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| Cecelia Teague v. Tecumseh Products Company
02S01-9509-CV-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. _ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Employer appeals from an award by the trial court of thirty percent (3%) permanent partial disability to both upper extremities of employee. Findings of Fact Appellate review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). There were no written findings of fact by the trial court. The statement of evidence contained no findings stated by the trial court at trial, and the transcript contains no written findings of fact, other than a finding of permanent partial disability of thirty percent to both upper extremities. This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe H. Walker, III, Judge
Originating Judge:Hon. Julian P. Guinn, |
Henry County | Workers Compensation Panel | 07/15/96 | |
| Cecelia Teague v. Tecumseh Products Company
02S01-9509-CV-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. _ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Employer appeals from an award by the trial court of thirty percent (3%) permanent partial disability to both upper extremities of employee. Findings of Fact Appellate review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). There were no written findings of fact by the trial court. The statement of evidence contained no findings stated by the trial court at trial, and the transcript contains no written findings of fact, other than a finding of permanent partial disability of thirty percent to both upper extremities. This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe H. Walker, III, Judge
Originating Judge:Hon. Julian P. Guinn, |
Henry County | Workers Compensation Panel | 07/15/96 | |
| Lamonte Pearson v. Day International, Inc, d/b/a Colonial Rubber Works, Inc. and Reliance Insurance Company
02S01-9503-CV-00023
This workers' compensation appeal has been referred to the Special Worker's Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The sole issue for review is the trial court's determination that an amended complaint filed against the Second Injury Fund was barred by the statute of limitations. For the following reasons, we affirm the decision of the trial court. On January 26, 1989, Lamonte Pearson ("Mr. Pearson") injured his back in an automobile accident that was not work related. Mr. Pearson's lawsuit was apparently unsuccessful at trial and no damages were awarded. On March 4, 1991, he again injured his back in the course of his employment with Day International, d/b/a Colonial Rubber Works, Inc. and was treated by the same physician. A complaint for worker's compensation benefits was timely filed on April 15, 1991. The complaint alleged that Mr. Pearson "suffered, and will continue to suffer, temporary total, temporary partial and possibly permanent total disability as a result of this work related injury." His prayer for relief requested an award of "such further temporary total, temporary partial, permanent partial, or permanent total disability and medical expenses to which this Court finds him entitled . . ." A motion to amend the complaint was filed on April 24, 1992, and leave to amend was granted on the same date. An amended complaint adding the Second Injury Fund was filed on May 29, 1992, more than one (1) year after the work related injury. The amended complaint further alleges that Mr. Pearson had previously sustained a permanent physical disability capable of supporting a workers' compensation award if it had arisen out of and in the course of employment and that he had become permanently and totally disabled through the subsequent work related injury. The Second Injury Fund asserted the bar of the statute of limitations. During his deposition in this case, Mr. Pearson's treating physician found him to have a permanent partial disability of 9% to the body as a whole as a result of the non-work related incident and 6% to the body as a whole as a result of the work related incident, or a 12% combined impairment rating under the AMA Guidelines. The trial court found Mr. Pearson to be 1% disabled and apportioned 45% of the award to Colonial and 55% to the Second Injury Fund; the court ruled that recovery against the Second 2
Authoring Judge: Janice M. Holder, Special Judge
Originating Judge:Hon. J. Steven Stafford, Judge |
Dyer County | Workers Compensation Panel | 07/11/96 | |
| Lamonte Pearson v. Day International, Inc, d/b/a Colonial Rubber Works, Inc. and Reliance Insurance Company
02S01-9503-CV-00023
This workers' compensation appeal has been referred to the Special Worker's Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The sole issue for review is the trial court's determination that an amended complaint filed against the Second Injury Fund was barred by the statute of limitations. For the following reasons, we affirm the decision of the trial court. On January 26, 1989, Lamonte Pearson ("Mr. Pearson") injured his back in an automobile accident that was not work related. Mr. Pearson's lawsuit was apparently unsuccessful at trial and no damages were awarded. On March 4, 1991, he again injured his back in the course of his employment with Day International, d/b/a Colonial Rubber Works, Inc. and was treated by the same physician. A complaint for worker's compensation benefits was timely filed on April 15, 1991. The complaint alleged that Mr. Pearson "suffered, and will continue to suffer, temporary total, temporary partial and possibly permanent total disability as a result of this work related injury." His prayer for relief requested an award of "such further temporary total, temporary partial, permanent partial, or permanent total disability and medical expenses to which this Court finds him entitled . . ." A motion to amend the complaint was filed on April 24, 1992, and leave to amend was granted on the same date. An amended complaint adding the Second Injury Fund was filed on May 29, 1992, more than one (1) year after the work related injury. The amended complaint further alleges that Mr. Pearson had previously sustained a permanent physical disability capable of supporting a workers' compensation award if it had arisen out of and in the course of employment and that he had become permanently and totally disabled through the subsequent work related injury. The Second Injury Fund asserted the bar of the statute of limitations. During his deposition in this case, Mr. Pearson's treating physician found him to have a permanent partial disability of 9% to the body as a whole as a result of the non-work related incident and 6% to the body as a whole as a result of the work related incident, or a 12% combined impairment rating under the AMA Guidelines. The trial court found Mr. Pearson to be 1% disabled and apportioned 45% of the award to Colonial and 55% to the Second Injury Fund; the court ruled that recovery against the Second 2
Authoring Judge: Janice M. Holder, Special Judge
Originating Judge:Hon. J. Steven Stafford, Judge |
Dyer County | Workers Compensation Panel | 07/11/96 | |
| Billy Clevinger v. Burlington Motor Carriers, Inc.
