the claim is barred by the plaintiff's failure to give timely notice, (3) the award of benefits is excessive, (4) the award of bad faith sanctions is erroneous, and (5) the trial court erred in awarding attorney fees for the collection of unpaid medical expenses. As discussed below, the panel has concluded the award of attorney fees against the employer should be vacated, and the judgment otherwise affirmed.1 Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and HAMILTON V. GAYDEN, JR, SP. J., joined. D. Brett Burrow and Gordon C. Aulgur, Nashville, Tennessee, for the appellants, J. W. Goad Construction, Inc., Sue Goad, Executrix for the estate of Jackie W. Goad, deceased, and Maryland Casualty Company. Thomas R. Meeks and Gregory D. Smith, Clarksville, Tennessee, for the appellee, Steven Ray Norfleet. MEMORANDUM OPINION 1 Because the Ru le 59 motio n has no t been add ressed by the trial c ourt, the appeal may be premature. However, because the injury occurred more than eight years ago, we have elec ted to add ress the m erits of the appeal. This case needs to be finally resolved. This civil action was commenced on October 1, 1996 following voluntary dismissal of a timely filed complaint on August 14, 1995. No issue was raised in the answer to the second complaint as to its timeliness. Following a trial on the merits on July 31, 2, the trial court awarded permanent partial disability benefits based on 63 percent to the body as a whole, discretionary costs, bad faith penalties, temporary total disability benefits and medical expenses. The judgment was filed on October 3, 2. On November 14, 2, the trial court awarded attorney fees of $19,5. pursuant to 5-6-24(b)(2).2 Although the defendant had filed a timely Tenn. R. Civ. P. 59 motion, the award of attorney fees appears from the record to be unrelated to that motion. On February 26, 21, the trial court ordered the appellants to provide medical treatment for the appellee, pending appeal. So did a Special Workers' Compensation Appeals Panel. At the time of the trial, the injured employee or claimant was 45 years old. He was injured on April 1, 1993, when he fell from a scaffold. The treating physician, Dr. Steven McLaughlin treated him for multiple injuries, including an elbow injury, a shoulder injury and carpal tunnel syndrome, all causally related to the fall, as well as a knee injury occurring during rehabilitation. Permanent impairment ratings of 5 percent to the elbow, 1 percent to the shoulder and 1 percent to the wrist were estimated by the doctor. The claimant has not returned to work for the same employer. Relying largely on the testimony of Dr. McLaughlin, the trial court awarded, inter alia, permanent partial disability benefits based on 63 percent to the body as a whole and temporary total disability benefits for 51 2/7th weeks. 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. 2 (2) In addition to any attorney fees provided for pursuant to the provisions of _ 5 -6-22 6, a co urt ma y award attorney fees and reasonable costs to include reaso nable and nece ssary court repo rter expenses a nd exp ert witness fees for depo sitions and trials incurred when the employer fails to furnish appropriate med ical, surgica l and dental treatment or care, medicine, medical and surgical supplies, crutches, artificial me mbe rs and other a ppa ratus to an employee provided for pursuant to a settlement or judgment under this chapter. -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Carol Catalano, Chancellor |
Montgomery County | Workers Compensation Panel | 12/03/01 | |
| Diane Crawford v. Crotty-Tenn, Inc
M2001-00715-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. The employer in this case had two insurance carriers. The employer had one insurer at the time the employee first reported her gradual injury and temporarily left work due to her carpal tunnel syndrome. The employer then changed insurance carriers and the second insurer's coverage extended through the time the employee continued to work and permanently ended her employment. The trial court held the first insurer liable for permanent partial disability benefits due to the fact that the employee's first report of work injury constituted a definite date at which the employee knew the nature and the cause of her injury. The first insurer appeals and argues that the second insurer should be liable because the employee continued to work during the second insurer's coverage. As discussed below, the Panel affirms the result of the trial court, but on different grounds. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Chancery Court Affirmed. GAYDEN, Sp. J., in which Drowota, J., and Loser, Sp. J., joined. Hal W. Wilkins, Leitner, Williams, Dooley & Napolitan, Nashville, TN for the defendant- appellant Crotty-Tenn, Inc. (AIG). Robert R. Davies, Davies, Humphreys & Evans, Nashville, TN for the defendant- appellee Crotty-Tenn, Inc. (EBI). William E. Halfacre, III, Madewell, Jared, Halfacre & Williams, Cookeville, TN for the plaintiff-appellee Diane Crawford. 1 MEMORANDUM OPINION On January 2, 1995, the employee/appellee Diane Crawford began to work as a riveter for Crotty-Tenn, Inc.. As a riveter, Ms. Crawford held boards together while forcing metal clips through them to make automotive sun-visors. Her job involved continuous gripping and squeezing with her hands. In the summer of 1996, Ms. Crawford began to feel pain and numbness in her wrists and hands radiating up her arms and into her shoulders and neck. On August 7, 1996, Ms. Crawford's symptoms worsened to the point at which she was forced to seek medical treatment. Ms. Crawford filed a first report of work injury with Crotty-Tenn and saw Dr. Nancy Blevins, who prescribed medication for Ms. Crawford and suspended her from work for six weeks. AIG, the defendant-appellant in this action and Crotty-Tenn's workers' compensation carrier at the time, paid for Ms. Crawford's temporary total disability benefits. After her six weeks of leave, Ms. Crawford returned to work. Ms. Crawford subsequently saw Dr. Anthony Carter and Dr. Sam Barnes in November and December of 1996 and Dr. Jim Talmage in June of 1997. Ms. Crawford was moved to a light-duty job in November of 1996. Ms. Crawford also saw various other doctors regarding her injury including Dr. David Gaw. Ms. Crawford reported feeling increasing pain and was placed on permanent restrictions. Dr. Talmage stated that the most effective treatment would be for Ms. Crawford to change vocations. However, Ms. Crawford did not stop her work due to her injury until she left her employment with Crotty-Tenn two years later in 1998. On