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| Donald Picklesimer v. Mckee Foods Corporation
E2000-02694-WC-R3-CV
The trial court awarded the employee 72 percent permanent partial disability to the body as a whole. The employee appealed insisting his disability was 1 percent. Judgment of the trial court is affirmed.
Authoring Judge: Thayer , Sp. J.
Originating Judge:W. Frank Brown III, Chancellor |
Knox County | Workers Compensation Panel | 01/07/01 | |
| Karen Henson v. Finelli, Hauge, Sanders and Ragland, M.C.,
E2000-01193-WC-R3-CV
This is a Rule 6 case. The plaintiff alleges that after her claim for workers' compensation benefits for a cervical spine and shoulder injury was settled and judicially approved she continued to suffer pain and discomfort owing to a torn rotator cuff and nerve impingement which was not discovered by her treating physician, thus implicating Rule 6.2.
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:Sharon J. Bell, Chancellor |
Knox County | Workers Compensation Panel | 01/01/01 | |
| Terri L. Carter v. Cmh Manufacturing, Inc.,
E2000-00654-WC-R3-CV
This action seeking benefits for total and permanent disability attributable to a disputed diagnosis of carpal tunnel syndrome superimposed upon pre-existing injuries was dismissed. The plaintiff appeals and presents for review the issues of whether the plaintiff proved that she suffered a job-related injury, or that she suffered a vocational disability. We affirm the judgment.
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:Rex Henry Ogle, Circuit Judge |
Carter County | Workers Compensation Panel | 01/01/01 | |
| Hoskin (Brewerv. Seaman Corporation
E2000-00842-WC-R3-CV
The plaintiff was laid off 66 months after returning to work following settlement of her claim for workers' compensation benefits. After the lay-off she filed this action to recover additional benefits.
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:John S. Mclellan, III, Judge |
Knox County | Workers Compensation Panel | 01/01/01 | |
| Darlene Moore Collins v. Cmh Manufacturing, Inc. (Also
E1999-01225-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 awarded the plaintiff sixty-five percent impairment due to occupational asthma and awarded prejudgment interest to accrued benefits. The defendant argues the trial court's award was excessive because the plaintiff failed to adequately prove through medical testimony the causation and extent of her impairment. The defendant also appeals the amount of prejudgment interest. We affirm the judgment of the trial court as to the impairment award and remand for further findings of facts with regard to the prejudgment interest award.
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Ben W. Hooper, III, Judge |
Knox County | Workers Compensation Panel | 12/28/00 | |
| Wade Nance v. State Industries, Inc., and Itt Hartford
M1999-02262-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employee contends that the trial court erred in finding that the employee's conduct amounted to a willful failure or refusal to use a safety appliance pursuant to Tenn. Code Ann. _ 5-6-11(a). To clarify this area of workers' compensation law, the panel adopts a new standard which requires the employer to prove four elements in order to make out the affirmative defense of willful failure or refusal to use a safety appliance. The Panel vacates the trial court's judgment and remands the case for a new trial in which the new standard will be applied.
Authoring Judge: Frank F. Drowota,III, J.
