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| Tommy Freeman v. Madison County Sheriff's Department
02S01-9704-CH-00034
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 of findings of fact and conclusions of law. The issues presented by this appeal are whether the trial court erred in finding that the statutory presumption created by Tenn. Code Ann. _ 7-51-21 applied to plaintiff and whether or not the defendant's medical proof overcame the presumption. The panel concludes that the judgment of the trial court awarding benefits should be reversed and the case dismissed for the reasons stated herein. Thomas Freeman ("plaintiff") was employed by the Madison County Sheriff's Department in 1971. He served as a deputy for a year and then was promoted to the rank of Captain. He stayed in the rank of Captain until 1991, when he was appointed Assistant Chief Deputy. He had been appointed to the position of Chief Deputy at the time of trial. In the early days following his promotion to Captain, plaintiff assumed supervisory duties along with his regular duties. However, as the department grew he began to delegate more of the regular duties and moved into a more supervisory role. With the promotion to Assistant Chief Deputy, he assumed even more of a supervisory and administrative position. Since 1991, his job duties have been primarily that of supervisor and he was not required to go out on patrol or do things such as working on accidents as part of his regular job duties. In November, 1994 plaintiff begin to experience symptoms of a heart attack while sitting at his desk at work. Nothing out of the ordinary occurred on the job either on that day or in the time period before that. He was subsequently treated for a heart attack at a local hospital and was diagnosed with coronary artery disease. He underwent quintuple bypass surgery thereafter. He returned to work on a gradual basis and is now working full time in his former position as Chief Deputy. Plaintiff was fifty-one years old at the time of his heart attack. The medical proof consisted of the testimony of several physicians by deposition, which testimony is summarized as follows: Dr. James Crenshaw, a cardiologist, testified that he was called to the emergency room to examine plaintiff, after plaintiff was admitted complaining of chest pains and suffering from an acute myocardial infarction. Following Dr. Crenshaw's examination, 2
Authoring Judge: Hewitt P. Tomlin, Jr., Senior Judge
Originating Judge:Hon. Joe C. Morris, |
Madison County | Workers Compensation Panel | 02/02/98 | |
| Nathan Wayne Smith v. Maremont Corporation
01S01-9703-CV-00077
This Workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e) (3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Plaintiff filed this lawsuit alleging that he has suffered permanent partial disability as a result of an accident in the course and scope of his employment with the Defendant. The matter was heard by the trial court on May 1, 1993. The court awarded plaintiff 25% permanent partial impairment to the body as a whole. The trial court also awarded benefits paid in a lump sum. Within 3 days from the judgment of the trial court the plaintiff filed a motion to alter or amend the judgment; the substance of plaintiff's motion to alter and amend was that the court should have awarded a greater percentage of permanent partial impairment based on the proof. Later, in l995 the motion to amend and alter the judgment was amended to contain allegations of newly discovered evidence; this new allegation was based on alleged new discovery of a cervical problem, a slipped disc; plaintiff alleged that this new injury related back to the original lumbar back injury. The trial Judge heard the motion to amend and the later filed amended motion alleging newly discovered evidence. The motion was denied in October, 1996. The court ruled that T.C.A._ 5-6-231 provides that lump sum payments are final and dismissed plaintiff's motion. This appeal presents two issues: (1) Whether the court erred in awarding 25% permanent partial disability, and (2) Whether the court erred in not granting plaintiff's motion for a hearing based upon newly discovered evidence. The panel affirms the trial court on both issues. However, the Panel remands the question of whether the newly discovered cervical disc problem, that led to a subsequent cervical surgery which is the focal point of the motion to alter and to amend, relates back to the original lumbar back injury which, in turn, would render the defendant liable for medical expenses. The proof discloses that Mr. Smith, the plaintiff, at the time of the trial was 51 years old, and possessed a high school education. He has a variety of job skills including previous employment as a carpenter, employment with a termite company, electrical and other diverse jobs. At the 2 time of the injury involved in this lawsuit he was employed with Maremont having worked there from June, 1967 to October, 1988. The plaintiff has been unemployed since 1988.
Authoring Judge: Hamilton V. Gayden, Jr., Special Judge
Originating Judge:Hon. Jim Hamilton |
Smith County | Workers Compensation Panel | 01/30/98 | |
| Special Judge Hamilton v. Gayden, Jr.
