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| Pamela Sue Higgins v. Angelica Corporation
02S01-9605-CV-00050
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 to the Supreme Court of findings of fact and conclusions of law. Defendant appeals from the trial court's award of 45 per cent (45%) permanent partial vocational disability of each arm, following surgery on each wrist for carpal tunnel syndrome. Defendant raises three (3) issues, that the plaintiff's injuries are not causually related to her employment and therefore, not compensable; that the plaintiff did not give proper notice as required by Tenn. Code Ann. section 5-6-21; and that the preponderance of the evidence does not support the trial judge's finding that the plaintiff suffered a 45 per cent (45%) permanent partial vocational disability to each arm. The panel has concluded that the judgment of the trial court should be affirmed. The employee, Ms. Pamela Sue Higgins, is thirty-eight (38) years old, quit school in the eighth (8th) grade, and she has performed sewing work for different manufacturers for twenty (2) years. Ms. Higgins began her employment with Angelica on January 14, 1991. Shortly after going to work for Angelica she was seen by Doctor James H. Thomas, a family practitioner, with the specific complaint that her right wrist had hurt for five (5) days. Approximately two and one-half (2 l/2) months later she returned to Doctor Thomas with the same complaint. Doctor Thomas soon concluded that her problem was carpal tunnel syndrome in nature and referred her to Doctor L. David Johnson, an orthopaedic surgeon, for treatment. After treating her conservatively, excluding other possible causes of her symptoms, and based upon electrodiagnostic studies performed by Doctor Ron Bingham, on May 13, 1991, Doctor Johnson diagnosed her as having moderate carpal tunnel syndrome on the right, and severe carpal tunnel syndrome on the left. Doctor Johnson subsequently performed carpal tunnel surgeries on both right and left wrists. She was also seen by Doctors Cohn and Cramer, and Pechacek, in consultation, in the process of eliminating other causes for her symptoms and confirming her diagnosis. Doctor 2
Authoring Judge: Leonard W. Martin, Special Judge
Originating Judge:Hon. C. Creed Mcginley |
Hardin County | Workers Compensation Panel | 04/17/97 | |
| James Clifford Tatum v. Methodist Health Systems, et al
02S01-9609-CH-00079
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 to the Supreme Court of findings of fact and conclusions of law. The director of the Workers' Compensation Division of Tennessee Department of Labor, as trustee for the Second Injury Fund (Second Injury Fund), appeals from the decision of the trial court. The court approved, over the objection of the Second Injury Fund, a settlement agreement between the employee, James Clifford Tatum, and the employer, Methodist Health Systems (Methodist Hospital of Dyersburg, Inc.), limiting the employer's liability to benefits based on 31 per cent (31%) permanent partial disability to the whole body. The claim against the Second Injury Fund was reserved until trial. The trial of the case was between the employee and the Second InjuryFund. Subsequently, at trial, the trial court found the employee to be permanently and totally disabled and held the Second Injury Fund liable for 6 per cent (6%) of that total disability. Because the court erred in approving the settlement over the objectionof the Second Injury Fund, the panel concludes that both judgments should be set aside, and the case remanded for a new trial on all issues. The trial court recognized its error and stated in its memorandum opinion of April 29, 1996, as follows: "This settlement was approved over the objection of the Fund. In retrospect, the Court should not have approved the settlement over the objection of the Fund, but should have tried both claims together." However, the trial court apparently believed that it had cured its error. We conclude otherwise. In a very recent case decided by the Supreme Court on December 23, 1996, the court reasoned as follows: Here, the trial court approved a settlement concerning the 2
Authoring Judge: Leonard W. Martin, Special Judge
Originating Judge:Martin, Judge |
Dyer County | Workers Compensation Panel | 04/17/97 | |
| Jack v. Delany
02S01-9608-CH-00073
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 to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer questions the award of permanent partial disability benefits as being excessive. As discussed below, the panel has concluded the judgment should be modified. The employee, Scott, is forty-seven (47) years old, and has an eighth (8th) grade education. He has farmed and worked at a cotton gin. He has no specialized skills or training. He has an I.Q. of sixty-five (65) and a severe speech impediment. He worked for the defendant employer for twenty-two (22) years. During the course of his employment, he has performed various jobs and was operating a scrubber at the time of his injury. The employee was injured at work on June 4, 1994, when he was getting off of the scrubber and fell. He testified that he hurt his neck, back, and left shoulder. He was first seen by Doctor Michael Heck, who prescribed medication and returned him to work on light duty. He was then seen by Doctor Stewart, who returned him to regular duty with the defendant. Doctor Riley Jones treated the plaintiff and opined that he had a 1 per cent (1%) anatomical impairment to the left upper extremity. Dr. Jones gave him no impairment rating for his back and sent him back to regular duty. Dr. Robert Paul Christopher saw the plaintiff on July 24, 1995, for an independent medical evaluation. He opined that the plaintiff had a 1 per cent (1%) impairment to the left upper extremity, a 6 per cent (6%) impairment as a result of injury to the cervical spine, translating to a combined rating of 12 per cent (12%) to the body as a whole. 2