April 1, 1997, Crotty-Tenn changed its workers' compensation carrier from AIG to EBI. On August 26, 1998, after Crotty-Tenn lost a major contract, Ms. Crawford volunteered to be laid off due in part to her injury and has not since returned to work at Crotty-Tenn. On May 4, 2, Dr. Gaw testified that the additional squeezing and gripping from her continued work after 1996 could have aggravated Ms. Crawford's injury based on an independent medical evaluation that he performed on Ms. Crawford on April 14, 1998. However, Dr. Gaw could not testify that Ms. Crawford experienced an anatomical change from her continued work. The trial court found the defendant/appellant AIG, the employer's first insurer, liable for benefits to Ms. Crawford because Ms. Crawford had filed her first report of injury during its coverage. The trial court stated that when the employee knew the nature and cause of the injury on a definite date, the liability of an insurance carrier would depend on that date. The trial court awarded Ms. Crawford permanent partial disability benefits in the amount of $22,8.96 based on a vocational disability rating of 36% to the body as a whole. Review on appeal is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings of fact, unless the preponderance of the evidence 2
Authoring Judge: Gayden, Sp. J.
Originating Judge:Hon. C. K. Smith, Judge |
Smith County | Workers Compensation Panel | 11/19/01 | |
| Lisa Annette Barlar v. Johnson Control
M2000-02423-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 determining whether the employee's asthma was an occupational disease, the trial court considered conflicting medical testimony, the employee's workplace conditions, and the employee's history of smoking. The employer contends the trial court erred (1) when it held that the plaintiff's asthma arose out of and in the scope of her employment, (2) in finding that the plaintiff's asthma is permanent, and (3) in awarding the employee 45% permanent partial disability to the whole body. The Panel has concluded that the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Circuit Court Affirmed. GAYDEN, SP. J., in which DROWOTA, J., and LOSER, SP. J. joined. Joseph Ward Henry, Jr., Henry, Henry & Speer, Pulaski, TN, for the appellant, Johnson Control. Richard Thomas Matthews, Matthews & Tisher, Columbia, TN, for the appellee, Lisa Annette Barlar. MEMORANDUM OPINION The employee/appellee, Lisa Annette Barlar, was employed with Johnson Control, from 1991 until February 21. Ms. Barlar is thirty-five years old, has a ninth grade education, has not obtained a GED, and has no special training or skills. She also smoked approximately a pack and a half of cigarettes a day from the ages of fifteen to thirty-two, quitting in November 1998. Her positions with Johnson Control involved various aspects of the production of foam automobile seats and headrests, which exposed her to foam dust, chemicals, and fumes. Ms. Barlar began experiencing respiratory problems in 1994 while using a "hot knife" to cut through 1 fabric covering the seats. In that process, black smoke was emitted making it difficult for her to breathe and causing her heart to race. Ms. Barlar was hospitalized for approximately one week and missed work for about three months due to this incident. After 1994, she continually experienced difficulty breathing while exposed to the foam dust, chemicals, and fumes at work and was hospitalized on three other occasions; the last hospitalization leading to her decision to stop working. The trial court found that Ms. Barlar had a compensable occupational disease with a forty-five percent permanent partial disability. Appellate review is de novo upon the record of the trial court but there is 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). Pursuant to Tenn. Code Ann. _ 5-6-31, an occupational disease is a disease that "arises out of and in the course of employment." The causation of a disease must be established by expert medical testimony in all but the most obvious cases. Thomas v. Aetna Life & Cas. Ins. Co., 812 S.W.2d 278, 282 (Tenn. 1991). In this case, however, there is conflicting medical testimony about the existence and cause of the employee's disease. Prior to her employment, Ms. Barlar was in good health with no respiratory or pulmonary problems. She began visiting Drs. Haney and Heflin for her respiratory problems in 1994 after her first hospitalization. In 1998, Dr. Heflin prescribed medications and an inhaler for a diagnosis of "asthmatic bronchitis secondary to smoking and pollution exposure." He stated that her condition probably had multiple causes including her workplace and her smoking. In 1999, Dr. Haney formally diagnosed occupational asthma and opined that her condition "more probably than not" arose out of her employment. He gave her permanent restrictions of working in a clean air environment. In 2, however, Ms. Barlar saw Dr. Bluhm at the request of Johnson Control. Dr. Bluhm examined Ms. Barlar, reviewed her medical records, and stated that she had no evidence of lung disease and did not have occupational asthma even though she may have some form of asthma. Trial judges have discretion in the weight in which they consider conflicting medical testimony. Orman v. Williams-Sonoma, Inc., 83 S.W.2d 672, 676 (Tenn. 1996). In doing so, the judge is to consider the "qualifications of the experts, the circumstances of their examination, the information available to them, and the evaluation of the importance of that information by other experts." Id. Absolute medical certainty is not required for an employee to establish medical causation. Tindall v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987). Additionally, any reasonable doubt as to causation is to be construed in favor of the employee. Hall v. Auburntown Indus., 684 S.W.2d 614, 617 (Tenn. 1985). In this case, the trial judge gave more weight to the testimony of Dr. Heflin, which is supported by the fact that he examined the employee on several occasions and had knowledge of the chemicals and pollutants present in the production of foam seats. Furthermore, the Material Safety Data Sheets indicate that Ms. Barlar was exposed to substances during her employment, such as Aromatic Isocyanate, that can cause asthma. In light of these reasons and in the presumption of correctness of the trial court, we affirm the finding that the employee's disease is compensable. The Panel also affirms the trial court's finding of forty-five percent permanent partial disability to the body as a whole. Although, as the employer indicates, Ms. Barlar's condition 2
Authoring Judge: Gayden, Sp. J.