01S01-9705-CV-00106
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 injured his back on June 3, 1995 while in the course of his employment with the defendant. The trial judge found the plaintiff had sustained a 55 percent vocational impairment to the body as a whole. The defendant says the medical evidence submitted at trial was insufficient to show the plaintiff sustained a permanent injury and further says the award was excessive even if the plaintiff sustained permanent injury. The judgment of the trial judge is affirmed. Because there is no contest about the accident which injured the plaintiff, we need not discuss the facts thereof. MEDICAL EVIDENCE The only medical evidence in this case was the testimony of Dr. S. M. Smith, an orthopaedic surgeon. Dr. Smith first saw the plaintiff on August 31, 1995. He testified concerning his examination of the plaintiff and detailed specific findings, not necessary to set out, concerning the injury. When asked his opinion about the plaintiff's injury on the date of August 31, 1995, Dr. Smith said: I felt that he needed an MRI of his lumbar spine, along with an EMG and a nerve conduction study of both lower extremities to fully evaluate the back problem. I also felt that he may need a course of physical activity and possible surgical intervention based upon the findings of the MRI. And at that time, I didn't think I could give him an impairment rating, because his condition had not been fully evaluated.1 Dr. Smith saw the plaintiff on April 3, 1996 and again examined him. When asked about his condition at that time, Dr. Smith said: He continues to have problems with his back. His examination was completely unchanged. And I told him that since we cannot get any studies done, that I would go ahead and rate him based on the physical findings that he has now. And he has enough physical findings to make me think that he has nerve root impingement in the lumbar region. I think that he deserves an MRI to help better elucidate this problem. I would not feel comfortable sending him to PT without an MRI, because if he does have a ruptured disc, then this could make his condition worse. 1 The defendant would not pay for an MRI or EMG because they did not recognize the plaintiff's injury as compensable. The plaintiff could not afford the cost of the tests. 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. John Maddux, |
Clay County | Workers Compensation Panel | 01/26/98 | |
| Jeffrey Glenn Bogle v. Distribution & Auto Service, et al.
01S01-9706-CH-00128
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff filed this suit and alleged he had sustained permanent impairment to his knees as the result of an injury in the course and scope of his employment with the defendant. The trial judge denied the plaintiff's claim for workers' compensation and dismissed his case. The plaintiff says he carried his burden of proving by a preponderance of the evidence that he sustained a work related injury. We affirm the judgment of the trial court. The plaintiff was age 4 at the time of trial. He had a high school education and was trained in automobile body repair work. The plaintiff alleged his knees were injured when he fell off an automobile frame rack and landed on both knees on August 16, 1994. The plaintiff did not see a doctor about his knee problems until late 1994 or early 1995. The evidence of whether the injury to the plaintiff's knees was causally connected to his work with the defendant is based upon the testimony of the plaintiff and one doctor. The plaintiff testified that he considered the work related fall to be minor at first but that later he developed a gradually progressive serious problem in both knees. The plaintiff explained that he could not have known the seriousness of the fall until the onset of symptoms. Dr. Robert Russell, an orthopaedic surgeon, testified that it was not until after he performed arthroscopic surgery on the plaintiff's knees that he concluded the condition was "trauma related." Dr. Russell further testified that the plaintiff's injury was "consistent" with a fall to both knees, but he did not testify based upon a reasonable degree of medical certainty that the plaintiff 's work related fall caused his knee problems. Dr. Russell assessed a 12 percent permanent partial impairment to each knee and restricted the plaintiff from climbing, squatting, and crawling. 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Robert E. Corlew, III, |
Rutherford County | Workers Compensation Panel | 01/26/98 | |
| Annie Atkins v. Yamakawa Manufacturing Co., Inc.