03S01-9508-CV-00092
This workers' compensation appeal from the Hawkins County Circuit Court has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 5-6-225(e) (3) (1995 Supp.) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. For the reasons set forth below, we affirm the judgment of the trial court. I. The plaintiff, Billy Clevinger ("employee"), is a resident of Hawkins County, Tennessee. The defendant, Burlington Motor Carriers, Inc., ("employer"), is a trucking company with its principal place of business in Indiana. The employee, who was hired in Tennessee, worked for the employer as truck driver. On December 1, 1993, the employee was driving one of the employer's trucks from Kentucky to Arkansas. While traveling through Tennessee on the way to Arkansas, he was involved in a single vehicle accident. The employee was hospitalized for a short time due to injuries sustained in the accident. He then returned to his home in Hawkins County. On December 28, 1993, the employee signed a document sent to him by the employer's claim adjustor entitled "Agreement to Compensation of Employee and Employer." The form contained the heading "Indiana Workers' Compensation Board, . . . Indianapolis, Indiana." The document included information concerning the date of injury, the type of injury (bruised left arm and strain of lower back), the place of injury, the employee's average weekly wage, and the amount the employee would be receiving as temporary total disability. The form also contained the declaration that " [w]e (employee and employer) have reached an agreement in regards to compensation for the injury sustained by said employee . . . ." The form further indicated that the "terms of the agreement . . . shall be payable . . . until terminated in accordance with the provisions of the Indiana Workers' Compensation/Occupational Diseases Acts." The employee 2
Authoring Judge: Penny J. White, Justice
Originating Judge:Hon. Ben K. Wexler |
Hawkins County | Workers Compensation Panel | 07/10/96 | |
| Billy Clevinger v. Burlington Motor Carriers, Inc.
03S01-9508-CV-00092
This workers' compensation appeal from the Hawkins County Circuit Court has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 5-6-225(e) (3) (1995 Supp.) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. For the reasons set forth below, we affirm the judgment of the trial court. I. The plaintiff, Billy Clevinger ("employee"), is a resident of Hawkins County, Tennessee. The defendant, Burlington Motor Carriers, Inc., ("employer"), is a trucking company with its principal place of business in Indiana. The employee, who was hired in Tennessee, worked for the employer as truck driver. On December 1, 1993, the employee was driving one of the employer's trucks from Kentucky to Arkansas. While traveling through Tennessee on the way to Arkansas, he was involved in a single vehicle accident. The employee was hospitalized for a short time due to injuries sustained in the accident. He then returned to his home in Hawkins County. On December 28, 1993, the employee signed a document sent to him by the employer's claim adjustor entitled "Agreement to Compensation of Employee and Employer." The form contained the heading "Indiana Workers' Compensation Board, . . . Indianapolis, Indiana." The document included information concerning the date of injury, the type of injury (bruised left arm and strain of lower back), the place of injury, the employee's average weekly wage, and the amount the employee would be receiving as temporary total disability. The form also contained the declaration that " [w]e (employee and employer) have reached an agreement in regards to compensation for the injury sustained by said employee . . . ." The form further indicated that the "terms of the agreement . . . shall be payable . . . until terminated in accordance with the provisions of the Indiana Workers' Compensation/Occupational Diseases Acts." The employee 2
Authoring Judge: Penny J. White, Justice
Originating Judge:Hon. Ben K. |
Hawkins County | Workers Compensation Panel | 07/10/96 | |
| Sherry Lawrence v. Erin Truckways, Ltd. d/b/a Digby Truck Line, Inc., and The Travelers Insurance Company
01S01-9512-CV-00216
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 plaintiff 1% permanent vocational disability. Defendants challenge the trial court's finding of permanent impairment and the trial court's finding of 1% permanent vocational disability. We find that the evidence preponderates in favor of a finding of a compensable permanent injury. We find, however, that the evidence preponderates against an award of 1% permanent vocational disability. W e find the evidence preponderates in favor of a finding of 75% permanent partial vocational disability. We so modify the judgment of the trial court and, as modified, affirm it. Plaintiff, 41, has a tenth-grade education. Her past work history includes work as a waitress, bartender, factory worker and a truck driver. On October 3, 199, plaintiff and her husband were driving for defendant when plaintiff fell from the truck cab as she was