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| 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 | |
| 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 | |
| Kathy Shrum v. Insurance Company of The State of Pennsylvania
01S01-9511-CH-00205
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 by Defendant, Insurance Company of the State of Pennsylvania, has resulted from the action of the trial court in authorizing the employee to seek treatment from a physician not designated by the employer. The dispute has arisen after the parties reached a settlement of all issues, and it relates to post- judgment treatment of plaintiff, Kathy Shrum. During February, 1995, an order of compromise and settlement was entered stating the employee was to receive an award of permanent disability benefits based on a 4.17% disability to the body as a whole. The order recited plaintiff was to remain under the care of Dr. Dave A. Alexander, an orthopedic surgeon, who had performed surgery on plaintiff and who was her treating physician for carpal tunnel syndrome injuries. Dr. Alexander had been designated along with two other surgeons by the Defendant as medical care providers pursuant to our statute. After providing for the furnishing of future medical expenses, the order recited The parties specifically recognize that defendant has not accepted as compensable and will not pay medical benefits related to any condition other than plaintiff's alleged bilateral carpal tunnel syndrome in light of the fact that there is medical proof which suggests that plaintiff suffers from a congenital condition known as cervical ribs which might be responsible for some of plaintiff's current symptomatology. On May 19, 1995, plaintiff filed a motion reciting she had not been receiving satisfactory medical attention and requested the court to choose an independent physician to treat her or to allow plaintiff to choose her own treating physician. Defendant filed a response opposing the request and alleged there was no evidence to support her claim as she had not been treated since April 4, 1994. On June 19, 1995, an order was entered by the trial court, stating " . . . Plaintiff is not satisfied with the doctors submitted to treat plaintiff by defendant . . ." -2-
Authoring Judge: Per Curiam
Originating Judge:Hon. C. K. Smith, |
Macon County | Workers Compensation Panel | 06/20/96 | |
| Martin Ellison Hughes v. Pioneer Plastics, Inc. and WaUSAu Insurance Co.
03S01-9509-CV-00110
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 lower back lifting a heavy machine part at work on June 21, 1994. The trial court awarded him 5 percent permanent partial disability to the body as a whole and denied plaintiff's request for payment in lump sum. We affirm the judgment of the trial court. Plaintiff's injury at work on June 21, 1994 resulted in a herniated disc at L4- L5 which was treated conservatively without improvement. He underwent surgical repair on September 6, 1994 by Dr. Steven A. Sanders. He reached maximum medical improvement on February 5, 1995 and Dr. Sanders assessed 1 percent permanent partial impairment. Plaintiff was limited to lifting no greater than 35 pounds occasionally or 17 pounds frequently or five pounds constantly. He was told not to work at a job requiring constant bending. Plaintiff underwent independent medical examination by Dr. Gilbert Hyde, orthopedic surgeon, on March 1, 1995. Dr. Hyde also opined that plaintiff had reached maximum medical improvement and assessed 15 percent permanent partial impairment to the body as a whole. He opined the plaintiff should not lift over 25 pounds, not repetitively lift over 1 to 15 pounds, and do no prolonged riding, driving, sitting, bending, twisting or stooping. Dr. Norman Hankins, vocational specialist, evaluated plaintiff on March 13, 1995. He opined plaintiff is 48 percent to 64 percent vocationally disabled, with the variance owing to the differences in limitations placed on plaintiff by Drs. Sanders and Hyde. Plaintiff testified that he is in constant pain in his lower back and right leg. He has trouble sleeping due to the pain and cannot put any pressure on his right leg. He cannot drive, and a friend takes him where he needs to go. He does not believe he is able to work. Our review is de novo on the record with a presumption that the findings of 2
Authoring Judge: Senior Judge John K. Byer
Originating Judge:Hon. Ben K. Wexler |
Knox 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 case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference...