Authoring Judge: Leonard W. Martin, Special Judge
Originating Judge:Hon. J. Steven Stafford, |
Scott County | Workers Compensation Panel | 04/17/97 | |
| David Davison v. Tfe, Inc., et al
02S01-9609-CV-00078
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer and its insurer argue the employee did not suffer an injury by accident as claimed. As discussed below, the panel has concluded the judgment should be affirmed. For the past thirty-three years, the employee or claimant, Davison, has been an over-the-road truck driver. He worked for the employer, TFE, from July 14, 1988 until June 2, 1994. On June 2, 1994, while attempting to load some boxes that had fallen from his truck while others were being unloaded, he felt a burning sensation in his back and leg. He had not felt the leg pain before but had suffered a previous back injury. He was given nerve blocks for the second injury, without relief. When the pain persisted, he visited Dr. Joseph S. Thomas, a general practitioner, and Dr. Robert Barnett, an orthopedic surgeon. Dr. Barnett diagnosed an aggravation of a pre-existing degenerative condition. The same doctor had seen the claimant before the second injury and opined that the new symptoms were the result of an irritated nerve root. The record does contain other medical opinions. Dr. Cunningham, a neurosurgeon, opined the claimant was not permanently impaired from the 1994 injury, but did not rule out the occurrence of an injury. Dr. Frazier assigned a permanent impairment rating but attributed it to the previous injury. The claimant has not returned to work. He testified that he is unable to work because of pain that he did not have prior to the 1994 accident. The trial judge gave the greatest weight to the opinion of Dr. Barnett and found the injury to be compensable as an injury by accident. 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. section 5-6-225(e)(2). Where the trial judge has seen and heard the witnesses, especially ifissues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). When medical testimony differs, it is within the discretion of the trial judge to determine which expert testimony to accept. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675 (Tenn. 1983). 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. C. Creed Mcginley, |
Hardin County | Workers Compensation Panel | 04/17/97 | |
| Norma Gail Flowers v. Emerson Motor Co.
02S01-9609-CH-00083
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer, Emerson Motor Company, contends the award of permanent partial disability benefits is excessive. The panel has concluded the judgment should be affirmed. The claimant, Flowers, is 43 years old and a high school graduate. She has a certificate as a nursing assistant, but no other vocational training or education. She has worked continuously for the employer since 1972, in a variety of jobs requiring repetitive use of her hands. On December 6, 1993, the claimant slipped and fell at work, landing on the palms of her hands. Although her wrists and hands had bothered her before the fall, she was not disabled and had not seen a doctor. Following the fall, she saw Dr. Ronald Bingham, who ordered NCS/EMG studies and diagnosed bilateral carpaltunnel syndrome, moderate on the left and moderate to moderately severe on the right. Another doctor diagnosed, in addition to bilateral carpal tunnel syndrome, carpometacarpal subluxation and arthritis of the right thumb. Her carpal tunnel syndrome was found to be caused by repetitive use of her hands and wrists at work and the subluxation caused and the arthritis aggravated by the fall at work. Dr. Bourland assigned a permanent impairment rating of 15.8% to the claimant's right arm and none to the left. Dr. Joseph Boals assigned permanent impairment ratings of 2% to each arm. She is unable to perform her former duties for the employer and has pain and numbness in both hands. She cannot operate a keyboard. One vocational expert estimated her industrial disability at 6-65%; another opined she would be eligible for fewer than 25% of all available jobs. The chancellor awarded permanent partial disability benefits based on 5% to both arms. 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. section 5-6-225(e)(2). The extent of an injured worker's disability is an issue of fact. Jaske v. Murray Ohio Mfg. Co., 75 S.W.2d 15 (Tenn. 1988). The extent of an injured worker's vocational disability is a factual 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. George R. Ellis, |
Gibson County | Workers Compensation Panel | 04/17/97 | |
| Hubert Holcomb, Jr. v. Aetna Life & Casualty Co.