Originating Judge:Hon. Leonard W. Martin, Chancellor |
Cheatham County | Workers Compensation Panel | 12/27/00 | |
| Jo Frances Luedtke v. Travelers Insurance Company
M1999-01717-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 findings of fact and conclusions of law. In this case, the plaintiff sued for benefits following the death of her husband, the employee. The employee died of a heart attack while at work. The trial court found that the employee was exerting himself, but that there wasno causal connection between the exertion and his death. This Panel has concluded that the trial judge was incorrect in finding that the exertion was not linked to the employee's death. We find that death or disability arises out of and in the course of employment when the exertion of the employee's work causes the heart attack, or aggravates a preexisting condition. It makes no difference that the employee suffered from a preexisting heart disease or that the attack resulted from ordinary exertion of the employee's work. Tenn. Code Ann. _ 5-6-225(e)Appeal as of Right; Judgment of the Chancery Court Reversed Drowota, J., in which John A.Turnbull, Sp. J. and Frank G. Clement, Jr., Sp.J., joined. Joseph M. Dalton and Catherine S. Hughes, Nashville, TN, for the Applicant, Jo Frances Leudtke. Sean Antone Hunt, Spicer, Flynn, & Rudstrom, PLLC Nashville, TN, for the Respondent, Travelers Insurance Company. OPINION The deceased employee, Richard Luedtke, worked as a professional painter for Harold Moore and Sons Painting. Harold Moore and Sons worked as the painting subcontractor for renovations to the Massey Auditorium at Belmont University in Nashville. The project was to be completed by the latest on August 6, 1997, as that date was scheduled for an important campus event. Due to the 1 deadline, the job was stressful for everyone involved. Because the renovations were behind schedule, Luedtke worked overtime to complete the job on time. In fact, Luedtke had worked fifteen of the sixteen days prior to his death. On the morning of September 24, 1997, Luedtke was sanding the auditorium doors and had been doing so for about an hour and a half. A co-worker, Doug Russell, was working next to Luedtke at the time. Russell turned and noticed that Luedtke was "laying on the floor." Attempts to resuscitate Luedtke were unsuccessful. Luedtke was pronounced dead at Vanderbilt University Medical Center of a heart attack. Luedtke first became aware of possible heart problems when he was hospitalized for another ailment in May 1996. Throughout 1996, Luedtke's heart condition was asymptomatic. However, in the two months prior to his death, Luedtke began to show symptoms of possible heart failure. The symptoms included fainting twice, coughing up fluid, and fatigue. From the time he discovered heart problems until his death, Luedtke was reluctant to seek treatment. Two months had passed between the time that Luedtke's symptoms began to appear and the date of an appointment for treatment with Dr. John Ververis, September 24, 1997. Luedtke did not make this afternoon appointment, because he died that morning. Luedtke's wife, Jo Frances Luedtke (hereinafter "the plaintiff"), brought this suit for workers' compensation benefits. At trial, the parties introduced the depositions of three doctors into evidence. Two of the doctors, Robert B. Gaston, M.D. and John Ververis, M.D., were Luedtke's treating physicians. The other, Leon H. Ensalada, M.D., never examined Luedtke. Dr. Ensalada based his diagnosis on the medical records and on the transcript of Dr. Ververis's deposition. Dr. Gaston was Luedtke's primary care physician and first saw Luedtke in April 1996. Dr. Gaston reported that upon examination Luedtke's lungs and heart appeared normal and that Luedtke did not complain of any symptoms associated with heart problems. Dr. Gaston diagnosed a perirectal abscess and suggested surgery. Dr. Gaston sent Luedtke to a general surgeon, Dr. LeNeve, who detected Luedtke's irregular heartbeat. Dr. Gaston saw Luedtke again in June 1997. According to Dr. Gaston's records, nothing suggested that Luedtke suffered from any discomfort or symptoms indicative of heart problems. During preparation for the April 1996 surgery with Dr. LeNeve, tests revealed that Luedtke suffered premature ventricle contractions or an irregular heartbeat. Dr. Ververis, Luedtke's cardiologist, cleared Luedtke for surgery but scheduled an appointment to follow up treatment on May 8, 1996. At the examination, Dr. Ververis performed an arteriogram and diagnosed severe dilated cardiomyopathy or a weak heart. Luedtke received no other treatment for his heart and died on September 24, 1997. Testifying about Luedtke's condition at the time of his death, Dr. Ververis felt that Luedtke's condition was so severe that any activity, including walking or sleeping could have contributed to congestive heart 2
Authoring Judge: Drowota, J.
Originating Judge:Hon. Ellen Lyle Hobbs, Chancellor |
Davidson County | Workers Compensation Panel | 12/15/00 | |
| Rita M. Russell v. Modine Manufacturing Company, Inc.
E2000-00176-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. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995).