trying to open a partially stuck passenger door. She was diagnosed with a sprain to the right upper back and right neck and admitted to the hospital for an unstable diabetic condition. She was also visited by a psychiatrist while at the hospital for depression and sleeplessness. Since her injury, plaintiff has developed chronic pain in her neck and back and eventually in her lower back. She never returned to work for the defendant but, in 1992, she began working as a bartender. She quit after ten months due to pain. Plaintiff was first treated by Dr. Gurumurthy Reddy, an orthopedic surgeon, who diagnosed a neck and upper back strain and noted muscle spasm and limitation of range of motion of the neck. He last saw her on January 31, 1991, when he diagnosed myofascial neck and upper back pain and released her to return to work on a trial basis. Plaintiff was eventually treated by Dr. Dennis Aguirre, an anesthesiologist. He diagnosed fibromyalgia in August 1993. He testified that fibromyalgia is a 2
Authoring Judge: Per Curiam
Originating Judge:Hon. Walter C. Kurtz, |
Lawrence County | Workers Compensation Panel | 07/08/96 | |
| Sherry Lawrence v. Erin Truckways, Ltd. d/b/a Digby Truck Line, Inc., and The Travelers Insurance Company
01S01-9512-CV-00216
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 plaintiff 1% permanent vocational disability. Defendants challenge the trial court's finding of permanent impairment and the trial court's finding of 1% permanent vocational disability. We find that the evidence preponderates in favor of a finding of a compensable permanent injury. We find, however, that the evidence preponderates against an award of 1% permanent vocational disability. W e find the evidence preponderates in favor of a finding of 75% permanent partial vocational disability. We so modify the judgment of the trial court and, as modified, affirm it. Plaintiff, 41, has a tenth-grade education. Her past work history includes work as a waitress, bartender, factory worker and a truck driver. On October 3, 199, plaintiff and her husband were driving for defendant when plaintiff fell from the truck cab as she was trying to open a partially stuck passenger door. She was diagnosed with a sprain to the right upper back and right neck and admitted to the hospital for an unstable diabetic condition. She was also visited by a psychiatrist while at the hospital for depression and sleeplessness. Since her injury, plaintiff has developed chronic pain in her neck and back and eventually in her lower back. She never returned to work for the defendant but, in 1992, she began working as a bartender. She quit after ten months due to pain. Plaintiff was first treated by Dr. Gurumurthy Reddy, an orthopedic surgeon, who diagnosed a neck and upper back strain and noted muscle spasm and limitation of range of motion of the neck. He last saw her on January 31, 1991, when he diagnosed myofascial neck and upper back pain and released her to return to work on a trial basis. Plaintiff was eventually treated by Dr. Dennis Aguirre, an anesthesiologist. He diagnosed fibromyalgia in August 1993. He testified that fibromyalgia is a 2
Authoring Judge: Per Curiam
Originating Judge:Hon. Walter C. Kurtz, |
Lawrence County | Workers Compensation Panel | 07/08/96 | |
| Treva Milan v. Quebecor Printing (U.S.A.) Group and Lumbermens Mutual Casualty Company
01S01-9601-CV-00005
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 her arms and wrists while working for defendant in April 1994. The trial judge awarded her 35 percent permanent partial disability to each upper extremity. We affirm the judgment of the trial court. Plaintiff was working on an assembly line, feeding magazine pages into a sorter, when a wooden pallet slid onto her arms, causing pain. She was placed on light duty and wore wrist splints for at least a month, but when she returned to full duty, she had a recurrence of pain, numbness and tingling. Dr. W. Cooper Beazley, orthopedic surgeon, diagnosed plaintiff with overuse syndrome in both hands and told her to consider changing to a job where she would not have to perform rapid, repetitious work with her hands. However, he did not assess any medical impairment under AMA Guidelines because the Guides do not provide for a permanent impairment rating for overuse syndrome. Dr. Lloyd Walwyn, orthopedic surgeon, conducted an independent medical examination including objective testing. He diagnosed cumulative trauma disorder with mild bilateral carpal tunnel syndrome and assessed 28 percent permanent partial impairment to each upper extremity. The employer made efforts to put plaintif f back to work with her post-injury limitations, but there was no work available at the factory that she was able to do. Plaintiff is 26 years old with a high school education and work experience mostly in factory work. The trial judge found that the injury plaintiff sustained reduced her ability to compete in the open job market because it permanently affected her use of her hands. He also found her testimony that she has pain to be convincing.