Originating Judge:Hon. Stella L. Hargrove, Judge |
Johnson County | Workers Compensation Panel | 11/19/01 | |
| David Kee v. Unimin Corporation
W2000-02673-WC-R3-CV
This workers' compensation appeal has been referred to theSpecial 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 an action by an injured employee to recover workers' compensation benefits for three separate claimed injuries by accident occurring at different times. After a trial on the merits, the trial judge dismissed the claim based on an arm injury for insufficient proof that it occurred at work, but awarded, inter alia, permanent partial disability benefits based on 4 percent to the body as a whole for the injuries to the neck and back. The employer has appealed contending (1) the evidence preponderates against the trial court's finding that the employee's claimed neck injury is compensable and (2) the trial court erred in awarding permanent disability benefits for the neck injury and for an admittedly compensable low back injury. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Richard C. Manglesdorf, Jr., and Thomas J. Dement, II, Nashville, Tennessee, for the appellant, Unimin Corporation Terry J. Leonard, Camden, Tennessee, for the appellee, David Kee MEMORANDUM OPINION The employee or claimant, David Kee, is 59 years old with a high school education and no vocational training. He worked for Genesco for one year after graduating from high school and worked for Unimin, formerly Hardy Sand Company, for 37 years, advancing to the position of shift production and shipping supervisor until he was terminated on February 24, 1999. One of the claimed injuries is to the left arm. It appears from the record, as the trial court found, that the arm injury was an old one, not related to work, although a manifestation of it occured at work on or about April 21, 1998. The testimony of Dr. Lowell F. Stonecipher clearly supports that finding. It also appears from the record that the claim should fail for lack of written notice. No issue is raised in the appellee's brief concerning the trial court's disallowance of benefits for the arm injury. As Dr. Joseph C. Boals, III, understated in his deposition, theclaimant's history is convoluted and confusing. It appears from the record that an injury occurred at work on April 28, 1998, when the claimant slipped on oil and fell,, injuring his lower back. The employer does not contest the compensability of the back injury, but insists it did not cause any permanent disability. The treating physician, Dr. John Neblett, diagnosed acute lumbar sprain with nerveroot irritation at L5-S1 on the left side. The injury was superimposed on preexisting degenerative arthritis. Conservative care was provided by Dr. Neblett. Dr. Boals, to whom the claimant was referred by his attorney for evaluation, estimated his permanent impairment at 1 percent to the whole body. The claimant testified that he fell down a flight of stairs at work on Feb ruary 22, 1999, landing on his neck and injuring it. There is conflicting testimony as to whether the employer had notice of it. A supervisor at Unimin, David Hayes, was nearby when it happened. Hayes testified that he heard a noise and saw the claimant picking himselfup. When he asked the claimant if he was hurt, the claimant said something, then walked away, according to the testimony of Hayes. The claimant believes the supervisor saw more than he is telling. No written report was made. Dr. Neblett diagnosed acute neck sprain and exacerbation of preexisting arthritis. Dr. Boals estimated the claimant's permanent impairment for all three injuries at 33 percent. The trial judge found the employee to be a credible witness and awarded permanent partial disability benefits on the basis of 4 percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri- Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The appellant first argues the neck injury did not happen. The argument overlooks the -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Julian P. Guinn, Judge |
Benton County | Workers Compensation Panel | 11/09/01 | |
| Terry Lee Matthews v. Larry Outland,
M1998-00578-WC-R3-CV