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:James B. Scott, Jr., Judge |
Knox County | Workers Compensation Panel | 12/14/00 | |
| George T. Potter v. Schlegel Finishing, Inc.,
E1999-01808-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff appeals from the dismissal of his case by way of summaryjudgment and also appeals from the order of the trial court awarding the defendant discretionary costs. The defendant raises as an issue the action of the trial court in considering the affidavit of the plaintiff in determining the summary judgment motion. We reverse the judgment of the trial court and remand the case for further proceedings. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court for Blount County is Reversed and Remanded JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, C.J. and ROGER E. THAYER, SP. J., joined. Edward M. Graves, Jr, Carl Winkles, and Douglas C. Weinstein, Knoxville, Tennessee, for the appellant, George T. Potter. F. R. Evans, Chattanooga, Tennessee, for the appellees BTR Sealing Systems N. America - Tennessee Operations f/k/a Schlegel Tennessee, Inc., and ACE USA (mis-styled "CIGNA" in the caption). OPINION Facts The plaintiff brought suit to recover for an injury to his back, which he alleges occurred on June 14, 1993. The protracted proceedings in this case resulted in the taking of the plaintiff's deposition, the interrogatories of the plaintiff, the affidavit of the plaintiff, a deposition of a representative of the defendant, the depositions of two doctors, and various other documents which were collected and filed in the record. In the course of taking the plaintiff's deposition and other discovery, it was discovered the plaintiff had suffered a previous back injury that ultimately required surgery; however, when the plaintiff filled out his application for employment with the defendant, he responded "no" to the questions concerning previous work injuries, workers' compensation claims and surgery. Further, he did not reveal the information to the preemployment physician who conducted a physical examination of him on behalf of the defendant. The defendant made a motion for summary judgment in the case. The trial judge granted the motion, ruling: Considering the entire record, the court is of the opinion and finds that the gross misrepresentations of the employee to the employer at the time of hire are unconscionable and that this is a proper case for summary judgment in that (1) the employee knowingly and wilfully made false representations of his physical condition, (2) the employer relied upon the false representations and such reliance was a substantial factor in the decision to hire, and (3) a causal connection exists between the false misrepresentations and the alleged injury suffered by the employee in this case. Discussion The standard of review of a summary judgment order in a worker's compensation case is not de novo upon the record with a presumption of correctness, which is the standard generally applied to such cases in accordance with Tennessee Code Annotated _ 5-6-225(e). Rather, it is governed by Rule 56 of the Tennessee Rules of Civil Procedure, and the judgment of the trial court is not reviewed with a presumption of correctness. In considering a motion for summary judgment, the pleadings and the evidence must be viewed in the light most favorable to the opponent of the motion. Wyatt v. Winnebago Indus. Inc., -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:W. Dale Young, Judge |
Knox County | Workers Compensation Panel | 12/12/00 | |
| State Automobile Mutual Ins. Co. v. Natalie Hurley
W1999-01765-SC-WCM-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff, State Automobile Mutual Insurance Company (State Auto), appeals the judgment of the Circuit Court of Shelby County which ordered State Auto to pay to the defendant, Natalie Hurley (Hurley), $28,873.91 being the total of her medical bills. For the reasons stated in the opinion, we find the trial court erred and reverse the judgment of the trial court.
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Originating Judge:John R. Mccarroll, Jr., Judge |
Shelby County | Workers Compensation Panel | 12/07/00 | |
| Gerald M. Reed v. Goodyear Tire and Rubber Company,
W1999-00184-SC-WCM-CV
This case involves injuries sustained to the neck and body as a whole by Gerald Reed on August 8, 1994 while in the employ of Goodyear Tire and Rubber Company. The employee brought suit against the employer and its insurer, The Travelers Insurance Company. The trial court determined that Mr. Reed sustained a compensable work injury and awarded permanent partial disability in the amount of 15% to the body as a whole. The defendant presented one issue on appeal: whether the plaintiff proved by a preponderance of the evidence that his injuries were sustained during the course and scope of his employment. After careful review, we affirm the decision of the trial court.
Authoring Judge: George R. Ellis, Sp. J.
Originating Judge:W. Michael Maloan, Chancellor |
Obion County | Workers Compensation Panel | 12/07/00 | |
| Linda Bogle v. Toshiba America Consumer Products, Inc.
M2000-00247-WC-R3-CV
In this case, the defendant-employer contends (1) that the evidence does not support the trial court's finding that the plaintiff-employee's closed head injury and herniated cervical disc arose out of and in the course of her employment with the defendant, (2) that the trial court erred in determining the plaintiff's permanent partial impairment of 52.5%, and (3) that the trial court erred in determining that the defendant is entitled to an offset for the net short-term disability benefits provided to the plaintiff rather than for the gross amount that was paid by the provider. As discussed below, the Panel concludes that the judgment of the trial court should be affirmed in all respects.
Authoring Judge: John A. Turnbull, Sp.J.
Originating Judge:Hon. James O. Bond, Judge |
Wilson County | Workers Compensation Panel | 12/01/00 | |
| Harold W. Ferrell, Jr. v. Apac-Tennessee, Inc. and Cigna Property & Casualty Insurance Co.