Authoring Judge: Per Curiam
Originating Judge:Hon. James E. Walton |
Montgomery County | Workers Compensation Panel | 07/08/96 | |
| Mary Charmagne Perdue v. National Healthcorp, L.P., Or National Health Corporation, Or Nhc, Inc., And/Or Columbia Health Care
01S01-9508-CH-00142
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 or claimant, Perdue, contends (1) that the evidence preponderates against the trial judge's finding that she failed to give the required notice of a claimed injury by accident occurring on January 23, 1993, (2) that the said injury was suffered within the course and scope of employment with the defendant, and (3) that she is entitled to compensation for an injury on April 3, 1994. The panel concludes that the judgment awarding benefits for an injury by accident arising out of and in the course of the claimant's employment in August of 1994 should be affirmed. The claimant is twenty-nine years old and has an associates degree in nursing. At all material times she was employed by the employer, Columbia, as a registered nurse. She claims to have strained her lower back in January of 1993 at work but continued to work. She did not give any written notice of the injury to the employer and there is conflicting evidence as to whether she verbally reported it. In April of 1993 she saw a chiropractor. On April 17, 1993, she noticed numbness in her hip and leg and began seeing Dr. Jeffrey Adams, who diagnosed a herniated lumbar disk. She did not tell the doctor that the condition was a result of an injury at work, according to the doctor, who performed corrective surgery. On August 5, 1993, the claimant was grabbed around the neck by a patient and pulled down to the patient's bed. Dr. Adams diagnosed a herniated disk at the same location as the previous one and performed a second corrective surgery. She has not returned to work.1 The trial judge found that, as to the claimed January injury, the claimant had failed to carry the burden of proof that her superiors at work had actual notice of her injury or that a work-related injury had occurred on that date.2 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 if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review. McCaleb v. Saturn Corp., 91 S.W.2d 1 The claimant had another surgery in 1994 by a different surgeon. 2 The trial judge did award medical and hospital benefits for the August injury, from which no issue has been raised in this appeal. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Jim T. Hamilton, |
Maury County | Workers Compensation Panel | 07/08/96 | |
| Treva Milan v. Quebecor Printing (U.S.A.) Group and Lumbermens Mutual Casualty Company
01S01-9601-CV-00005
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 her arms and wrists while working for defendant in April 1994. The trial judge awarded her 35 percent permanent partial disability to each upper extremity. We affirm the judgment of the trial court. Plaintiff was working on an assembly line, feeding magazine pages into a sorter, when a wooden pallet slid onto her arms, causing pain. She was placed on light duty and wore wrist splints for at least a month, but when she returned to full duty, she had a recurrence of pain, numbness and tingling. Dr. W. Cooper Beazley, orthopedic surgeon, diagnosed plaintiff with overuse syndrome in both hands and told her to consider changing to a job where she would not have to perform rapid, repetitious work with her hands. However, he did not assess any medical impairment under AMA Guidelines because the Guides do not provide for a permanent impairment rating for overuse syndrome. Dr. Lloyd Walwyn, orthopedic surgeon, conducted an independent medical examination including objective testing. He diagnosed cumulative trauma disorder with mild bilateral carpal tunnel syndrome and assessed 28 percent permanent partial impairment to each upper extremity. The employer made efforts to put plaintif f back to work with her post-injury limitations, but there was no work available at the factory that she was able to do. Plaintiff is 26 years old with a high school education and work experience mostly in factory work. The trial judge found that the injury plaintiff sustained reduced her ability to compete in the open job market because it permanently affected her use of her hands. He also found her testimony that she has pain to be convincing.
Authoring Judge: Per Curiam
Originating Judge:Hon. James E. Walton |
Montgomery County | Workers Compensation Panel | 07/08/96 | |
| Mary Charmagne Perdue v. National Healthcorp, L.P., Or National Health Corporation, Or Nhc, Inc., And/Or Columbia Health Care
01S01-9508-CH-00142
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 or claimant, Perdue, contends (1) that the evidence preponderates against the trial judge's finding that she failed to give the required notice of a claimed injury by accident occurring on January 23, 1993, (2) that the said injury was suffered within the course and scope of employment with the defendant, and (3) that she is entitled to compensation for an injury on April 3, 1994. The panel concludes that the judgment awarding benefits for an injury by accident arising out of and in the course of the claimant's employment in August of 1994 should be affirmed. The claimant is twenty-nine years old and has an associates degree in nursing. At all material times she was employed by the employer, Columbia, as a registered nurse. She claims to have strained her lower back in January of 1993 at work but continued to work. She did not give any written notice of the injury to the employer and there is conflicting evidence as to whether she verbally reported it. In April of 1993 she saw a chiropractor. On April 17, 1993, she noticed numbness in her hip and leg and began seeing Dr. Jeffrey Adams, who diagnosed a herniated lumbar disk. She did not tell the doctor that the condition was a result of an injury at work, according to the doctor, who performed corrective surgery. On August 5, 1993, the claimant was grabbed around the neck by a patient and pulled down to the patient's bed. Dr. Adams diagnosed a herniated disk at the same location as the previous one and performed a second corrective surgery. She has not returned to work.1 The trial judge found that, as to the claimed January injury, the claimant had failed to carry the burden of proof that her superiors at work had actual notice of her injury or that a work-related injury had occurred on that date.2 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 if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review. McCaleb v. Saturn Corp., 91 S.W.2d 1 The claimant had another surgery in 1994 by a different surgeon. 2 The trial judge did award medical and hospital benefits for the August injury, from which no issue has been raised in this appeal. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Jim T. Hamilton, |
Maury County | Workers Compensation Panel | 07/08/96 | |
| Robin Sloan v. Bridgestone/Firestone, Inc.