This workers' compensation appeal has been referred to theSpecial 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 plaintiff, a logger employed by L&L Logging Co. who was injured when a tree fell on him, appeals the judgment of the trial court in which the trial court found: 1) that Waverly Wood Products, a sawmill, was not a statutory employer under Tennessee Code Annotated _ 5-6-113 and 2) the plaintiff had sustained a 1% permanent partial disability to the body as a whole. 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. 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 ADOLPHO A. BIRCH, JR.,J., and JOE C. LOSER, JR., SP.J., joined. Joe Bednarz and Joe Bednarz, Jr., Nashville, Tennessee, for the appellant Terry Lee Matthews. Blakeley D. Matthews and Kristen Murphy Anderson, Nashville, Tennessee, for the appellee Waverly Wood Products, Inc. MEMORANDUM OPINION Mr. Terry Lee Matthews was 34 years old at the time of trial and had an eleventh grade education. His employment history includes gunneling boats and working in fast food restaurants and construction. In the late 198's to early 199's, Mr. Matthews went to work for Mr. Larry Outland and L&L Logging Company. His job duties included cutting logs to specified lengths, working on equipment, picking up parts and doing other errands as needed for Mr. Outland. Mr. Outland had had a long history of business dealings with Mr. James Richardson. Mr. Richardson, owner of Waverly Stave Co. and Richardson Lumber Co., had been in the lumber business for many years. In August 1992, Todd Richardson, son of James Richardson, started Waverly Wood Products, Inc., a sawmill, with a loan from Richardson Lumber Co. Waverly Wood Products also leased its operating equipment from Richardson Lumber Co. Todd Richardson was the president and sole shareholder of the corporation and James Richardson was employed as secretary-treasurer receiving an annual salary of $18,. Waverly Wood Products bought logs from more than 2 different vendors. In 1993, Richardson Lumber Co. bought the property where the accident occurred and later sold it to a Jack and Margaret Johnson for $119,1 while retaining the timber rights. Richardson Lumber Co. thereafter sold the timber rights to L&L Logging Co. and LarryOutland for $44,556.6 on December 7, 1993. On December 31, 1993, L&L Logging and Mr. Outland, individually, purchased logging equipment from Richardson Logging Company for $77, via a purchase money promissory note in favor of Waverly Wood Products, Inc., and a corresponding security interest in said equipment to Richardson Lumber Co. A sub-clause in each of the financing and security documents stated that Larry Outland and L&L Logging would sell logs to Waverly Wood and repayment amounts would be calculated at $2.5 per ton of logs and pulpwood with a minimum payment of $2, per month. The subclause also provided that if such deliveries ceased, the full loan amount would be due within 3 days of the date of the last delivery. According to Mr. Outland, payment was taken out of each of his deliveries to WaverlyWood Products. It was his understanding that so long as he paid $2, per month he could sell the wood to another company and make the payments. He did not sell logs to any other company besides Waverly Wood Products in 1994. Mr. Outland saw Mr. Richardson as a creditor. Mr. Outland determined where to cut the timber and what type of trees would be cut. He had exclusive control over the hiring and firing of his employees.2 Mr. Outland provided all the equipment and set his employees' wages. He also determined to whom to sell his logs and pulpwood based upon which sawmill was "paying the most." 1The contract provided that Richardson Lumber Co. would convey title to the property via general warranty deed upon payment in full of the purchase price to be paid in monthly installments of $894.1. 2 He had fired Mr. Matthews in the past for marijuana use on the job. He later re-hired him after Mr. Matthews informed him he had stopped using marijuana. -2-
Authoring Judge: James L. Weatherford, Sr.J.
Originating Judge:Robert E. Burch, Judge |
Humphreys County | Workers Compensation Panel | 11/07/01 | |
| Janie Lou Cobb v. Henry I. Siegel, Inc.