M1999-02260- WC-R3-CV
The employer contends the trial court erred in finding that the plaintiff suffered a vocational disability of 12% to the body as a whole from his back injury, and an additional 15% to the left arm from his wrist injury which occurred two months later. As discussed below, the panel concludes that the judgment of the trial court should be affirmed. The panel further concludes that the appeal was frivolous or for the purpose of delay and remands the case to the trial court for imposition of appropriate penalty.
Authoring Judge: John A. Turnbull, Sp. J.
Originating Judge:J. Richard McGregor, Special Judge |
Warren County | Workers Compensation Panel | 12/01/00 | |
| Harold W. Ferrell, Jr. v. Apac-Tennessee, Inc. and Cigna Property & Casualty Insurance Co.
M2000-00223- WC-R3-CV
The employer contends this claim for work related hearing loss is time barred by notice and statute of limitations provisions, and that the award is excessive. We conclude that notice was timely given, suit was timely filed, and the award is supported by the evidence.
Authoring Judge: John A. Turnbull, Sp. J.
Originating Judge:J. Richard McGregor, Special Judge |
Warren County | Workers Compensation Panel | 12/01/00 | |
| Linda Bogle v. Toshiba America Consumer Products, Inc.
M2000-00247-WC-R3-CV
In this case, the defendant-employer contends (1) that the evidence does not support the trial court's finding that the plaintiff-employee's closed head injury and herniated cervical disc arose out of and in the course of her employment with the defendant, (2) that the trial court erred in determining the plaintiff's permanent partial impairment of 52.5%, and (3) that the trial court erred in determining that the defendant is entitled to an offset for the net short-term disability benefits provided to the plaintiff rather than for the gross amount that was paid by the provider. As discussed below, the Panel concludes that the judgment of the trial court should be affirmed in all respects.
Authoring Judge: John A. Turnbull, Sp.J.
Originating Judge:Hon. James O. Bond, Judge |
Wilson County | Workers Compensation Panel | 12/01/00 | |
| Debra Ward v. Kantus Corporation
M1999-01718-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant, Kantus Corporation, appeals the judgment of the Circuit Court for Marshall County, where the trial court awarded permanent partial disability benefits of $32,879.6, representing a permanent partial disability of thirty-two and one-half percent (32.5%) to the body as a whole, and representing two and one-half times the plaintiffs impairment rating of thirteen percent (13%) with open future medical benefits. The trial court commuted the award to a lump sum, and taxed court costs to Kantus. The defendant submits that: (1) Ms. Ward's claim is barred by the statute of limitations; (2) she failed to give notice to her employer of her injury; (3) Ms. Ward did not sustain an injury arising out of and in the course and scope of her employment; (4) the trial court's award of thirty-two and one-half (32.5%) permanent partial disability to the body as a whole was excessive and contrary to the weight of the evidence; and (5) the trial court erred in affording equal or greater weight to the opinion of the evaluating physician than that of the treating neurosurgeon in determining permanent partial impairment and disability. For the reasons stated in this opinion, We affirm the judgment of the trial court.
Authoring Judge: Weatherford, Sr. J.
Originating Judge:Lee Russell, Judge |
Marshall County | Workers Compensation Panel | 11/30/00 | |
| George Thomas Carter v. Kenneth O. Lester Company
M2000-00651-WC-R3-CV
In this appeal, the employer insists the trial court erred in accrediting the testimony of an examining physician over that of the treating physician and by exceeding the multiplier applicable in cases where the employee returns to work at the same or greater wage. As discussed below, the panel has concluded the judgment should be affirmed.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:C. K. Smith, Chancellor |
Carter County | Workers Compensation Panel | 11/30/00 | |
| James R. Hyde v. All American Homes, Llc.
M2000-00899-WC-R3-CV
The trial court awarded the employee thirty-five percent disability to both arms and ordered the award to be paid in a lump sum. The employer contends the award is excessive and the lump sum is not in the employee's best interest. We affirm.
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:James E. Walton, Circuit Judge |
Robertson County | Workers Compensation Panel | 11/30/00 | |
| Patricia Baldwin v. Waldenbook Company, Inc.