01S01-9509-GS-00157
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 that the award of disability benefits is excessive; and the employee contends the trial court erred in finding that she did not suffer a disabling work-related neck injury. The panel has concluded that the judgment should be modified as provided herein. On July 5, 1992, the claimant, Robin Sloan, strained her back at work. She reported the injury to her employer and was referred to Dr. G. Jackson Jacobs, who referred her to Dr. David Bratton, an orthopedic surgeon, who, on July 15, 1992, diagnosed lumbar strain and released her to light duty for two weeks. She saw Dr. Daniel Phillips on October 23, 1992 and two other occasions. Dr. Phillips found no permanent disability to the claimant's back or neck caused by a work-related injury. Her attorney referred her to Dr. Richard Fishbein. Dr. Fishbein, on the strength of the history related to him by the claimant, agreed with the original diagnosis and assessed a permanent impairment of five percent to the whole body. The claimant is thirty-four years old witha high school educationand an associates degree in education from Motlow State Community College. She has experience in office work, as a restaurant manager and in business. She quit working for the employer shortly after the accident and was not working at the time of the trial. She was able to work, according to Dr. Bratton's note on and after July 15, 1992. The trial judge awarded permanent partial disability benefits on the basis of thirty-five percent to the body as a whole and temporary total disability benefits from July 5, 1992 to January 7, 1993. 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). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Barry Medley, |
Warren County | Workers Compensation Panel | 07/08/96 | |
| Robin Sloan v. Bridgestone/Firestone, Inc.
01S01-9509-GS-00157
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 that the award of disability benefits is excessive; and the employee contends the trial court erred in finding that she did not suffer a disabling work-related neck injury. The panel has concluded that the judgment should be modified as provided herein. On July 5, 1992, the claimant, Robin Sloan, strained her back at work. She reported the injury to her employer and was referred to Dr. G. Jackson Jacobs, who referred her to Dr. David Bratton, an orthopedic surgeon, who, on July 15, 1992, diagnosed lumbar strain and released her to light duty for two weeks. She saw Dr. Daniel Phillips on October 23, 1992 and two other occasions. Dr. Phillips found no permanent disability to the claimant's back or neck caused by a work-related injury. Her attorney referred her to Dr. Richard Fishbein. Dr. Fishbein, on the strength of the history related to him by the claimant, agreed with the original diagnosis and assessed a permanent impairment of five percent to the whole body. The claimant is thirty-four years old witha high school educationand an associates degree in education from Motlow State Community College. She has experience in office work, as a restaurant manager and in business. She quit working for the employer shortly after the accident and was not working at the time of the trial. She was able to work, according to Dr. Bratton's note on and after July 15, 1992. The trial judge awarded permanent partial disability benefits on the basis of thirty-five percent to the body as a whole and temporary total disability benefits from July 5, 1992 to January 7, 1993. 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). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Barry Medley, |
Warren County | Workers Compensation Panel | 07/08/96 | |
| Brenda Gail Ward v. United States Fidelity and Guaranty Company
03S01-9509-CH-00109
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's insurer contends the evidence preponderates against the award of permanent disability benefits. The panel concludes the judgment should be reversed and the cased dismissed. The only issue litigated at trial was the extent of the claimant's permanent disability, if any. On February 19, 1993, the employee or claimant, Brenda Gail Ward, was sweeping a floor for her employer, United Parcel Service, when she suddenly slipped and fell, injuring her back, neck and shoulder. On April 7, 1993, she visited Dr. David Hauge, who treated her until January 26, 1994. Dr. Hauge diagnosed chronic degenerative changes unrelated to the above accident. His diagnosis was confirmed by an MRI of the spine. He found no evidence of an acute injury, except some muscle spasm which was resolved with physical therapy. He estimated her permanent impairment from her degenerative changes at nine percent to the whole body, but provided no proof of medical causal connection to the work-related accident. Approximately two years after the accident, the claimant was evaluated by Dr. William E. Kennedy, who found no permanent anatomical injury or change as a result of the work-related accident, but assessed her permanent impairment from her subjective complaints of pain at eight percent to the whole person. A vocational expert, Norman Hankins, estimated her industrial disability at between thirty-four and sixty-one percent, depending on her physical restrictions. The chancellor awarded permanent partial disability benefits based on forty-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 the trial court, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Billy Joe White, |
Campbell County | Workers Compensation Panel | 06/25/96 | |
| Joseph Jarreau v. Vanliner Insurance Company
01S01-9512-CH-00228