01S01-9706-CV-00138
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff filed this suit and alleged she had developed bilateral carpal tunnel syndrome in the course and scope of her employment with the defendant. The trial judge found the plaintiff had sustained an anatomical impairment of ten percent to the right wrist and five percent to the left wrist for an average of seven and one half percent to each wrist. The trial judge awarded the plaintiff permanent partial benefits based on a finding of 35 percent vocational disability to each arm, ordering part of the award to be paid in a lump sum. The trial judge also awarded the plaintiff the expense of obtaining the Standard Form Medical Report and deposition of her treating physician as well as the expenses of taking the depositions of two evaluating physicians. The defendant says the plaintiff is not vocationally disabled and therefore not entitled to benefits and expenses. We affirm the judgment of the trial court. The plaintiff was age 4 at the time of trial. She is a divorced mother of five children who has a high school degree with no specialized job skills or training. Her work history consists almost entirely of unskilled, hand intensive labor. The plaintiff has worked for the defendant as a machine operator since early 1992. In this capacity, the plaintiff presses buttons of five different machines while continuously loading and unloading parts from the machines and placing completed component parts in a basket at her work station. The evidence of whether the plaintiff has sustained a vocational disability is based upon the testimony of the plaintiff and the depositions of three doctors. The plaintiff testified she began having pain in her hands as early as 1993. She saw a series of doctors about this pain. In May 1996, she selected Dr. Jack M. Miller, whom she saw for examination, treatment, and operation. The plaintiff underwent surgery first on her right hand and later on her left hand, but she testified that she continued to complain to Dr. Miller about the pain and numbness in her 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. James E. Walton, |
Robertson County | Workers Compensation Panel | 01/26/98 | |
| Anne Crossett v. Babcock Industries, Inc., et al.
01S01-9701-CV-00001
Authoring Judge: William S. Russell, Retired Judge
Originating Judge:Hon. |
Sumner County | Workers Compensation Panel | 01/26/98 | |
| James v. Peeler
01S01-9707-CV-00145
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with T.C.A. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Supreme Court on May 17, 1996 affirmed a judgment for the plaintiff entered on September 22, 1994 whereby he was awarded benefits for (1) the loss of an eye, (2) temporary, total disability, and (3) "all medical expenses." Benefits for the loss of an eye were calculated to be $16,524., which was paid. Benefits for temporary, total disability were $6,616.8, which was paid. Medical treatment was provided by the Veterans' Administration, whose charges, proved at the trial, were $11,438.. On August 1, 1996, the plaintiff filed a petition for the Writ of Mandamus seeking the judicial coercion of the defendant to pay (1) interest on the benefits for permanent, total disability; (2) interest on the temporary, total benefits, and (3) payment of the medical expenses with accrued interest. The defendant filed a "Response to Petition for Writ of Mandamus," alleging that the interest "has now been paid." With respect to the medical expenses, the defendant responded that on December 15, 1993, before the case was tried, it received a letter from the VA enclosing a statement for medical services provided to the plaintiff in the amount of $11,438.. Payment was requested by draft payable to the VA. After the case was concluded, the VA agreed to accept $7,625. in settlement of its claim for medical expenses. The trial court ruled that "the VA had a valid subrogation interest in the amount of $11,438. for medical benefits provided to the plaintiff and that the
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. William B. Cain |
Wayne County | Workers Compensation Panel | 01/26/98 | |
| James Dollar v. Florida Steel Corporation
02S01-9608-CH-00071
Authoring Judge: William S. Russell, Retired Judge
Originating Judge:Ash, Judge |
Madison County | Workers Compensation Panel | 01/22/98 | |
| Doris Hensley v. Liberty National Life Ins. Co.
02S01-9705-CH-00044
Authoring Judge: Cornelia A. Clark, Special Judge
Originating Judge:Hon. Dewey C. Whitenton, |
Hardeman County | Workers Compensation Panel | 01/15/98 | |
| Eddie Freeman v. Kimberly-Clark Corp.