02S01-9610-CH-00091
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer's insurer questions the allowance of certain credits to the Second Injury Fund (the Fund). As discussed below, the panel has concluded the judgment should be affirmed. It is undisputed that the employee or claimant, Holcomb, is permanently and totally disabled from a compensable injury by accident, that his compensation rate is $294. per week and that the maximum total benefit in effect on the date of the injury was $117,6. ($294. x 4 weeks). It is also undisputed he has received from the employer's insurer temporary total and temporary partial disability benefits totaling $32,121.82 and permanent disability benefits totaling $11,76.. From a previous compensable injury, the claimant was awarded permanent partial disability benefits equating to an award based on 21.875 percent to the body as a whole, or 87.5 weeks. Thus, under Tenn. Code Ann. section 5-6-28(b)1, the Fund's maximum liability is $294. for 87.5 weeks ($25,725.5), less any credit to which it may be entitled for payments already made by the employer or its insurer. The trial court gave the Fund credit against its liability for $25,725. of temporary disability benefits, thus holding the Fund had no further liability. It allowed the employer's insurer credit against any further liability for disability payments already made in excess of that number. Conclusions of law are subject to de novo review without any presumption of correctness. Presley v. Bennett, 86 S.W.2d 857 (Tenn. 1993). Compensable disabilities are divided into four separate classifications: (1) temporary total disability, (2) temporary partial disability, (3) 1 T.C.A. 5-6-28(b)(1)(A) In cases where the injured employee has received or will receive a workers' compensation award or awards for permanent disability to the body as a whole, and the combination of such awards equals or exceeds one hundred percent (1%) permanent disability to the body as a whole, the employee shall not be entitled to receive from the employer or its insurance carrier any compensation for permanent disability to the body as a whole that would be in excess of one hundred percent (1%) permanent disability to the body as a whole, after combining awards. (B) Benefits which may be due the employee for permanent disability to the body as a whole in excess of one hundred percent (1%) permanent disability to the body as a whole, after combining awards, shall be paid by the second injury fund. (Emphasis supplied) 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. William Michael Maloan, |
Obion County | Workers Compensation Panel | 04/17/97 | |
| Harold E. Mooney v. Brecon Knitting Mills, et al
02S01-9610-CV-00094
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer and its insurer contend the claimant's injury did not arise out of the employment and the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed. The claimant, Mooney, is sixty-six years old and has three years of college and some vocational training. His primary vocation has been that of a traveling salesman. At the time of the accident, he was employed as regional sales manager for the employer and used his car to call on customers. On or about May 2, 1993, he was involved in an accident and received a blow to his chest. It is undisputed that he was on his employer's business at the time of the accident. A cardiologist diagnosed his injury as undiagnosed coronary artery disease exacerbated by chest wall trauma. When conservative care failed to produce the desired result, surgery was performed. The operating surgeon assigned a permanent impairment rating of from thirty to fifty percent and advised the claimant to retire. A vocational expert opined the claimant had a vocational opportunity decrease of ninety percent. He has not returned to work. The parties agreed to bifurcate the trial. After the first bifurcated trial, the trial judge found the claimant's injury to be compensable. After the second bifurcated trial, another trial judge awarded permanent partial disability benefits based on seventy-five 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. section 5-6-225(e)(2). Under the Tennessee Workers' Compensation Law, injuries by accident arising out of and in the course of employment are compensable. Tenn. Code Ann. section 5-6-12(a)(5). An injury is compensable, even though the claimant may have been suffering from a serious pre-existing condition or disability, if a work-connected accident can be fairly said to be a contributing cause of such injury. An employer takes an employee as he is and assumes the risk of having a weakened condition aggravated or exacerbated by an injury which might not affect a normal person. Harlan v. McClellan, 572 S.W.2d 641 (Tenn. 1978). 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Kay S. Robilio, |
Shelby County | Workers Compensation Panel | 04/17/97 | |
| Anita Gardner v. World Color Press, Inc.
02S01-9609-CH-00081
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 to the Supreme Court of findings of fact and conclusions of law. The issue presented is whether the trial court erred in finding that the plaintiff sustained a 2 per cent (2%) permanent partial disability to both arms. The standard of review 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. R. App. P. 13(d); T.C.A. Section 5-6-225(e)(2). The panel finds that the evidence does not preponderate against the finding of the trial court and concludes that the judgment of the trial court should be affirmed. The employee, Anita Gardner, is thirty (3) years old and has a tenth (1th) grade education. She has obtained her GED and is currently enrolled in Dyersburg State Community College intending to become a nurse. She has worked for McDonalds Restaurant, Taco Casa Restaurant, Roseoco Gas Station and Doubleday Book Company. She went to work for World Color Press, Inc., in 1987. World Color Press prints, assembles and ships magazines. During much of her employment, she worked twelve (12) hours per day, seven (7) days a week. Her duties involved the use of her hands and wrists in a constant, fast paced, repetitive manner for long periods of time. In May of 1994, the plaintiff injured her left wrist (she is left handed), while using a manual banding device in the shipping department. In August of 1994, she began having trouble with her right wrist while working in the quality control 2
Authoring Judge: Leonard W. Martin, Special Judge
Originating Judge:Hon. Joe G. Riley, |
Dyer County | Workers Compensation Panel | 04/17/97 | |
| Ronald Wayne Hill v. Eagle Bend Manufacturing, Inc. and Transportation Insurance Company
03S01-9511-CH-00123
Campbell County finding the plaintiff, Ronald Wayne Hill, to be permanently and totally disabled. The Special Workers' Compensation Appeals Panel, upon reference for findings of fact and conclusions of law pursuant to Tenn. Code Ann. _ 5-6-225(e)(5) (Supp. 1996), found that Hill had suffered only an increase in pain, not a compensable injury by accident, and dismissed the case. Thereafter, Hill filed a motion for full court review of the Panel decision pursuant to Tenn. Code Ann. _ 5-6-225(e)(5)(B) (1996 Supp.). We granted the motion for review to determine whether Hill suffered a work-related injury by accident which would entitle him to receive workers' compensation benefits for the physical impairment and for any related mental disorder. After carefully examining the record before us and considering the relevant authorities, we affirm the trial court's finding that Hill suffered a work-related injury by accident which rendered him totally and permanently disabled.