W2000-02656-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 the evidence preponderates against the trial court's award of permanent partial disability benefits based on 42 percent to the body as a whole. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e)(3) (2) Appeal as of Right; Judgment of the Circuit Court Affirmed. JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and ROBERT L. CHILDERS, SP. J., joined. Jill A. Hanson, Nashville, Tennessee, for the appellant, Henry I. Siegel Company. Donald E. Parish, Huntingdon, Tennessee, for the appellee, Janie Lou Cobb. MEMORANDUM OPINION The employee or claimant, Cobb, is 57 years old with a high school education, but a low intelligence level, and no vocational training. She has spent her working career in production work and worked for the employer, Henry I. Siegel Company, for 33 years. It is undisputed she suffered a compensable low back injury on March 22, 1999. Because of the disability from that injury, she has not worked since the employer closed its factory on December 17, 1999. Following her injury, the claimant chose Dr. Claiborne Christian. Dr. Christian provided conservative care and ordered a magnetic resonance imaging scan (MRI). The MRI revealed a herniated nucleus pulposus on the left side. Dr. Christian estimated her permanent impairment at none, but referred her to a neurosurgeon, Dr. John Brophy. Dr. Brophy agreed with the diagnosis and produced a written report, but expressed no opinion as to the extent of the claimant's permanent impairment. She was referred to Dr. Robert Barnett, for examination and evaluation. Dr. Barnett estimated her permanent medical impairment from the injury to be 7 percent, using AMA guidelines. A vocational expert estimated her vocational impairment to be 95 percent, considering, among other things, the claimant's physical limitations.1 The claimant testified that she is unable to work. The trial judge, after making specific findings of fact as required byTenn. Code Ann. _ 5-6- 241, awarded permanent partial disability benefits based on six times the medical impairment rating or 42 percent. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 177 (Tenn. 1999). The extent of an injured worker's vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 456 (Tenn. 1999). The appellant argues the medical evidence preponderates against the trial court's finding of permanency because he should have accepted the testimony of the treating physician, Dr. Christian. When the medical testimony differs, the trial judge must choose which view to believe. In doing so, he is allowed, among other things, to consider the qualifications of the experts, the circumstances of their examination, the information available to them, and the evaluation of the importance of that information by other experts. Orman v. Williams Sonoma, Inc., 83 S.W.2d 672, 676 (Tenn. 1991). Moreover, it is within the discretion of the trial judge to conclude that the opinion of certain experts should be accepted over that of other experts and that it contains the more probable explanation. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 676-7 (Tenn. 1983). From our independent examination of the record, we are not persuaded the trial court abused its discretion by accepting the opinion of Dr. Barnett. The appellant argues that the opinion of the vocational expert should have been ignored because it is based in part on information provided by the claimant as to her limitations. Notably, the claimant gave similar testimony to the trial judge, who expressly found her to be a truthful person. Trial courts have broad discretion to determine whether to accept or reject the opinion of a proffered expert. We find no abuse of that discretion in this case. The appellant argues the award is excessive because there is no medical evidence of 1 The claimant testified about her limitations, but none of the doctor s specifically prescribed any restrictions. -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:C. Creed Mcginley, Judge |
Henry County | Workers Compensation Panel | 10/24/01 | |
| Edwin H. Madewell v. The Travelers Insurance Company
M2000-01793-WC-R3-CV
This workers' compensation appeal has been referredto the Special Workers' CompensationAppeals 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 insists (1) the trial court erred in accepting the opinion of Dr. Ray Hester over that of Dr. Roger Zwemer as to the extent of the employee's permanent medical impairment, (2) the trial court erred in awarding permanent partial disability benefits in an amount that exceeds two and one- half times the medical impairment rating, (3) the trial court erred in awarding temporary total disability benefits, (4) the award of permanent partial disability benefits is excessive, (5) the defendant is entitled to a setoff, and (6) the trial court erred in commuting permanent partial disability benefits to a lump sum. As discussed below, the panel has concluded the award of temporary total disability benefits and the lump sum award should be modified, and a setoff allowed for payments made under an employer-funded disability plan, but the judgment otherwise affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Robert J. Uhorchuk, Chattanooga, Tennessee, for the appellant, The Travelers Insurance Company. Robert S. Peters, Winchester, Tennessee, for the appellee, Edwin H. Madewell. MEMORANDUM OPINION The employee or claimant, Madewell, is 6 years old with a high school education and some college credits and electronics training. He worked for his employer as an instrument technician at Arnold Air Force Base from April 11, 1966 until 1999. He has computer skills and knowledge of both mechanical and electronic blueprints and can build and maintain instruments and machinery. His work required some physical activities. In August of 1998, the claimant felt a shooting pain in his left leg while at work. When the employer provided a list of physicians, he saw Dr. Zwemer and lost several days of work. Dr. Zwemer provided conservative care for several months and, finding no objective evidence of injury, estimated his permanent impairment at 5 percent to the body and returned the claimant to work. Upon returning to work, the pain recurred and he saw Dr. Bills, who ordered magnetic resonance imaging and referred him to Dr. Hester, a neurosurgeon. Dr. Hester diagnosed a disc herniation and assessed his permanent impairment at 1 percent to the whole person. Dr. Hester also prescribed permanent restrictions from bending from the waist while standing and from working with his arms out front. The restrictions prohibit him from working as an instrument technician. When he was unable to return to his job, the employer offered and the claimant accepted early retirement. The claimant testified at trial that he continues to suffer disabling pain and is unable to participate in hobbies or perform his former duties. The trial court awarded, inter alia, permanent partial disability benefits based on 4 percent to the body as a whole. 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:L. Craig Johnson, Chancellor |