02S01-9612-CV-00106
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 of findings of fact and conclusions of law. The employer, Kimberly-Clark, appeals and contends that the evidence preponderates against the trial court's findings (1) in ordering the extension of temporary total disability benefits through July 1996, and (2) in ordering the defendant to pay the medical expenses and deposition costs resulting from Plaintiff's treatment by and the deposition of Dr. Berry. The panel concludes that the judgment should be modified in part and reversed in part. Edward Freeman ("Plaintiff") was employed by Kimberly-Clark ("Defendant") for some eight years as a maintenance insulator. While lifting a load of cardboard boxes during work hours he suffered an injury to his neck. His treating physician determined that Plaintiff had ruptured two discs in his neck which required surgery. Following surgery, due to undetermined causes, fusion plugs that had been inserted into Plaintiff's neck during the first surgery slipped out of place, causing him to have to undergo two additional surgeries to correct the problem. In order to prevent future slippage of the fusion plugs, Plaintiff was fitted with a halo traction device following his third surgery for immobilization of his head and neck. This device was secured by steel pins screwed through the scalp and into the outer surface of the skull. Following the third surgery in August of 1992, one of Plaintiff's treating physicians, Dr. Lindermuth, released Plaintiff into the care of the other treating physician, Dr. Meredith, who after treating Plaintiff for slightly over a year determined that he had reached maximum medical improvement as of September 7, 1993. During this same period of time Plaintiff was referred by his counsel to Dr. McAfee for pain management and evaluation. On October 15, 1993 Dr. McAfee produced a plan for Plaintiff to gradually taper off his therapy and medication over the course of approximately one month. Dr. McAfee testified that in his opinion Plaintiff had achieved maximum medical improvement at that time. He encouraged Plaintiff "to think positive toward going back to work by the end of December of 1993." Since 1989, Plaintiff had been under the care of Dr. Harris, a licensed psychiatrist. From that time through May of 1992, Dr. Harris treated Plaintiff for
Authoring Judge: Hewitt P. Tomlin, Jr., Senior Judge
Originating Judge:Hon. Robert A. Lanier, Judge |
Shelby County | Workers Compensation Panel | 01/15/98 | |
| Pam Fenner v. D.B.C. Enterprises, et al
02S01-9703-CV-00023
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court granted summary judgment in favor of the defendants for lack of jurisdiction and dismissed the cause with prejudice at the plaintiff's cost. We affirm the judgment of the trial court on the grounds that Tennessee does not have jurisdiction over this case under the provisions of TENN. CODE ANN. _ 5- 6-115, which governs extraterritorial jurisdiction of the Tennessee Workers' Compensation Law. The plaintiff contacted the defendant D.B.C. Enterprises' headquarters in Grand Rapids, Michigan by telephone in late August 1993 from Camden, Tennessee after she learned of the possibility of employment. She stated in her deposition that at the time she made the initial inquiry, the only contact that she and her husband had with Tennessee was their ongoing attempt to purchase real property. Plaintiff first spoke by telephone to the hiring agent for D.B.C., Pete Carroll, who told her that she would have to travel to Grand Rapids to finalize employment with the company. She was not hired during the course of this initial phone call. By the plaintiff's own admission, her employment was contingent upon passing a physical examination and completing entrance paperwork at the defendant's Grand Rapids headquarters. She was actually hired in Grand Rapids, Michigan on September 1, 1993, after taking a physical examination, completing an interview and finalizing the formal paperwork. The affidavit of Victor Mainwaring, D.B.C. Enterprises Safety Director, states that no contract for hire was ever entered between D.B.C. and the plaintiff in Tennessee and that the plaintiff's employment was not principally localized in Tennessee. His affidavit further states that [D.B.C.] Enterprises does not run, operate, or own a terminal in Tennessee and that driver trip data sheets completed by the plaintiff and her husband indicate that at no time did the plaintiff deliver, pick up, load or unload anything in the State of Tennessee. Plaintiff alleges that on October 22, 1993, she was injured in Gallup, New Mexico while enroute from California carrying cargo for the defendant. Under Tennessee law, a court may assume jurisdiction of a workers' compensation action
Authoring Judge: Robert L. Childers, Special Judge
Originating Judge:Hon. Julian P. Guinn |
Benton County | Workers Compensation Panel | 01/15/98 | |
| Smith v. Lauren
03S01-9701-CH-00003
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. _________________________________ Irvin H. Kilcrease, Jr., Special Judge CONCUR: ________________________________ John K. Byers, Senior Judge ________________________________ Adolpho A. Birch, Jr., Justice 2
Authoring Judge: Irvin H. Kilcrease, Jr., Special Judge
Originating Judge:Hon. G. Richard Johnson, |
Smith County | Workers Compensation Panel | 01/12/98 | |
| Kathy Reynolds v. Life Care Centered of America
02S01-9703-CV-00015