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. This appeal presents the questions whether and under what circumstances, if any, an injured worker may give up his right to future medical expenses. The panel concludes the trial court's judgment, approving a settlement in which the right to future medical expenses was voluntarily surrendered for consideration, should be affirmed. The employee or claimant, Jarreau, commenced this civil action by filing a complaint for workers' compensation benefits, averring that he had suffered an injury by accident arising out of and in the course of his employment by Ozark Motor Lines, Inc. The complaint further averred, in relevant part, that his injury had been diagnosed as a tear of the left medial meniscus, that he had reached maximum medical recovery and would retain a permanent impairment but that there was a genuine dispute as to the extent of his permanent disability. He sought to recover medical and permanent partial disability benefits. Vanliner Insurance Company served its answer admitting it was the insurer for Ozark, but denying that the claimant had suffered a compensable injury or that he was permanently disabled. On September 8, 1994, before the case could be tried, the claimant and his attorney and the attorney for Vanliner appeared before Judge Capers seeking approval of a negotiated settlement. By the settlement terms, the claimant was to receive $25,459.2, representing a permanent partial disability of forty percent to the left leg, and an additional $9,54.8 in consideration of the claimant's relinquishment of any claim for future medical benefits, for a total of $35,.. Additionally, the claimant had already received $15,481.3 in medical benefits and $12,481.3 in temporary total disability benefits. We find in the record no transcript of the settlement hearing, but Judge Capers found that Dr. Robert V. Russell had opined the claimant had reached maximum medical improvement and would retain a permanent anatomical impairment of ten percent to the leg. The judge further found the settlement to be in the best interest of the claimant, "in light of the controversy and dispute between the parties." The agreement was approved as a full, final and complete settlement of Mr. Jarreau's claim against the employer and its insurer. Almost eight months later, on April 28, 1995, the claimant applied to the court, per Tenn. R. Civ. P. 6.2, for an order setting aside the settlement 2
Authoring Judge: Per Curiam
Originating Judge:Hon. Bobby Capers, |
Wilson County | Workers Compensation Panel | 06/25/96 | |
| Anna Lue Mckamey v. Red Kap Industries
03S01-9505-CH-00053
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 appellant suffered a stroke while working on an assembly line. Substantial disability resulted, which she alleges is compensable as being accident- related. The trial judge disagreed, and she appeals. Our review is de novo, with the presumption that the judgment is correct unless the evidence otherwise preponderates. TENN. CODE ANN. _ 5-6-225(e)(2). Mrs. McKamey is 49 years old, with limited skills and education. Her assembly-line job involved the sewing of shirt collar stays, which may be fairly described as repetitive and monotonous. On May 12, 1992, while working the 7: a.m. to 3:3 p.m. shift, she suffered a stroke shortly before the end of her shift which resulted in total vocational disability. She alleges that, like all other employees, she was expected to make production, with its attendant pressures and tensions, which caused or contributed to the stroke. Causation is the dispositive issue. The proof revealed that Mrs. McKamey had been suffering from hypertension for years and had been regularly taking medication for that disease since 1988. She had smoked cigarettes since age 14; at the time of her stroke, she smoked more than twenty per day. Responding to a hypothetical question, Dr. John Purvis, a neurosurgeon, testified that the sewing of hundreds of collar stays during a regular shift could be a contributory factor to the cerebral accident, depending upon a resolution of certain factors, those being arteriosclerosis and hypertension, the former being aggravated or caused by smoking which "played a part" and contributed to her pre-existing condition. The inducing causes of her stroke was the rupture of a blood vessel. After reviewing a videotape of the assembly-line workers, Dr. Purvis testified as -2-
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Frank V. Williams, III |
Knox County | Workers Compensation Panel | 06/25/96 | |
| Debbie G. Farrow v. Phillips Consumer Electronics Company
03S01-9508-CV-00089
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 or claimant, Farrow, contends the evidence preponderates against the trial court's finding that her injury did not arise out of her employment. The panel concludes that the judgment should be reversed and the case remanded for an award of benefits. On October 6, 1993, the claimant was injured while she was hurriedly walking from her work station to the cafeteria at the start of a ten minute break period. She had almost reached the stop of a stairway when she came down hard on her foot, injuring her knee. She suffered internal knee derangement, according to the operating surgeon. The trial judge found that the injury occurred in the course of employment, but did not arise out of the employment, as required. 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 without any presumption of correctness. Presley v. Bennett, 86 S.W.2d 857 (Tenn. 1993). Generally, an injury arises out of employment if it has a rational causal connection to the work; and any reasonable doubt as to whether an injury arose out of the employment or not is to be resolved in favor of the employee. Hall v. Auburntown Industries, Inc., 684 S.W.2d 614 (Tenn. 1985); White v. Werthan Industries, 824 S.W.2d 158 (Tenn. 1992). Where an employee is injured on the employer's premises during a break period provided by the employer, such an injury is generally compensable. Wellington v. John Morrell and Co., 619 S.W.2d 116 (Tenn. 1981); Drew v. Tappan Co., 63 S.W.2d 624 (Tenn. 1982); Holder v. Wilson Sporting Goods Co., 723 S.W.2d 14 (Tenn. 1987). The rule is derived from the notion that an employer who directs or permits his employees to eat at a place provided for that purpose or otherwise within the premises, owes such employees the same duty of protection from danger there that it does at the place where the employees work. Johnson Coffee Co. v. McDonald, 143 Tenn. 55, 226 S.W. 215 (192). On the strength of those authorities, the panel finds that the evidence preponderates against the trial court's finding and in favor of a finding that the claimant's injury is compensable. The judgment of the trial court is accordingly reversed and the case remanded to the trial court for an award of benefits. Costs on appeal are taxed to the defendant-appellee. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Wheeler Rosenbalm, |