Authoring Judge: Frank F. Drowota, III
Originating Judge:Hon. Billy Joe White, |
Knox County | Workers Compensation Panel | 04/07/97 | |
| Michael Eugene Smith v. Goodyear Tire & Rubber Co With Order
02S01-9603-CH-00037
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends the award of permanent partial disability benefits is excessive and, particularly, that the award exceeds the limitation contained in Tenn. Code Ann. section 5-6- 241(a)(1). As discussed below, the panel has concluded the award should be affirmed. The employee or claimant, Smith, is forty-seven and a high school graduate. He has worked for Goodyear since 1969, at several different jobs, all involving manual labor. On May 13, 1994, he injured his back lifting. The claimant was referred to an orthopedic surgeon, who diagnosed a central disc herniation at L5-S1, which was surgically repaired bilaterally. As a result of the injury and surgery, he can lift only 3 pounds frequently and 5 pounds occasionally. He is further limited in his bodily activities and has a permanent medical impairment of ten percent to the whole body. The operating surgeon testified that the claimant is medically disqualified from returning to his pre-injury job or any other one which would require heavy lifting or painful activity. When the claimant returned to work after a period of recuperation, he was offered a choice of jobs. The one he accepted was within his limitations, but he receives a lower hourly wage than he was earning before the injury. He continues to have pain and stiffness from working. The chancellor awarded permanent partial disability benefits on the basis of forty 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. section 5-6-225(e)(2). For injuries occurring after August 1, 1992, in cases where and injured worker is entitled to permanent partial disability benefits to the body as a whole and the pre-injury employer returns the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability award the employee may receive is two and one-half times the medical impairment rating. Tenn. Code Ann. section 5-6-241(a)(1). If the offer of return employment is not reasonable in light of the circumstances of the employee's physical disability to 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. William Michael Malone, |
Smith County | Workers Compensation Panel | 04/01/97 | |
| Michael Eugene Smith v. Goodyear Tire and Rubber Company
02S01-9603-CH-00037
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. In this appeal, the employer contends the award of permanent partial disability benefits is excessive and, particularly, that the award exceeds the limitation contained in Tenn. Code Ann. section 5-6- 241(a)(1). As discussed below, the panel has concluded the award should be affirmed.