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the plaintiff 5% permanent partial disability to the right arm and 25% to the left arm. The trial court also awarded temporary total disability for the period between 6/3/95 and 1/16/96 (22 weeks) at the $152.24 compensation rate totaling $5,23.92 , medicals and mileage, future medical on arms only, attorney's fees in lump sum and discretionary costs. We affirm the judgment of the trial court. The plaintiff is a 55-year-old female with a tenth grade education. She has work experience in a factory and experience cleaning and working on boats. She started working for the defendant in 1993 as a certified nursing assistant. Plaintiff's duties for the defendant included making beds, feeding, shaving and bathing patients and turning them in their beds. These job activities require lifting, bending, and manipulating of the patients and the objects around them. On May 1, 1995, the plaintiff, while attempting to lift a patient into a chair with the aid of a fellow employee, fell forward striking her arm on the chair. She alleged that this accident caused damage to her neck, shoulder and right arm. The trial court did not find adequate proof to substantiate an injury to the neck. Only the questions of causation and the amount of permanent partial disability to the right and left arms are before us for review. The plaintiff testified that she complained of the injury to her right arm to her charge nurse on the date of the accident and again on the next day. The plaintiff testified on cross-examination that she first saw Dr. Portis to whom, she believes, she related the details of her accident. However, Dr. Portis' medical records do not reveal that the plaintiff informed him of the details of her accident. The plaintiff then saw Dr. Warmbroad on June 9, 1995. She admits that she did not tell him about the fall. In June of 1995, the plaintiff also saw Dr. Anthony Segal. She did not give a history of injury or trauma to her right arm to him. Dr. Segal thought that the carpel
Authoring Judge: Robert L. Childers, Special Judge
Originating Judge:Hon. C. Creed Mcginley, Judge |
Benton County | Workers Compensation Panel | 01/05/98 | |
| Sandra Kay Cornelison v. Northwest Tn Economic Dev. Council
02S01-9704-CH-00035
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 sustained an injury to her back during the course of employment on March 1, 1994. Based on her age, education, lack of transferable job skills, the nature and extent of her injury, job opportunities for similarly injured workers and all other relevant vocational factors, the trial judge awarded her permanent partial disability benefits of 5% to the body as a whole. We find that the evidence preponderates against an award of 5% and in favor of an award of 25% permanent partial disability to the body as a whole and affirm the judgment of the trial court as modified. The plaintiff is a 42-year-old (39 at the time of the accident) female with a Child Development Associate's Certificate to work with young children. The plaintiff also has a cosmetology license. For some ten years prior to trial, the plaintiff was employed by the Madison County School System working with visually impaired students and CDC students at the local high school. At the time of the accident, and since, the plaintiff has sustained employment as an art teacher for four and five-year-old children in the Northwest Tennessee Head Start Program. This job entails lifting and squatting to manipulate and communicate with the children, as well as extended periods during which she must remain on her feet. On March 1, 1994 while attempting to move an art table in her classroom, the plaintiff experienced pain in her lower back which was initially diagnosed as a lower lumbar muscle strain. From March 23, 1994 through September 24, 1994 the plaintiff was seen by Dr. James Warmbrod who diagnosed the plaintiff as having a resolving lumbosacral sprain. The plaintiff was subsequently treated on October 21, 1994 by Dr. Jerry Engelberg, who found no significant abnormalities. Dr. Glen Barnett, a neurosurgeon, examined and treated the plaintiff from November 4, 1994, through August 12, 1996. Dr. Glen Barnett stated during the course of that treatment that he did not believe that surgery would decrease her pain. On April 1, 1996, Dr. Glen Barnett opined that the plaintiff had reached maximum medical
Authoring Judge: Robert L. Childers, Special Judge
Originating Judge:Hon. Joe C. Morris |
Madison County | Workers Compensation Panel | 01/05/98 | |
| Rutherford v. Cross
03S01-9611-CV-00114
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff filed this workers' compensation claim on July 29, 1993, alleging that on April 15, 1991 he discovered that he was permanently and totally disabled from work due to coal workers' pneumoconiosis ["black lung disease"]. The defendants answered that the plaintiff had retired from their employ on February 6, 1991 under their regular old age retirement program and they had no information about any alleged work related disability. After a hearing on the merits, the trial court found the plaintiff "had not sustained his burden of proof of establishing his claim for occupational disease benefits arising out of his black lung condition" and dismissed the complaint. We affirm the judgment of the trial court. The plaintiff is now 69 years old. He has been receiving old age retirement benefits from the Social Security Administration and from the defendants since February 6, 1991. He has applied for black lung benefits from the U. S. Department of Labor on three occasions. Two of those applications were denied. The defendants sought, by Motion to Consider Post-Judgment Facts in this case, to have the results of the third Department of Labor adjudication admitted as evidence; however, the Motion was denied as inappropriate under RULE 14(a), TENN. R. APP. P. The plaintiff contends that the medical evidence proves that he was totally and permanently disabled from work at the time of his retirement under old age programs, notwithstanding the fact that he was working full-time up to the day he retired. To support this claim, he introduced at trial the medical evidence previously submitted to the Department of Labor in his black lung claims; his testimony and that of his wife; an independent medical evaluation by Dr. Glen Baker performed on October 6, 1993; and the testimony of Dr. Norman Hankins and Ms. Kelly Lenz, vocational experts who performed a vocational evaluation in October 1994. The thrust of plaintiff's argument for award of workers' compensation benefits is that the trial court and this Panel are required to apply federal standards in making our determinations and that under 2 C. F. R. _ 718.34, he is irrebuttably presumed 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. James B. Scott, Jr., |
Knox County | Workers Compensation Panel | 01/05/98 | |
| Craig Warrington v. Emerson Electric Co.