Knox County | Workers Compensation Panel | 06/25/96 | |
| Eunice Irene Freeman v. Sportswear and Associates and Liberty Mutual Insurance
01S01-9511-CV-00193
This workers' compensation appeal has been referred to the Special 1 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 judge found the plaintiff had suffered a 65% permanent partial disability to the body as a whole and entered judgment accordingly. The issues raised by the defendant are: 1) Whether the proof preponderates against the trial court's judgment as excessive. 2) Whether the trial court erred in holding that the plaintiff's award was not limited to two and a half times the medical impairment rating. 3) Whether the trial court erred in awarding the plaintiff a lump sum payment. The judgment of the trial court is affirmed. There is no dispute that the plaintiff, who is 58 years of age, with a high school education, whose primary job was as a sewing machine operator, was injured in an industrial accident. Further, there is no dispute that the plaintiff sustained a permanent vocational impairment to the body as a whole. The plaintiff submitted the only medical evidence in this case. The physician testified that the plaintiff had sustained a 17% permanent medical impairment to the body as a whole. The plaintiff, her husband and a co-worker testified concerning the plaintiff's condition subsequent to the injury. Each of these witnesses testified to the limitations of the plaintiff's ability to perform work as a result of her injuries. Without question the plaintiff sustained a significant injury in this accident. The trial judge saw and heard the witnesses who testified in court and credited their testimony. Credibility of these witnesses is for the trial judge to find, and we do not, and can not, reweigh the credibility on appeal. On appeal, we review the judgment of the trial court with a presumption of correctness. TENN. CODE ANN. _ 5-6-225(e)(2). We are required, however, to 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. Bobby Capers, |
Macon County | Workers Compensation Panel | 06/20/96 | |
| Johnson Controls v. Shelby J. Cotham and Larry Brinton, Director, Second Injury Fund
01S01-9511-CV-00212
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Donald P. Harris, |
Johnson County | Workers Compensation Panel | 06/20/96 | |
| Betty Jo Cleghorn v. Suburban Home Health, Inc.
01S01-9510-CH-00178
This workers' compensation appeal has been referred to the Special 1 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 held that the plaintiff had not met her burden of proving that she sustained a permanent vocational disability as a result of her work-related injury. Plaintiff appeals, asserting that the evidence does not support the trial court's judgment. We affirm the judgment of the trial court. No transcript of the evidence was filed. The evidence available for our review consists of the medical depositions offered in the trial court and their attendant exhibits. The medical evidence, taken as a whole, supports the judgment of the trial court. Our standard of review is de novo on the record accompanied by the presumption that the findings of fact by the trial court are correct. TENN. CODE ANN. _ 5-6-225(e)(2) Where no transcript of the evidence is filed, the appellate courts will conclusively presume that every fact admissible under the pleadings was found in favor of the appellee. Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 38, 311 (1949); Hollingsworth v. Safeco Ins. Cos., 782 S.W.2d 477, 479 (Tenn. App. 1989). Upon the record in this case, we can only find that the evidence does not preponderate against the judgment of the trial court. We affirm the judgment and the costs are taxed to the plaintiff/appellant. We remand the case to the trial court. John K. Byers, Senior Judge CONCUR: 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Claudia C. Bonnyman |
Davidson County | Workers Compensation Panel | 06/20/96 | |
| Ronald H. Anselm v. K-Va-T Food Stores, Inc., Fireman's Fund Insurance Company and Sue Ann Head, Director, Division of Workers' Compensation, Tennessee
03S01-9508-CV-00087
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 that he sustained an injury to his neck, arms and shoulders during the course of his employment by the K-VA-T Food Stores while performing repetitive actions involving the stocking of food shelves from April 1 to May 19, 1992. He further alleged that these repetitive actions aggravated a prior neck injury. The defendant denied the occurrence of an accidental injury. The plaintiff began working for K-VA-T as a cashier in September, 199. He was 5 years old, and had earned his livelihood driving a truck for most of his adult life. In l987 he was treated for shoulder pain for which, in December 1987, he settled a workers' compensation claim. He suf fered recurring pain in 199 while driving a truck and sought workers' compensation benefits which were awarded in December, 1992. The purported repetitive actions entailed by his most recent job occurred, as heretofore stated, during a six-weeks period in April and May, 1992. The trial judge found that the injuries complained of did not occur during the plaintiff's employment by K-VA-T, and dismissed the complaint. Our review is de novo on the record accompanied by a presumption that the findings of fact of the trial judge are correct unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Dr. Stephen Wiessfeld was the only medical expert called to testify. He said that based on the history related to him, the plaintiff sustained an aggravation to a pre- existing arthritic condition, but conceded that his opinion was dependent upon an accurate history of repetitive arm and shoulder movements. He found no anatomical changes, but relied upon the representations of his patient. Further evidence revealed that the claimed repetitive actions were not as onerous as claimed, which impelled the trial judge to find that the medical testimony was untrustworthy, and unreliable. The burden to establish each element of a workers' compensation claim is upon the employee claiming benefits. Oster v. Yates, 845 S.W.2d 815 (Tenn. 1992). One