M1999-01577-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The employer contends the trial court erred in finding that the statute of limitations was tolled and that suit was timely filed. As discussed below, the panel has concluded that the judgment of the trial court should be affirmed, finding that suit was timely filed. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Chancery Court Affirmed Frank G. Clement, Jr., Sp.J., in which Frank F. Drowota, III, J., and John A. Turnbull, Sp.J., joined. Richard E. Spicer, Spicer, Flynn, & Rudstrom, PLLC, Nashville,TN, for the appellants, Waldenbook Company, Inc. Scott Daniel, Murfreesboro, TN, for the appellee, Patricia Baldwin. MEMORANDUM OPINION There are two issues to be considered to determine whether suit was filed timely. One issue is whether there was but one compensable injury or two separate compensable injuries. If there was only one compensable injury, the suit was filed timely. If there were two separate compensable injuries, instead of one, then the issue is whether Travelers Insurance Company was authorized, as agent for Waldenbook, to act for and thereby obligate Waldenbook for matters pertaining to the injury(ies). 1 Patricia Baldwin ("Baldwin"), the employee/appellee, began working for Waldenbook Company ("Waldenbook"), the employer/appellant, in 1989. Baldwin's employment consisted of performing general tasks within Waldenbook's warehouse. The first of the two incidents occurred on October 19, 1994. On that date Baldwin was loading books into a Gaylord1 at Waldenbook when she felt her wrist pop. Baldwin's hand immediately began to swell and a ganglion cyst appeared. She reported the injury to Waldenbook immediately. A First Report of Work Injury was completed and filed. Waldenbook sent Baldwin to the nearest local clinic to have her injury examined and/or treated. The clinic recommended Dr. Renfro, a specialist, who provided conservative treatment until February 2, 1995, at which time he performed surgery in order to excise the ganglion cyst. After the surgery, Baldwin returned to work on light duty but continued to complain of wrist pain. Baldwin requested that she be permitted to see another doctor but the request was refused by KM. Though she had returned to work, Baldwin was still restricted to light duty when the second incident occurred. The second incident occurred on May 18, 1995,when Baldwin felt the same wrist pop again. The wrist began to swell in the same place just as it did following the first incident in 1994. Baldwin promptly reported the incident to Waldenbook. Her symptoms were the same as before, only worse. She was authorized to receive further medical care and was treated by eleven doctors. Though the 1995 incident was immediately reported to Waldenbook, and though Baldwin was authorized to be treated by several doctors as a result of this incident, neither Waldenbook nor Travelers ever filed a First Report of Work Injury for this so-called "second injury." The only "First Report" that was filed pertained to the 1994 incident, the so-called "first injury." It is the May 18, 1995 incident which Waldenbook now insists is the second and separate compensable injury. Conversely, Baldwin insists the 1995 incident is merely an aggravation of the first and only injury, which occurred on October 19, 1994. Waldenbook was self-insured from the time Baldwin first became a Waldenbook employee until February 1, 1995. While Waldenbook was self-insured, KM Administrative Services ("KM") served as a third-party administrator processing Waldenbook's workers' compensation claims. Travelers Insurance Company became the designated workers' compensation insurance carrier for Waldenbook on February 1, 1995, Waldenbook was no longer self-insured after that date and KM no longer administered their claims. Both Waldenbook (through KM) and Travelers paid Baldwin's medical bills. Her bills were paid through November 27, 1996. On April 19, 1996, KM verbally informed Baldwin's attorneythat the last voluntary medical 1A large box in which books are packed for shipping. 2
Authoring Judge: Frank G. Clement, Jr., Sp. J
Originating Judge:Hon. Robert E. Corlew, III, Chancellor |
Rutherford County | Workers Compensation Panel | 11/29/00 | |
| Merlin Gene Cletcher v. Wal-Mart Stores, Inc.
M1998-00011-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. Section 5-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The employer, Wal-Mart, contends the trial court erred when it held 1) that Dr. Dan Jackson's treatment of Plaintiff's workers' compensation injury was reasonable and necessary, 2) that Dr. Jackson, a chiropractor, was and should remain an authorized provider, and 3) that Defendant should pay for all future medical-related charges that Dr. Jackson deems reasonable and necessary for the treatment of the compensable injury which is the subject of this action. After careful review of the record, it is the opinion of this Panel that the decision of the trial court should be affirmed.