Coffee County | Workers Compensation Panel | 10/24/01 | |
| Kary Ray Frazier v. Bridgestone/Firestone, Inc.,
M2000-02126-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 case, the employer and its insurer contend (1) the trial court erred by referring the case to a special master for trial of all issues raised by the pleadings, (2) the evidence preponderates against the special master's finding, adopted by the trial court, that the injured employee has a permanent medical impairment of 13 percent to the body as a whole, and (3) the evidence preponderates against the trial court's award of permanent partial disability benefits based on 32.5 percent to the body as a whole. As discussed below, the panel has concluded the award of permanent partial disability benefits should be reduced to one based on 2 percent to the body as a whole. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed as Modified. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and HAMILTON V. GAYDEN, JR., SP. J., joined. Mary B. Little and B. Timothy Pirtle, McMinnville, Tennessee, for the appellants, Bridgestone/Firestone and Insurance Company of the State of Pennsylvania. William Joseph Butler and Frank D. Farrar, Lafayette, Tennessee, for the appellee, Kary RayFrazier. MEMORANDUM OPINION The employee or claimant, Kary Ray Frazier, is 34 years old and a high school graduate with experience as a laborer. On March 2, 1997, while working for the employer, Bridgestone/Firestone, he felt a sudden pain in his left shoulder. At the time of the injury, he was reaching out at shoulder level to spin heavy tires to position them properly for branding. He was surgically treated by Dr. David Bratton and Dr. Wills Oglesby, but has seen a number of doctors for treatment or evaluation. Although Dr. Bratton released a ligament and removed a bone and bursa from the injured shoulder, he found no basis for a permanent impairment rating, based on passive range of motion testing. He conceded that he did not use AMA guidelines. Dr. Oglesby later performed open reconstructive surgery to relieve pain and looseness in the injured shoulder. Dr. Oglesby assigned an impairment rating of 6 percent to the body as a whole, based on loss of motion, also using a passive test. He conceded the AMA guidelines favor active range of motion testing, where the patient moves the limb as far as his condition will allow. In passive testing, the doctor moves the limb. Dr. Calvin Robinson Dyer, another orthopedic surgeon, evaluated the claimant. Dr. Dyer estimated the claimant's permanent impairment at 16.2 percent to the body as a whole and opined the injury was causally related to the work the claimant was performing when he felt the sudden pain. Dr. Dyer also prescribed permanent restrictions on the use of the injured shoulder. Dr. Dyer `s opinion was discredited on cross examination as inconsistent with the approved guidelines. Dr. Sammy Mac Smith evaluated the claimant and estimated his permanent medical impairment at 12 percent to the whole body. Dr. Smith's rating was based on AMA guidelines. Dr. James Talmadge, to whom the claimant was also referred for the purpose of evaluation, assigned a permanent whole person impairment rating of 4 percent, also using AMA guidelines. The employee has returned to work at the same or greater wage. Mr. Frazier initiated this civil action to recover workers' compensation benefits for a work- related injury. The defendants answered by denying all the material allegations of the complaint. After hearing and ruling on preliminary motions, the trial court, on the day of trial, referred the case to a special master, Richard McGregor, for the purpose of taking proof and submitting findings of fact and conclusions of law as to all issues. The special master conducted hearings and made findings and conclusions. The trial court, after careful consideration of the record, adopted the findings and conclusions of the special master awarding permanent partial disability benefits based on 32.5 percent to the body as a whole. There is a dispute as to whether the employer and its insurer objected to the reference to a special master. The employer insists the reference of the case to a special master was error because of the holding in Ferrell v. Cigna Property & Casualty Ins. Co., 33 S.W.3d 731 (Tenn. 2), wherein the Supreme Court held it was improper to create a "standing order appointing a clerk and master as special/substitute judge to hear an entire class of cases." Ferrell, at 739. By footnote, the Ferrell court said cases should be referred to a special master on a case by case basis. That case did not address the appellants' next insistence, that the reference in the present case was not proper because it referred the main issues in controversy to the special master. By Tenn. R. Civ. P. 53, a court may submit any matter to a special master. Case law, however, both before and after the 1971 adoption of Rule 53, supports the employer's contention that -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Charles D. Haston, Judge |
Warren County | Workers Compensation Panel | 10/19/01 | |
| Louana Klopfenstein v. Windwood Health Rehab Ctr.,
E2000-02706-WC-R3-CV