02S01-9703-CH-00024
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court granted the defendant's "Motion to Dismiss" finding that the plaintiff had failed to carry his burden of proof of causation between the alleged work injury and the permanent impairment. We find that the evidence preponderates in favor of the trial court's decision and we affirm. The plaintiff alleged that "on or about" October 5, 1995 he sustained an injury when he twisted his neck and back, while running a press. Plaintiff was 42 years old at the time of the trial. He claimed that he had no pain or other problems with his neck and back prior to beginning work on October 3, 1995 at Emerson Electric Company. At approximately 1: a.m. on October 4, 1995, plaintiff claimed that he began experiencing pain in his neck and shoulder at which point he informed his supervisor, Jimmy Barber, that he was injured. The plaintiff did not receive medical attention at that time and continued to work the remainder of his shift on that day and the next. On Friday, October 5, 1995, plaintiff claims that he left a message on "the answering machine in the press room" that due to his pain he would not be at work and that he was going to see a doctor. Plaintiff first saw Dr. Tettleton, a chiropractor in Humboldt, on Friday, October 5, 1995. Dr. Tettleton performed a manipulation on the plaintiff to temporarily relieve his pain. The following Monday, at plaintiff's behest, Dr. Tettleton arranged an appointment with Dr. Dirk Franzen, a neurosurgeon in Jackson, Tennessee. Dr. Franzen examined plaintiff and recorded his statement that he "had woken up about a week ago with a crick in his neck." More important, Dr. Franzen noted that the history given to him by the plaintiff mentioned no definite inciting events and no injuries. Dr. Franzen subsequently performed surgery on the plaintiff at the C5-6 disc which improved, but did not resolve the symptoms. Dr. Franzen assessed plaintiff's impairment at 11%. Our review is de novo on the record accompanied by a presumption that the findings of fact made by the trial court are correct unless the evidence preponderates otherwise. TENN CODE ANN. _ 5-6-225(e). The plaintiff in a workers' compensation suit has the burden of proving every element of his case by a preponderance of the
Authoring Judge: Robert L. Childers, Special Judge
Originating Judge:Hon. George R. Ellis, |
Workers Compensation Panel | 01/05/98 | ||
| Patricia A. Anderson v. Hartsville Convalescent Center, et al.
01S01-9703-CH-00070
Authoring Judge: William S. Russell, Retired Judge
Originating Judge:Hon. |
Anderson County | Workers Compensation Panel | 12/31/97 | |
| Timothy P. Mullinax v. Wabash Alloys & Cigna Ins. Co.
01S01-9702-CV-00034
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer and its insurer contend the evidence preponderates against the trial court's finding that the employee has a ten percent permanent medical impairment and in favor of a finding that the employee has a five percent medical impairment rating. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, Mullinax, suffered a compensable low back injury on August 3, 1995, when he was hit in the head by a steel beam and knocked ten or fifteen feet onto his back. He was referred by the employer to a chiropractor, who referred him to Dr. Verne Allen for treatment of pain in his left shoulder and arm, low back pain and problems with his hips and legs. The doctor ordered an MRI and myelogram, restricted him from lifting more than forty pounds occasionally or twenty pounds repetitively, and assessed his permanent medical impairment at five percent to the whole body, without performing any range of motion tests. He told the claimant there was nothing anybody could do for him. The claimant was referred, apparently by his attorney, to Dr. Robert Barnett, for examination and evaluation. After considering the claimant's history, results of scientific tests and range of motion tests, Dr. Barnett restricted the claimant from any heavy lifting, repetitive lifting, bending, stooping, bending or squatting, and assessed his permanent impairment at ten percent to the whole body. Both doctors based their opinions on appropriate guidelines and both are eminently qualified experts in their fields of specialty. Dr. Allen is board certified in neurological surgery, Dr. Barnett in orthopedic surgery. The trial judge accepted the opinion of Dr. Barnett and rejected that of Dr. Allen. Appellate review of a finding of fact in a workers' compensation case is de novo upon the record of the trial court, accompanied by a presumption of correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Accordingly, we have conducted an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Allen Wallace, |
Humphreys County | Workers Compensation Panel | 12/31/97 | |
| Wallace Palmore v. Frito-Lay, Inc., et al.