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. William Michael Maloan, |
Smith County | Workers Compensation Panel | 04/01/97 | |
| Everlyn Hicks v. Tennessee Dept. of Labor, et al
02S01-9607-CH-00067
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employee, Hicks, contends the evidence preponderates against the trial court's finding that she is less than permanently and totally disabled from her work-related accident and that the trial court erred in not applying Tenn. Code Ann. section 5-6-28(a). As discussed below, this panel concludes the trial court should be affirmed in both respects The employee or claimant is sixty-two years old and has an eighth grade education. She has worked for the employer, Harmon Automotive, since 1973. In 1983, she injured her hand at work and received an award of permanent partial disability benefits. Her present claim grows out of a second injury suffered by her on May 6, 1993, when she injured her back while lifting a box of mirror bases. As a result of this injury, she received back surgery and was released to return to light duty work in January of 1994. She did return to work in May of the same year, when light duty work became available. In the same month, she again injured her back. She testified that she is no longer able to work. She has settled with her employer and that settlement is not involved in this appeal. The chancellor found the claimant to be less than permanently and totally disabled and dismissed her claim against the Second Injury Fund. 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. section 5-6-225(e)(2). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Presley v. Bennett, 86 S.W.2d 857 (Tenn. 1993). 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. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). An employee who has previously become disabled from any cause and who, as a result of a later compensable injury, becomes permanently and totally disabled, may receive disability benefits from his or her employer only for the disability that would have resulted from the subsequent injury. Tenn. Code 5-6-28, Cameron v. Kite Painting Co., 86 S.W.2d 41 (Tenn. 1993). However, such employee may be entitled to recover the remainder of the benefits allowable for permanent total disability from the Second Injury Fund. Id. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Dewey C. Whitenton, |
Hardeman County | Workers Compensation Panel | 04/01/97 | |
| Guy Brewer v. City of Waynesboro
01S01-9607-CV-00150
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 appeals from the trial court's dismissal of his complaint for workers' compensation benefits for lack of notice. We affirm the judgment of the trial court. Plaintiff testified that he injured his back on May 6, 1993, while unloading 5- pound bags of chemicals in the course of his employment as water plant operator for the City of Waynesboro. He testified that his back began to hurt that evening and then continued to get worse. He testified that he informed Flora Locker, the city recorder, and Howard Riley, public works director, that he had hurt his back at work within two weeks of his injury. He further testified that Riley provided him with someone to assist him with lifting about two weeks after his May 6, 1993 injury. Flora Locker testified that the plaintiff told her he hurt his back lifting bags of chemicals, but she was uncertain when he told her except that it was before his July 14, 1993 fall. She testified that she did not make a report of it because it was more than ten days after the accident, which was the time limit she had been told for reporting accidents; however, she also testified that he never told her when he had hurt his back. Howard Riley denied ever having received notice from the plaintiff. A co- worker, David Maples, testified that Steve Colley, the city manager, told him about two weeks after May 6, 1993, to make sure that plaintiff did not have to do any lifting at work because plaintiff was having problems with his back. Plaintiff first went to Dr. J.V. Mangubat, a general practitioner and surgeon, for treatment. Dr. Mangubat testified by deposition that plaintiff first complained of pain in his left hip radiating down his left leg in April 1993, which he attributed to arthritis. He saw plaintiff again on May 6, 1993 to remove sutures from a previous in- office excision. Plaintiff did not complain of back or leg pain at the time. Plaintiff returned on June 3, 1993, complaining of pain in both hips radiating down both legs with some 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Jim T. Hamilton, |
Wayne County | Workers Compensation Panel | 03/24/97 | |
| United States Fidelity & Guaranty and Paraclesius Healthcare, Inc. v. Holly Scott
01S01-9607-CH-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. I This action was filed by the employer and its insurer as one for declaratory judgment that "this case needs to be heard by the Court to determine the respective rights of the parties pursuant to the Tennessee W orkers' Compensation Act," since the employee was claiming a back injury sustained while assisting a patient during the course of her employment by Clay County Hospital. The defendant answered and counter-claimed, stating that she attempted to keep a patient from falling from a bed as a result of which she injured her back. The Chancellor found that the accident occurred as alleged, as a result of which the defendant was 7% vocationally disabled and awarded benefits accordingly. The plaintiffs appeal and present for review (1) whether the finding of 7% disability is excessive; (2) whether the multiplier was exceeded, (3) whether a partial lump sum was properly awarded. II The defendant is a 38-year-old licensed practical nurse and a certified nurse's aide. She was assisting a patient at home who rolled from bed and both of them hit the floor. As stated by the employer, the only issues litigated were the extent of permanent partial disability and the requested commutation of the award to a lump sum. She testified that she could no longer perform the duties of an LPN. Dr. Ray Hester, a neurosurgeon, testified that he initially saw the defendant on September 14, 1993. She complained of back pain and he later determined that she had a ruptured disc which surgery would not correct. Weight restrictions were imposed. He opined that she had a 5% impairment for thoracic strain and disc 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Vernon Neal, |
Clay County | Workers Compensation Panel | 03/24/97 | |
| Willie Banks v. Meridan Insurance Co.