Authoring Judge: Hamilton V. Gayden, Jr., Special Judge
Originating Judge:Hon. C.K. Smith, Chancellor |
Macon County | Workers Compensation Panel | 11/28/00 | |
| John Welsh, v. Universal Fasteners, Inc., and The Yasuda Fire and Marine Insurance Company
M1999_00267_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 employee contends the trial court erred in granting the employers motion for summary judgment on grounds that the claim was barred by the statute of limitations. We conclude that the running of the one year statute of limitations was tolled from the time the employee requested assistance of the Department of Labor until his claim for medical benefits was rejected by the claims specialist. Tenn. Code Ann. _5-6-225(e)(3) Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded TURNBULL , Sp.J., delivered the opinion of court, in which DROWOTA , J., and LOSER, Sp.J., joined. Christopher L. Dunn, Columbia, Tennessee, for the appellant, John Welsh. Delicia R. Bryant, Brewer, Krause & Brooks, Nashville, Tennessee, for the appellees, Universal Fasteners, Inc., and The Yasuda Fire and Marine Insurance Company. MEMORANDUM OPINION Facts The thirty year old employee, Welsh, is a high school graduate with a work history of manufacturing line employment. He began working for his employer, Universal Fasteners, Inc., in March of 1989, and continues to work there. In the spring of 1996, the employee began experiencing pain in his right shoulder. From September of 1991 until September of 1996, he worked on Universal's plating line. This task required repetitive scooping liquid material [slugs] in one or two gallon buckets weighing between ten and sixty pounds. The task was repeated six times during each seven and one-half minute plating cycle throughout the work day. The pain in employee's shoulder progressed during the summer of 1996, ultimately causing him to report his injury to his employer on September 26, 1996. Welsh then went to Dr. Michael Pagnani who diagnosed bicipital tendinitis with a spur projecting from the under surface of the right acromion and recommended limitation of upper extremity work, and discussed the possibility of rotator cuff surgery if pain persisted. Dr. Pagnani was equivocal as to whether the injury resulted from employment. After initially paying medical expenses, the Yasuda Fire and Marine Insurance Company denied Welch's claim for medical benefits and filed a notice of controversy on November 4, 1996. Yasuda's last voluntary medical payment occurred on November 27, 1996. On November 18, 1996, the employee contacted the Tennessee Department of Labor and requested review of Yasuda's denial of benefits. The record does not contain the entire Department of Labor file, but does indicate the first claim specialist assigned to the case made an investigation and wrote for a medical report on April 23, 1997. Due to change ofpersonnel, a new claim specialist was assigned in the summer of 1997, and on August 8, 1997, she wrote Yasuda and Welsh indicating she found "the medical evidence supports that Mr. Welsh suffers from a compensable work related injury," and stated her position "medical coverage for this claim should be reinstated and recommended courses of treatment ... should be followed." However, on September 19, 1997, the specialist reversed her finding and stated in a letter to Mr. Welsh: "I cannot justify ordering medical and/or lost time benefits in this case. Mine is not the final word however, and you may bring your dispute before a court of proper jurisdiction. You do not have an unlimited time to do so. Tenn. Code Ann., Section 5-6-23 sets a one year statute of limitations to bring a suit for compensation. You may wish to seek legal counsel to properly preserveyour legal rights." The employee retained counsel in January of 1998, and filed suit February 3, 1998. The employee has not missed any work due to his injury, but did make a contingent claim for temporary total and permanent disability benefits in his filed complaint. From the above summarized evidence, the chancellor found no dispute as to any genuine issue of material fact and concluded that Welsh failed to file his complaint within one year from the date of last voluntary payment of medical expenses on November 27, 1996. At the hearing on motion for summary judgment, trial counsel failed to cite or advise the chancellor of the provision [2]
Originating Judge:Hon. Donald P. Harris, Chancellor |
Hickman County | Workers Compensation Panel | 11/28/00 | |
| Pamela Harper v. Travelers Insurance Co., et al
M1999-01913-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. Section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Plaintiff commenced this cause of action on March 18, 1998 alleging that she had developed bilateral carpal tunnel syndrome due to the repetitive use of her hands and arms while employed at Flex Technologies, Inc. The trial court awarded permanent partial disability benefits based on the functional equivalent of 75% to both arms. Flex Technologies, Inc. and The Travelers Insurance Company, respectively, filed this appeal. Appellants contend that the trial court erred 1) by denying Appellants' motion for a continuance of the trial, 2) in accepting the opinion of an independent medical expert over the opinion of the treating physician, and 3) in awarding excessive permanent partial disability benefits. As discussed below, the Panel holds that the trial court's award of permanent partial disability benefits was not excessive and that the judgment of the lower court should be affirmed.