01S01-9610-CV-00204
Authoring Judge: William S. Russell, Retired Judge
Originating Judge:Hon. |
Lawrence County | Workers Compensation Panel | 12/16/97 | |
| Jackson Bradley v. Loretto Casket Company, et al.
01S01-9701-CH-00016
Authoring Judge: William S. Russell, Retired Judge
Originating Judge:Hon. |
Bradley County | Workers Compensation Panel | 12/16/97 | |
| Craig Ring v. Ckr Industries, Inc., et al.
01S01-9702-CV-00031
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 defendants, CKR Industries, Inc. and The Yasuda Fire & Marine Insurance Company of America, appeal the judgment of the trial court in finding the plaintiff, Craig Ring, sustained a compensable work-related injury and awarding permanent partial disability of twenty-five percent (25%) to the left arm. For the reasons stated in this opinion, we affirm the judgment of the trial court. The plaintiff, Craig Ring, was 26 years of age at the time of this trial. He has a GED, no specialized job training, and a prior history of factory production work. Plaintiff worked for defendant, CKR Industries for 4 years prior to Au gust 3, 1994 , when he reported an injury to his left index finger and arm. He operated a press or machine at that time which required repetitive movement of both arms. Dr. Mary Ellen Clinton, a board certified neurologist, examined and treated plaintiff after he had been seen and referred by numerous doctors. She gave various possible causes of plaintiff's problem, but stated his condition was not work-related. Plaintiff was seen by Dr. Richard Fishbein, a board certified orthopedic surgeon, for the purpose of an ind ependent me dical evaluation. Dr. Fishbein was of the opinion the plaintiff's condition was ulnar neuropathy caused by his repetitive work. He assessed a permanent partial impairment of fifteen percent (15%) to the left upper extremity and assigned work restrictions of no lifting of more than 2 pounds on a regular basis and n o more than 5 pounds on a very infrequent basis. Plaintiff testified he really did not know how or when he hurt his finger and arm, but they first became painful at wo rk on Augus t 3, 1994. At trial, he comp lained of constant pain in his left elbow and numbness in the tip of his left index finger. Because of his work restrictions, he has been transferred to a lighter job at less pay. Plaintiff has taken up go lf, built a deck on his house, and raced four wheelers since August, 1994. At trial, the parties stipulated the date of the injury, notice, all medical bills and temporary total disability payments had been paid, and the appropriate weekly compensation 2
Authoring Judge: William S. Russell, Retired Judge
Originating Judge:Hon. J. Curtis Smith, |
Smith County | Workers Compensation Panel | 12/16/97 | |
| Smith v. Zurich
03S01-9701-CV-00004
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 alleged he had sustained permanent impairment as a result of an accident on November 8, 1994, while employed by the defendant. The trial judge dismissed the petition. We affirm the judgment. There is no dispute concerning the occurrence of an on-the-job accident which was a fall by the plaintiff. The only medical evidence in the case was the deposition of Dr. John H. Bell, an orthopedic surgeon. Dr. Bell found the plaintiff had suffered contusions and a sprain of his lower spine as a result of the fall. This was superimposed upon a pre- existing lumbosacral disc disease. Dr. Bell testified there was no anatomic evidence the disc disease was aggravated by the injury, and that the fall caused the pre-existing condition to become painful. Further, the plaintiff had told Dr. Bell he had a previous back pain episode, as well as intermittent back pain prior to the fall. Dr. Bell testified the plaintiff complained of pain but there was no anatomical change associated with the pain. Dr. Bell was of the opinion the back strain had healed. He further testified it is not uncommon for a person with an arthritic or a degenerative condition to be free of symptoms but that these conditions may become symptomatic as a result of an injury. Dr. Bell found the plaintiff had a 5 percent permanent medical impairment because of the condition of his back. Dr. Bell fixed restrictions upon the plaintiff. Dr. Bell testified, however, that he placed these restrictions upon the plaintiff because of the plaintiff's complaint of pain, which Dr. Bell associated with the pre- existing condition rather than the fall. The plaintiff presented lay testimony to support his contention that he was disabled. However, in all but the most obvious cases, there must be medical evidence to show an impairment exists, and its connection to the work injury. 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. Ben K. Wexler, |
Smith County | Workers Compensation Panel | 12/15/97 | |
| Deliinger v. Arnold
03S01-9703-CV-00033