01S01-9509-CV-00159
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 reported that he had injured his back on May 4, 1993. The trial judge found the plaintiff had failed to show by a preponderance of the evidence that he had sustained a permanent impairment and dismissed the complaint. We affirm the judgment of the trial court. The undisputed evidence shows the plaintiff suffered from spinal stenosis, a manifestation of the aging process, which is normal for a person of the age of 62, the age of plaintiff. The material evidence consists of the deposition testimony of Dr. Roger Ray, a neurosurgeon, and a CT scan done at Crockett Hospital. Dr. Ray, when asked on direct questioning, testified the plaintiff sustained a ten percent whole body impairment as a result of the alleged back injury. The finding was based upon the testing given to him and upon his evaluation of the plaintiff and review of the CT scan report. On cross-examination, Dr. Ray testified he did not use the 4th Edition of the AMA Guides to determine the disability of the plaintiff, but testified he thought he used the 3rd edition. Dr. Ray's testimony was less than clear on whether he used any edition of the Guidelines. The ultimate outcome of the testimony of Dr. Ray and the finding of the CT scan is that the plaintiff suffered from spinal stenosis, which was not caused by the injury at work. At most, the injury only caused the plaintiff to suffer pain. The plaintiff was released by Dr. Ray to return to work without any limitations. From the record, we find the plaintiff suffered from an underlying condition that was not caused by the employment. At most, the plaintiff has, by his own report, suffered only pain. There is no evidence the employment caused any progression or aggravation of the underlying condition, but only caused pain. This is not compensable. Cunningham v. Goodyear Tire and Rubber Co., 811 S.W.2d 888 (Tenn. 1991). See also Townsend v. State, 826 S.W.2d 434 (Tenn. 1992). 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. William B. Cain |
Lawrence County | Workers Compensation Panel | 03/24/97 | |
| Equity Group, Tennessee v. Sherri Leslie
01S01-9606-CH-00125
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 issue is whether the trial court erred in awarding the plaintiff benefits for a disability to her right leg. The plaintiff alleged and the court found that she injured her left knee on July 22, 1993 resulting in disability for which benefits were awarded, not here questioned. Nine months later, in April, 1994, she alleged that during the course of her employment her left knee collapsed, causing her to fall on her right knee resulting in a disabling injury. In the course of time she sought benefits for disability to both knees. The trial court found that both injuries were compensable, and awarded benefits based on 55 percent disability to the left knee and 4 percent to the right knee. The employer argues that the evidence falls short of proving that the plaintiff suffered an injury by accident to her right knee, and that the court's reliance on the testimony of Dr. Roy C. Terry was misplaced because he was not credibly informed. Dr. Terry testified that the right knee injury "could be" related to the July, 1993 injury. From this testimony the defendant extrapolates the argument that Dr. Terry assumed both knee problems arose in 1993, contrary to the testimony of the plaintiff that she injured her right knee in 1994. The argument continues that "could be" testimony alone is not sufficient; that there must be, at least, corroborating lay testimony. This is a correct legal assertion. See Livingston v. Shelby Williams, 811 S.W.2d 511 (Tenn. 1991). But there is corroborative lay testimony in this record. As stated above, the plaintiff testified that her left knee collapsed, causing her to fall on her right knee. It is true that she gave confusing, perhaps conflicting accounts of the episode, but the Chancellor, and not us, is the arbiter of her credibility, and of the weight to be accorded her testimony. See Walls v. Magnolia Truck Lines, 622 S.W.2d 526, 528 (Tenn. 1981). 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Irvin H. Kilcrease, Jr., |
Davidson County | Workers Compensation Panel | 03/24/97 | |
| James K. Ringrose v. Saturn Corp.
01S01-9607-CH-00141
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. Plaintiff sustained deQuervain's disease, an inflammatory condition which first manifested itself in November, 1992, while doing repetitive factory work for defendant. The trial court awarded 1 percent permanent partial disability to the right upper extremity for his right wrist injury. The plaintiff also developed an impingement injury to his right shoulder in August 1993. The trial court awarded 1 percent permanent partial disability to the body as a whole for this injury. We affirm the judgment of the trial court. Plaintiff first reported severe pain in his right wrist to the medical department of the employer on November 9, 1992. He was given an over-the-counter anti- inflammatory medication and a wrist splint. He went back to work. He returned to the medical department on January 28, 1993 with continuing complaints of pain. He was given a wrist splint and placed on work restrictions. Soon thereafter, the employer referred plaintiff to Franklin Bone and Joint Clinic, where he was given a corticosteroid injection in his right hand. He was told to wear a thumb splint and to temporarily avoid gripping with his right hand. On August 26, 1993 Plaintiff sustained an injury to his right shoulder, while pushing and pulling auto doors. The employer's medical department provided pain medication, ice packs and on-site physical therapy, then referred him to Dr. Jeffrey Cook, a board-certified orthopedic surgeon. Dr. Cook treated plaintiff from November 18, 1993 until April 11, 1995. He surgically removed the end of plaintiff's collar bone, bone spurs and scar tissue. On April 11, 1995, plaintiff told Dr. Cook that he was transferring to a position which would not require repetitive motion. Dr. Cook assessed no permanent disability, although he also opined that Dr. Gaw had seen plaintiff more recently, and therefore if Dr. Gaw thought plaintiff had 5 percent disability he would not disagree. 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Donald P. Harris, |
Williamson County | Workers Compensation Panel | 03/24/97 | |
| Thomas Hickman v. Liberty Mutual Insurance Co.