Authoring Judge: Hamilton V. Gayden, Jr, Special Judge
Originating Judge:Hon. James O. Bond, Judge |
Macon County | Workers Compensation Panel | 11/28/00 | |
| Stephen Benker V.Williams Telecommunications Service, Inc., et al.
E1999-01967-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employer has appealed from the trial court's ruling the employee is totally disabled raising issues concerning compensability of the claim and the apportionment of the award. Judgment of the trial court is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed. THAYER, SP. J., in which ANDERSON, C. J. and BYERS, SR. J., joined. Robert W. Knolton, of Oak Ridge, Tennessee, for the Appellants, William Telecommunications Service, Inc. and Insurance Company of the State of Pennsylvania. Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, of Nashville, Tennessee, for the Appellee, State Second Injury Fund. J. Anthony Farmer, of Knoxville, Tennessee, for the Appellee, Stephen Benker. OPINION The employer, Williams Telecommunications Service, Inc., and the Insurance Company of the State of Pennsylvania, have appealed from the trial court's ruling finding the employee, Stephen Benker, to be totally disabled. Facts Employee Benker was 51 years of age and was a high school graduate with some vocational training. His prior work history was a laborer, maintenance worker, construction worker and carpenter. He was employed as a telephone computer service system installer on September 23, 1997, when he tripped on some phone cords and fell. When this occurred, he testified he twisted his back, felt sharp pain down his leg and some numbness in his low back. Prior to this accident, he had disc surgery in 1975 or 1976 and returned to work. In 199 he had another disc operation and returned to work. He had complaints from back problems for several years prior to the incident in question and had missed work at different times between 199 and the accident in 1997. He has not worked since the September 23rd incident and states he is not able to work at any of the jobs he has held. His wife, Lisa Benker, testified as to his physical limitations and testified that she does everything both inside and outside their home and that "our entire life has changed, everything is different." Dr. John T. Purvis, a neurosurgeon, performed the second surgery in 199 which involved a ruptured disc. He saw the employee again after the incident in question and stated that he had severe osteoarthritis in his low back and with his prior historyof having disc surgery twice, he would be very sensitive to any type of injury to the back. He concluded that Benker sustained an aggravation and acceleration of his lumbar spondylosis to such an extent that he was unable to work; that there was some anatomical change and he was surprised that he had worked as long as he did. He gave impairments of 1 percent due to the 1976 surgery, 15 percent due to the 199 surgery and 1 percent due to the September 1997 accident. Opposing this medical testimony was the written medical report of Dr. Archer Bishop. He performed an independent medical examination on November 1, 1998 and was of the opinion the accident had only increased his pain and that there was no additional impairment. Witness, Julian Nadolsky, a vocational consultant, testified the employee had "no capacity to earn a living in any occupation" based on the opinion of Dr. Purvis. He admitted that there would be no vocational disability under Dr. Bishop's conclusion. The trial court found the accident of September 23, 1997 rendered the employee totally disabled and apportioned the award of permanent total disability pursuant to subsection (a)(1) of Tenn. Code Ann. _ 5-6-28. The court ordered the employer to pay 6 percent of the award and the state second injury fund to pay the remaining 4 percent. Issues on Appeal The employer and insurance company contend: (1) the accident in question did not cause any anatomical change in the employee's pre-existing condition, (2) the employee was not totally disabled as a result of the last accident and (3) the court was in error in apportioning a greater portion -2-
Authoring Judge: Thayer, Sp. J.