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found plaintiff, James Walter Dellinger, totally disabled and apportioned 4% of the award of disability against his employer, The Arnold Engineering Company, and 6% against the Second Injury Fund. The judgment provided the award of benefits would be payable for a period of 4 weeks. The employer has appealed seeking a ruling that (1) the evidence is not sufficient to establish the employee's back injury was work-related and (2) the apportionment of 4% of the award to the employer is not supported by the evidence. The employee contends the award should be payable until he reaches his 65th birthday rather than for just 4 weeks, which would expire while he would be 63 years of age. Employee Dellinger was injured on June 14, 1994, while removing a lid from a "ball mill". He testified he was using a large pipe wrench and it slipped and struck him; this caused him to fall into a catwalk when he struck his side. He said that after the incident, he was hurting all over his body and he sought treatment for his back and side at the hospital emergency room. Plaintiff testified he had worked for his employer for twenty years and he generally worked ten to twelve hours a day, seven days a week. He was 55 years of age at the time of his injury and he had completed the third grade. He cannot read and writes very little. His job duties appear to involve a great deal of physical activity and exertion. He told the trial court he notified his supervisor, Johnny Ogle, and Darrell Adams, the production manager, how he was injured. The emergency room physician felt he had suffered a strain and recommended he return to work despite the fact plaintiff showed the doctor a knot or bulge on his stomach. The record is quite clear that he had a number of pre-existing medical problems which would appear to affect his employability to some extent. He suffered from Paget's disease which affected the bones in his hips and knees and caused complaints of pain, etc. He had diabetes, a heart murmur and high blood pressure. He had suffered prior work-related injuries: three broken ribs, broken finger and a 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. William R. Holt, Jr., |
Knox County | Workers Compensation Panel | 12/08/97 | |
| Dennis Hodge v. M. S. Carriers, Inc.
02S01-9611-CV-00098
This worker's 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) (1996 Supp.) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer, M. S. Carriers, Inc., contends: (1) that Mr. Hodge, the Plaintiff did not meet his burden of proving by a preponderance of medical evidence that he had any permanent disability to his lower back because of the alleged work accidents; (2) that the trial court erred in applying a multiple of four times plaintiff's anatomical impairment rating, given plaintiff's age, extensive vocational history and current employment.
Authoring Judge: Don R. Ash, Special Judge
Originating Judge:JUDGE ROBERT L. CHILDERS |
Shelby County | Workers Compensation Panel | 12/08/97 | |
| Crowder v. Magic
03S01-9702-CH-00023
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 Employee sustained a herniated disk and underwent two lumbar disk surgeries in 1995. The trial court found the back problem was work related and awarded 35 percent permanent partial disability. We affirm the judgment of the trial court. The Employee is now thirty six years old with seven years of formal education. He has fourteen years work experience in factory assembly for this Employer. Prior to that, he worked at a chicken farm and helped his father cut paper wood. On May 4, 1995, he bent over a box at work and felt something "pop" in his low back. He went to the nurse's station, where a "deep heating rub" was applied and he was given an ice pack. He then went back to work, and he continued to work full time until July 1995. In early July, after returning from the July 4th holiday, he experienced increased low back pain and went to the nurse at work again, where he received another deep heating rub. He testified that the pain in his lower back just kept getting worse and started going down his leg, so that he was unable to walk. On July 23, 1995, he went to his family doctor because of the back pain, but he did not tell the doctor about his injury at work. On August 2, 1995, the Employee was involved in an automobile accident and was treated by the same family doctor. When his back pain did not improve, the Employee had an MRI of his lower spine on September 1, 1995. The MRI revealed "a large posterior herniated disc eccentric to the left at the 5-1 level with encroachment into the central canal with AP narrowing as well as eccentric encroachment into the neuroforamina and nerve root on the left." There were also degenerative disc changes. The Employee testified that he was referred to an orthopedic surgeon and, when he discussed his work history and recent activities with the surgeon, they realized that the herniated disk was work related. He immediately reported this to his Employer. 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. Earl H. Henley, |
Knox County | Workers Compensation Panel | 12/01/97 |