01S01-9606-CV-00117
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. Plaintiff injured his back on April 29, 1994 while repairing a forklift truck for the employer, Richland, Incorporated. The trial judge awarded him 12-1/2 percent permanent partial disability. He appeals, asserting that the amount of disability should not have been based on the medical report of the first treating physician and that the two and one-half multiplier cap in TENN. CODE ANN. _ 5-6-241 should not have been applied under the facts of this case. We affirm the judgment of the trial court. Plaintiff sustained injury to his back on April 29, 1994 while lifting a cylinder head from a forklift truck. Medical records of Dr. Vaughan Allen, designated as Exhibit 1 to the Deposition of Dr. Earl M. Jeffres, indicate that plaintiff was first treated by Dr. Charles D. Haney, who prescribed medications and rest. When plaintiff did not improve, he was referred by the employer to Dr. Allen. In May of 1995 he was sent by his attorney to Dr. Earl M. Jeffres. The plaintiff first raises the issue that: "The trial court erred in basing its decision on the written report of a non-testifying physician [Dr. Allen] and rejecting the testimony of the only medical expert [Dr. Jeffres]." Dr. Allen's treatment records of May 24, 1994 and May 27, 1994 revealed that plaintiff had a loss of range of motion of his low back, muscle spasm and a straight leg raise test that was positive for lumbar injury. X-ray revealed a central disc protrusion. Plaintiff was taken off work and placed on physical therapy for four weeks. On June 28, 1994, plaintiff returned to Dr. Allen, stating that he was "better but not well." He told Dr. Allen that there was "absolutely no light duty and that he works at very heavy machines . . . " In light of this assertion by the patient, Dr. Allen advised him to continue the chronic exercise program and return for a re-check in two months. Allen further opined that "Certainly, if there is light duty he could start 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Jim T. Hamilton, |
Hickman County | Workers Compensation Panel | 03/24/97 | |
| State of Tennessee v. Jimmy Cullop, Jr.
03C01-9607-CR-00281
The defendant, Jimmy Cullop, Jr., was convicted of possession of contraband while in jail under Tennessee Code Annotated _ 39-16-21. The trial court imposed a Range I, four-year sentence. The sentence was ordered to be served consecutively to his prior sentence.
Authoring Judge: Gary R. Wade, Judge
Originating Judge:Hon. R. Jerry Beck, Judge |
Sullivan County | Workers Compensation Panel | 03/18/97 | |
| David B. Mase v. Coca-Cola Enterprises, Inc.
03S01-9605-CV-00054
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. Defendant, Coca-Cola Enterprises, Inc., has appealed from the trial court's action in awarding plaintiff, David B. Mase, 35% permanent partial disability to the body as a whole. The employer contends the trial court was in error in ruling it liable for the compensable injury as opposed to applying the Last Injury Rule, which would have fixed liability against the employee's last employer. An issue is also raised as to whether the trial court was in error in awarding an amount of disability which was in excess of 2_ times the medical impairment rating. Plaintiff was 3 years of age at the time of the trial and had completed the 12th grade. He testified he was injured while working on October 15, 1993, when he was stacking twelve-pack cartons of drinks at a customer's business; that he experienced pain in his left hip and leg; he was referred by his employer to Dr. Don King, who treated him with medication and therapy; he was released to return to work on November 12, 1993, and returned to the same job at the same rate of pay; he told the trial court he did not feel able to work but attempted to do so anyway. Plaintiff was terminated by defendant on December 2, 1993. There is a conflict in the evidence as to the exact reason for his discharge. Plaintiff testified a supervisor requested that he sign a written statement agreeing he could be terminated if he did not meet certain standards of work; that he told the company official that he would not sign the statement because his physical condition would not permit him to comply with the statements and that he was terminated for failing to execute the statement. The record indicates that during 1992 and 1993 plaintiff had been warned a number of times by his employer that his performance on the job was not satisfactory and that he had been tardy in reporting to work often. 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Dale C. Workman, |
Knox County | Workers Compensation Panel | 03/17/97 | |
| Phillip W. Lee v. Shoney's, Inc.