This workers' compensation appeal has been referred to the SpecialWorkers' 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. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER J., and WILLIAM H. INMAN, SR. J., joined. David M. Sanders, Knoxville, Tennessee, for the appellants, Windwood Health Rehab Ctr., et al. Roger Ridenour, Knoxville, Tennessee, for the appellee, Louana Klopfenstein. 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 findings, 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). Discussion The trial court found the plaintiff had suffered a seventy percent permanent partial disability to the right leg and held that Windwood Health Rehab Center was liable for compensation to the plaintiff. The defendant Windwood Health Rehab Center says the trial court erred in not finding the defendant Clinch River Home Health Inc. liable under the last injurious injury rule. We affirm the judgment of the trial court Facts On January 2, 1998, the plaintiff was working for the defendant Windwood when she fell in a shower while assisting a patient and suffered an injury to her right knee. Windwood did not contest the compensability of the injury. Windwood furnished medical care to the plaintiff. She was off from work for a "few weeks," returned to work for a "few weeks" without restriction and left the employment of Windwood after about "two weeks." The plaintiff went to work for the defendant Clinch River in March of 1998. The plaintiff testified that on February 12, 1999, she was giving a patient a bath in the patient's home which required that the patient be placed on a shower chair. According to the plaintiff she heard her knee pop and crack as she was performing this task. The plaintiff testified she went from the patient's home back to Clinch River and reported this incident to Linda Darland, a secretary/receptionist. The plaintiff testified she told Linda Darland that she was at work and her knee began to hurt and swell up. She testified Ms. Darland made a doctor appointment for her. She was treated by Dr. Malagan, who had treated her previously, until he referred her to Dr. Cletus J. McMahon, Jr., an orthopedic surgeon. Ms. Darland testified the plaintiff never told her that she had injured herself while working for Clinch River. She denied making an appointment for the plaintiff with a doctor. Ms. Darland testified the plaintiff would tell her that her knee hurt and that she believed it was caused by an accident at her previous employment. Ms. Darland said the plaintiff never told her she was hurt while working for Clinch River. Joyce Chattin, the director of nursing at Clinch River, testified the plaintiff came to her on February 12, 1999, and brought a note from a doctor that limited the plaintiff to lifting no more than thirty pounds. The plaintiff told Ms. Chattin not to worry that the cause of her problem happened at a place of previous employment. Pamela Sue Obenshain, executive director at Clinch River, testified she talked to the plaintiff after February 12, 1999, and that the plaintiff could not point to any specific incident while working for Clinch River which caused an injury to her right knee. The plaintiff told Ms. Obenshain she thought the work for Clinch River aggravated the previous injury. Medical Evidence Dr. Cletus J. McMahon, Jr. an orthopedic surgeon first saw the plaintiff on February 24, 1999, when she was referred to him by Dr. Malagon. After testing of the plaintiff's right knee, Dr. -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:James B. Scott, Judge |
Knox County | Workers Compensation Panel | 10/18/01 | |
| Donald Mon Son v. United Parcel Services, Inc., and James
E2000-00593-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 trial court award of sixty percent permanent vocational disability benefits. We affirm.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Daryl R. Fansler, Chancellor |
Knox County | Workers Compensation Panel | 10/09/01 | |
| Billy Richard Keith v. Cincinnati Insurance Company,
M2000-02955-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. _ 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer-appellant contends (1) the award of permanent partial disability benefits based on 30 percent to the body as a whole and 20 percent to the leg violates Tenn. Code Ann. _50-6-207(3)(C) and (2) the conditional award of permanent partial disability benefits based on 40 percent to the body as a whole is excessive. As discussed below, the panel has concluded the separate awards to a scheduled member and the body as a whole should be vacated and the conditional award of permanent partial disability benefits based on 40 percent to the body as a whole affirmed.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Larry Ross, Judge |
Warren County | Workers Compensation Panel | 10/09/01 | |
| Martha Fritts v. Bradley Healthcare and
E2000-00822-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 and contends the trial court erred (1) in granting an award because the employee failed to establish causation by medical proof, and (2) in accepting the independent medical examiner's impairment rating. 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 Circuit Court is Affirmed. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, JR., JUSTICE, and JOHN K. BYERS, SR. J., joined. Fred C. Stantum, III, Nashville, Tennessee, for the Appellant Bradley Healthcare & Rehabilitation M. Drew Robinson, Cleveland, Tennessee, for the Appellee Martha Fritts 1 MEMORANDUM OPINION Facts Martha Fritts, a certified nursing assistant, began caring for elderly patients in 1985 and has worked for Bradley Healthcare and Rehabilitation since 199. She testified that she injured her right shoulder on April 3, 1998 while attempting to move a patient. She was treated by Dr. Alan Clifton Odom, who performed arthroscopic surgery upon her right shoulder on December 17, 1998. Dr. Odom testified that she has permanent restrictions on lifting patients and will need assistance with pushing, pulling and lifting patients. Because Dr. Odom does not do impairment ratings, she was referred to Dr. McKinley Snipes Lundy for assignment of a permanent impairment rating. Dr. Lundy assigned a 14 percent permanent impairment to the body as a whole. She returned to work at her pre- injury rate of pay, and continues to perform the pre-injury duties, except she now has help changing patients. Standard of Review 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 findings, 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. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452 456 (Tenn. 1988). Discussion Bradley Healthcare and Rehabilitation contends that the proof failed to establish a causal connection to the employment. Causation and permanency of a work injury must be shown in most cases by expert medical evidence. Tindall v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987). Causation in this case is established through the deposition of McKinley Snipes Lundy, M.D., who wrote: "It is my opinion, based on a reasonable degree of medical certainty, utilizing the AMA Guides to Evaluation of Permanent Impairment, 4th ed. (American Medical Association, Chicago, IL, 1993), that Martha Fritts has 24% permanent impairment to the right upper extremity (which equates to 14% whole person permanent impairment) as a direct result of injuries sustained while performing duties working for her employer on May 1, 1998." (Depo. of Dr. Lundy, Ex. 2) Bradley Healthcare also contends the trial court erred in accepting the independent medical examiner's (Dr. Lundy) impairment rating because the majority of the impairment was based on loss of range of motion measurements which were contradicted by the treating 2