Originating Judge:Ben W. Hooper II, Circuit Judge |
Knox County | Workers Compensation Panel | 11/27/00 | |
| Ingram Book Company v. Rebecca Rowland
M1999-01233-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) (1999) for hearing and reporting of findings of fact and conclusion of law. In this case, the employee contends the trial court erred in finding no causal connection between her injury and employment and no permanent partial disability. As discussed below, the panel has concluded that the evidence preponderates against the trial court's findings and reverses its decision. Tenn. Code Ann. _5-6-225(e)(3) Appeal as of Right: Judgment of the Chancery Court Reversed and Remanded TURNBULL, SP. J., in which DROWOTA, J., and LOSER S. J. joined. D. Russell Thomas and Herbert M. Schaltegger, Murfreesboro, Tennessee, for the appellant, Rebecca Rowland. D. Brett Burrow and Delicia R. Bryant, Brewer, Krause & Brooks, Nashville, Tennessee, for the appellee, Ingram Book Company. MEMORANDUM OPINION Background Rebecca Rowland ("Rowland"), the employee-appellant, is a forty-two years old mother of two who has been married for twenty-three years. She dropped out of school in the tenth grade but obtained her GED in 1984. She has worked at various unskilled jobs: Working as a waitress, cook and cashier; cleaning apartments; working as a housekeeper and supervisor for a hotel. Rowland worked for Ingram Book Company [Ingram], the employer-appellee, from 1993 to 1999. She first worked as an order puller, scanning books and placing them on shelves, and then worked as a shagger, locating books that order pullers could not locate. Her last job, prior to her alleged injury, was a job in which she was required to do forceful repetitive hand motions in cutting open cardboard boxes as well as dust mopping with a wide mop. After working in this last job four weeks, she developed carpal tunnel syndrome in April of 1997. Rowland was also diagnosed as having hypothyroidismin November 1997 and has taken medication since December 1997. She returned to work after the surgery and worked for Ingram for one and a half years. Then she left Ingram because of her dissatisfaction with management practices. According to Rowland's own trial testimony, which is unimpeached and uncontradicted, she continued to have pain in her hands, wrists and arms and to have diminished strength in her hands with regard to gripping or twisting. The parties submitted two medical depositions: the testimony of Dr. Martin and Dr. Gaw. Dr. David Martin, a plastic surgeon with additional training in carpel tunnel syndrome, first saw Ms. Rowland on June 19, 1997. Based on her complaints of numbness and pain, his clinical evaluation and the E.M.G. studies of Dr. Richard Lisella, Dr. Martin diagnosed bilateral carpel tunnel syndrome, greater on the left than on the right. He immediately scheduled Ms. Rowland for surgery on her left wrist which was performed on June 27, 1997. He prescribed a wrist splint for her right wrist, also on June 19, 1997. Dr. Martin released the employee to return to one-handed work on July 9,1997. Although the left wrist and hand were improved by surgery, the right handed symptoms increased with the one-handed work, and Dr. Martin scheduled and performed carpel tunnel release surgery on the right wrist on August 12, 1997. She was again released to return to one-handed duties on August 22, 1997. Some thirty-nine days after Ms. Rowland returned to work, Dr. Martin, on October 1, 1997, found that ... "her symptoms have completely resolved. She has mild, residual, right peri-incisional sensitivity which continues to improve." He kept a ten pound weight restriction in force for one month and opined that Ms. Rowland would retain a % [zero] permanent impairment. Dr. Martin treated Ms. Rowland under workers compensation, was paid for his services by workers compensation benefits provided by Ingram, and never made any medical note, nor does the record reveal he expressed any opinion, that the injury was not work related until he gave his deposition on July 1, 1999. Dr. David Gaw, an orthopaedic surgeon, saw Ms. Rowland one time, February 2, 1998. His examination lasted thirty to forty-five minutes. At that time, Ms. Rowland was complaining of continued weakness, transient tingling, pain on repetitive use, and was found to have a positive Phalens test and slightly diminished perception to pin prick. Based upon the patient's history, Dr. Gaw expressed the opinion "most likely cause is the type of work she described down at Ingram Books." He further opined that there was "no real question as to causation" if her history is true. Dr. Gaw assigned a 1%impairment to each arm. Neither of the experts testified that the thyroid [2]
Authoring Judge: Turnbull, Sp. J.
Originating Judge:Ellen Hobbs Lyle, Chancellor |
Davidson County | Workers Compensation Panel | 11/14/00 | |
| Jimmy L. Lane v. Schering-Plough Corporation,
E2000-00829-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The State Second Injury Fund has appealed the trial court's ruling that it was not entitled to a credit or setoff for payment of temporary total disability benefits against that portion of the permanent disability award which it is responsible to pay. Judgment of the trial court is affirmed.
Authoring Judge: Thayer, Sp. J.
Originating Judge:Jerri S. Bryant, Chancellor |
Knox County | Workers Compensation Panel | 11/14/00 |