03S01-9606-CH-00067
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 appeal has resulted from a finding by the trial court that Defendant, Charles A. Hixon, was entitled to permanent disability benefits of 17.5% to the body as a whole. The Chancellor was of the opinion the award was limited to 2-1/ 2 times the medical impairment rating of 7% pursuant to T.C.A. _ 5-6-241(a)(1). On appeal the employee has raised numerous issues regarding the limit of the award. It is insisted the court was in error in not applying subsection (b) of the statute, which would fix the limit of the award at 6 times the medical impairment rating; that the court failed to apply subsection (a)(2) which would have permitted an increased award; that the court should have allowed greater benefits pursuant to T.C.A. _ 5-6- 242; that subsection (a)(2) is unconstitutional as it requires an employee to file a new cause of action when the employee may not have received an initial award of benefits prior to the expiration of the one year period of time. The employer, Lea Industries, raises an issue concerning causation of the injury. It is insisted the preponderance of the evidence does not support the trial court's finding the ruptured disc was caused by the incident at work. Employee Hixon is 49 years of age and completed the 9th grade. Most of his work experience has been in the furniture construction industry. On November 6, 1992, he was bending down to pick up some lumber when he felt pain in his back. He was taken to the hospital where he was admitted and stayed for a period of five days. About ten days after being released, he returned to work at the same rate of pay. He told the court he continued to have pain and worked under restrictions of not bending over; and not being on his feet or sitting for long periods of time. He continued like this until July 22, 1993, when he left work saying his physical condition would not permit him to continue. There is no other evidence in the record disputing his reason for leaving his employment. 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Chester S. Rainwater |
Knox County | Workers Compensation Panel | 03/17/97 | |
| David K. Burnette v. The Travelers Ins. Co.
03S01-9607-CH-00074
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This appeal has resulted from a finding by the trial court that plaintiff, David K. Burnette, was entitled to 1 percent permanent disability benef its as a result of his injury on December 18, 1994. Since he had a prior award of disability, the court apportioned the award by directing his employer, Target Stores, to pay 15 percent and the State's Second Injury Fund to pay the remaining 85 percent. The State has appealed insisting the evidence is not sufficient to support a 1 percent disability award and that the apportionment was not proper under TENN. CODE ANN. _ 5-6-28. We agree with this contention and the trial court's judgment as to the extent of permanent disability is modified as hereinafter indicated. Employee Burnette was 37 years of age and dropped out of school in the 11th grade. He later obtained a G.E.D. certificate and worked as a carpenter in the construction industry for about thirteen years. In 1988, while working in California, he sustained work-related injuries which resulted in an award of workers' compensation benefits of 3 percent to the body as a whole. These injuries were two herniated disks in his neck and two herniated disks in his low back. After recovering from surgical procedures, he moved to Tennessee and worked for some period of time with two different fast food businesses. He was employed as an assistant manager at each company. In September, 1992, he began working at Target Stores testifying he was still having pain from his injuries and that he was still taking pain medication. While working at Target, he attempted to further his education by attending classes at Pellissippi State. He did this for several years, but had transferred to the University of Tennessee by the time the case was heard in the trial court. His goal was to obtain a degree in special education and become a special education teacher. The record is not clear as to his status in this endeavor but he said he was still taking basic courses and had not been accepted in the College of Education. 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Frederick D. Mcdonald |
Knox County | Workers Compensation Panel | 03/14/97 | |
| Jerold Seybert v. Ikg Industries, Inc. and Cigna Insurance
01S01-9604-CH-00078
Authoring Judge: William S. Russell, Retired Judge
Originating Judge:Hon. ROBERT S. BRANDT |
Davidson County | Workers Compensation Panel | 03/12/97 | |
| Cynthia J. Bowers Logue v. Leaf, Inc. and Aetna Life and Casualty Insurance Company Brown, Jr.
02S01-9603-CH-00030
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.
Authoring Judge: F. Lloyd Tatum, Special Judge
Originating Judge:Hon. George H. |
Shelby County | Workers Compensation Panel | 03/04/97 | |
| Gwendolyn Chesney v. Knoxville Glove Co. and Cigna Insurance Co.,
03S01-9602-CV-00014
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. In this appeal, the employee contends the evidence preponderates against the trial court's award of permanent partial disability benefits based on twenty-five percent to the body as a whole and in favor of a higher award. As discussed below, the panel has concluded the award should be modified to provide for benefits based on fifty percent to the body as a whole. The employee or claimant, Chesney, is fifty-six years old and has a tenth grade education, with no skills. After working for Knoxville Glove Company for nearly twenty-seven years sewing, piecing, patching and hemming gloves, she developed disabling pain in her neck and right arm. She was referred to an orthopedist, Dr. Burns, who diagnosed cervical strain and radiculopathy caused or aggravated by work and superimposed on pre-existing cervical disc disease. He also ordered nerve testing which revealed right carpal tunnel syndrome. Carpal tunnel surgery was performed but failed to relieve her symptoms. Disc surgery was performed on her neck. The doctor assigned a permanent impairment rating of ten percent to the whole body from the cervical injury and an additional ten percent to the upper extremity from the carpal tunnel syndrome. The claimant is permanently restricted from any work requiring repetitive use of the hands and arms or heavy lifting. A vocational expert estimated her vocational disability at eighty to ninety percent. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Wheeler Rosenbalm, |
Knox County | Workers Compensation Panel | 03/04/97 |