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Lawrence Puckett, Circuit Court Judge |
Knox County | Workers Compensation Panel | 10/09/01 | |
| Carrier of G.Ub.M K. Constru Ctors v. Bobb Y E. Stil Es v. Jim
E2000-01092-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 employee appeals an award of twenty percent permanent partial disability as inadequate. We modify the award. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Blount County Circuit Court Modified and Remanded. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, JUSTICE, and JOHN K. BYERS, SR. J., joined. J. Bartlett Quinn, Chattanooga, Tennessee, for the Appellant Bobby E. Stiles E. Blaine Sprouse, Nashville, Tennessee, for the Appellee Jim Farmer, Director of Division of Worker's Compensation, Tennessee Department of Labor. MEMORANDUM OPINION 1 FACTS Plaintiff Argonaut Insurance Company (Argonaut) brought this declaratory judgment action against Defendant Bobby E. Stiles (Stiles) to determine its liability to Stiles under the Tennessee Workers' Compensation Act for a May 1998 injury. Argonaut is the workers' compensation insurer for G.UB.MK Constructors. Stiles then filed a counter-complaint against Argonaut and Jim Farmer, Director of the Division of Workers' Compensation, Tennessee Department of Labor (Second Injury Fund). Stiles was born January 1, 1941 and attended elementary school through the fifth grade. His work history consists of numerous positions as an unskilled manual laborer. In 198, Stiles was injured while working as a miner. Due to this injury, Stiles filed a workers' compensation action, which was settled with Stiles receiving an award of 9.9 percent disability to the body as a whole. On December 2, 1999, this case came to trial before the Circuit Court for Blount County. The trial consisted of the testimony of three witnesses, Stiles, Ms. Dorothy Edwards1, a vocational expert, and Lester F. Littell, III, M.D., Stiles' authorized treating physician, who testified by deposition. Stiles testified that besides the 198 and 1998 injuries, he also suffered a 1995 injury to his lower back which required surgery. He testified that although the 1995 injury was work-related, he did not notify Argonaut or G.UB.MK of this injury. In describing the effects of the 1998 injury, Stiles testified that he suffers from neck pain, headaches, and numbness in his right arm and hand. Additionally, Stiles testified that these symptoms were not present before the 1998 injury. As an example of his changed circumstance, Stiles testified that mowing his yard with the assistance of a riding lawn mower used to take him less than two hours but now takes all day. His daughters do his housework, and he takes his meals with his daughters or his brother, who lives nearby. He stated he has trouble driving long distances _ 2 to 3 miles. This testimony was uncontroverted. Ms. Edwards testified that due to his age, education, and physical restrictions, Stiles was 1 percent vocationally disabled with no access to the labor market. She also testified that Stiles has no transferable job skills. No other expert evidence was offered on the issue of vocational disability. Dr. Littell assessed Stiles as having a 15 percent medical disability to the body as a whole resulting from the 1998 injury. Dr. Littell also testified that Stiles has the following permanent medical restrictions: 1) Able to sit for only 15 minutes at a time; 2) Able to stand/walk for only 2 minutes at a time; 1 Incorrectly identified as "Ms. Morris" in the trial judge's memorandum of March 15, 2, though this error was corrected in the Judgment entered April 28, 2. 2
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:W. Dale Young, Circuit Judge |
Knox County | Workers Compensation Panel | 10/09/01 | |
| Ida Perry v. Copeland Electric Corporation,
W2000-02022-SC-WCM-CV
In this appeal, the appellant insists (1) the trial court erred in granting the plaintiff's motion to amend her complaint, (2) the trial court erred in finding that the plaintiff sustained an injury arising out of and in the course and scope of her employment, (3) the trial court erred in finding that the plaintiff suffered any permanent partial disability related to any alleged injury and (4) the trial court erred in finding that the claim is not time barred. As discussed below, the panel has concluded the judgment should be affirmed.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:George R. Ellis, Chancellor |
Perry County | Workers Compensation Panel | 09/27/01 | |
| Janice Newman v. Snap-On Incorporated
E2000-02531-WC-R3-CV
The plaintiff alleges that she injured her low back during the course of her employment on June 24, 1998 which resulted in a surgical correction followed by permanent impairment. The defendant raised the issue of causation, alleging that the plaintiff's condition was the result of degenerative disc disease, not work-related. The trial court found that the plaintiff suffered a compensable injury as alleged, as a result of which she sustained a 9 percent impairment, entitling her to an award of 22 _ percent. Affirmed
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:Thomas J. Seeley, Jr, Judge |
Knox County | Workers Compensation Panel | 09/27/01 | |
| Mary Ellen Barnes v. Yasuda Fire and Marine Insurance
W2000-02559-SC-WCM-CV
In this appeal, the employee insists the evidence preponderates against the denial of workers' compensation benefits and asks this tribunal to determine the extent of her vocational impairment. As discussed below, the panel has concluded the judgment of dismissal should be reversed, the conditional award of permanent partial disability benefits based on 3 percent to the body as a whole affirmed, and the cause remanded with instructions.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Kay S. Robilio, Judge |
Shelby County | Workers Compensation Panel | 09/24/01 | |
| Marilyn Reddick v. Murray, Inc.
W2000-02178-SC-WCM-CV
In this appeal, the plaintiff insists the trial court erred in dismissing her claim at the close of her proof. As discussed below, the panel has concluded the judgment should be reversed and the cause remanded for full trial of all issues fairly raised by the pleadings.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Joe C. Morris, Chancellor |
Madison County | Workers Compensation Panel | 09/19/01 |