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. W. Dale Young |
Knox County | Workers Compensation Panel | 06/20/96 | |
| Eunice Irene Freeman v. Sportswear and Associates and Liberty Mutual Insurance
01S01-9511-CV-00193
This workers' compensation appeal has been referred to the Special 1 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 judge found the plaintiff had suffered a 65% permanent partial disability to the body as a whole and entered judgment accordingly. The issues raised by the defendant are: 1) Whether the proof preponderates against the trial court's judgment as excessive. 2) Whether the trial court erred in holding that the plaintiff's award was not limited to two and a half times the medical impairment rating. 3) Whether the trial court erred in awarding the plaintiff a lump sum payment. The judgment of the trial court is affirmed. There is no dispute that the plaintiff, who is 58 years of age, with a high school education, whose primary job was as a sewing machine operator, was injured in an industrial accident. Further, there is no dispute that the plaintiff sustained a permanent vocational impairment to the body as a whole. The plaintiff submitted the only medical evidence in this case. The physician testified that the plaintiff had sustained a 17% permanent medical impairment to the body as a whole. The plaintiff, her husband and a co-worker testified concerning the plaintiff's condition subsequent to the injury. Each of these witnesses testified to the limitations of the plaintiff's ability to perform work as a result of her injuries. Without question the plaintiff sustained a significant injury in this accident. The trial judge saw and heard the witnesses who testified in court and credited their testimony. Credibility of these witnesses is for the trial judge to find, and we do not, and can not, reweigh the credibility on appeal. On appeal, we review the judgment of the trial court with a presumption of correctness. TENN. CODE ANN. _ 5-6-225(e)(2). We are required, however, to 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. Bobby Capers, |
Macon County | Workers Compensation Panel | 06/20/96 | |
| Farhad Yasin Sorani v. Royal Insurance Company of America and Kenco Plastics, Inc.
01S01-9510-CH-00179
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 judge awarded compensation to the worker based on 5% permanent partial disability to both arms. Because we find that the evidence preponderates against the award, we modify it to 25% disability to both arms. I. Mr. Sorani, an Iraqi Kurdish refugee, went to work for Kenco Plastics, Inc. on or about February 1, 1994. His duties included gripping and cutting plastic, and involved repetitive hand movements. On May 16, 1994 he went to the Sumner County Regional Medical Center complaining of soreness in his left arm. He was diagnosed with tendonitis and put on light duty for seven days. On June 24, 1994 Mr. Sorani consulted an orthopaedic specialist for pain and numbness in both hands. An examination resulted in a diagnosis of bilateral carpal tunnel syndrome. On July 2, 1994 he was referred to another specialist, for complaints of numbness and tingling in the fingers of both hands. This specialist confirmed the carpal tunnel syndrome diagnosis and concluded that it was caused or aggravated by the work at Kenco Plastics. The doctor treated Mr. Sorani conservatively until October 28, 1994 when he performed carpal tunnel release surgery on the right hand. Following the surgery, Mr. Sorani suffered from an involuntary "triggering" movement in the ring finger on his right hand. His doctor thought that the condition would improve on its own if he was given three weeks rest. The doctor - 2 -
Authoring Judge: Ben H. Cantrell, Special Judge
Originating Judge:Hon. Jane W Heatcraft, Judge |
Sumner County | Workers Compensation Panel | 06/20/96 | |
| Beecher Kent Bilbrey v. Roadway Express, Inc.
01S01-9511-CH-00215
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, Beecher Kent Bilbrey, has appealed from the action of the trial court in dismissing his claim for benefits because he failed to render proper notice of the claim to defendant, Roadway Express, Inc. The Chancellor made alternative findings regarding all other aspects of the claim in the event it was determined the notice requirement had been complied with or reasonably excused. Plaintiff is 5 years of age and has a 9th grade education. He was employed as a driver for defendant trucking company. On about June 2, 1993, while at a trucking terminal in Huntsville, Alabama, he testified he injured his back when hooking a set of double trailers. He said he called his dispatcher and told him he had pulled his back but didn't think it was going to be any problem. He told the trial court that upon returning to the Nashville terminal, Robert Anderson, a supervisor, asked him if he had been drinking and would he consent to take a blood alcohol test. He denied having drank anything and consented to take the test. He said he told Anderson he did not want to wait a long period of time to be given the test but left after waiting about 15 minutes. He returned to Cookeville where he went to the hospital emergency room. The record indicates that he returned to the emergency room on about June 3th and saw several doctors during June and July, 1993, concerning his physical condition. Plaintiff testified that shortly after the incident on June 2th he also called Roger Morrison, a relay manager, and told him he had hurt his back, had been to the hospital and wanted to go on sick leave. He said Morrison told him he was terminated for leaving the job. When asked if he had told how he hurt his back, he replied, "No. I didn't like his attitude. He made me mad." Plaintiff testified he knew it was a violation of company policy to leave without taking the blood test after he had agreed to do so. He also acknowledged that he was aware that he would be terminated for this reason. 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Vernon Neal |
Putnam County | Workers Compensation Panel | 06/20/96 |