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Vernon Neal, |
Putnam County | Workers Compensation Panel | 06/20/96 | |
| Kathy Shrum v. Insurance Company of The State of Pennsylvania
01S01-9511-CH-00205
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 by Defendant, Insurance Company of the State of Pennsylvania, has resulted from the action of the trial court in authorizing the employee to seek treatment from a physician not designated by the employer. The dispute has arisen after the parties reached a settlement of all issues, and it relates to post- judgment treatment of plaintiff, Kathy Shrum. During February, 1995, an order of compromise and settlement was entered stating the employee was to receive an award of permanent disability benefits based on a 4.17% disability to the body as a whole. The order recited plaintiff was to remain under the care of Dr. Dave A. Alexander, an orthopedic surgeon, who had performed surgery on plaintiff and who was her treating physician for carpal tunnel syndrome injuries. Dr. Alexander had been designated along with two other surgeons by the Defendant as medical care providers pursuant to our statute. After providing for the furnishing of future medical expenses, the order recited The parties specifically recognize that defendant has not accepted as compensable and will not pay medical benefits related to any condition other than plaintiff's alleged bilateral carpal tunnel syndrome in light of the fact that there is medical proof which suggests that plaintiff suffers from a congenital condition known as cervical ribs which might be responsible for some of plaintiff's current symptomatology. On May 19, 1995, plaintiff filed a motion reciting she had not been receiving satisfactory medical attention and requested the court to choose an independent physician to treat her or to allow plaintiff to choose her own treating physician. Defendant filed a response opposing the request and alleged there was no evidence to support her claim as she had not been treated since April 4, 1994. On June 19, 1995, an order was entered by the trial court, stating " . . . Plaintiff is not satisfied with the doctors submitted to treat plaintiff by defendant . . ." -2-
Authoring Judge: Per Curiam
Originating Judge:Hon. C. K. Smith, |
Macon County | Workers Compensation Panel | 06/20/96 | |
| John Primm v. Ucar Carbon Company, Inc.
01S01-9511-CV-00204
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, UCAR Carbon Company, Inc., has appealed from the action of the trial court in awarding plaintiff, John Primm, 65% permanent partial disability benefits to the body as a whole. Defendant contends the trial court was in error (1) in awarding 65% disability to the body as a whole, (2) in denying Defendant a set-off for payments of short-term disability insurance benefits and (3) in commuting the award to one lump sum payment. Plaintiff is 63 years of age and has a 12th grade education. He has followed construction work for many years and had worked for Defendant for 13 years prior to the time in question. During October, 1993, he was injured while using a pry bar to move a heavy metal plate. He said he felt a pinch in his back and shoulder and reported the injury to his employer. He continued to work on and off for different periods of time until his surgical procedures were over. After finally being released by his physician, he told the trial court he could not work at his old job and he elected to retire during March, 1995. The testimony of Dr. Eslick Daniel, an orthopedic surgeon, was presented by deposition. He indicated he first saw plaintiff on November 3, 1993, when he noted plaintiff had degenerative disc disease of his back and early arthritic changes of his shoulder. His first diagnosis was a shoulder and back strain and he said plaintiff did not indicate his problem was work-related. Upon seeing him a second time, his diagnosis was a rotator cuff strain with some tendinitis. He noted that between the two visits the patient had also seen a hospital emergency room doctor. Dr. Daniel had scheduled a CT Scan but plaintiff declined to take the test as he said the doctor had accused him of "faking" the injury. Dr. Daniel did not recall nor deny this conversation. Plaintiff decided to see another doctor designated by Defendant. This physician referred him to Dr. Greg Lanford, a neurosurgeon, who examined plaintiff 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Jim T. Hamilton, |
Maury County | Workers Compensation Panel | 06/20/96 | |
| Teresa Davis v. Tecumseh Products Company
02S01-9512-CV-00125
This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference.
Authoring Judge: Cecil Crowson, Jr.
Originating Judge:Hon. Julian P. Guinn, |
Henry County | Workers Compensation Panel | 06/11/96 | |
| Teresa Davis v. Tecumseh Products Company
02S01-9512-CV-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. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The only issue is the extent of the claimant's permanent partial disability. The panel concludes that the award of benefits on the basis of forty percent to both arms should be affirmed. The claimant, Teresa Davis, is thirty-five and has a tenth grade education. As noted by the trial judge, she has obvious intellectual limitations and her only working experience is in the field of manual labor. At the time of the trial she had not been able to find employment within her limitations. She gradually developed bilateral carpal tunnel syndrome at work and was referred to Dr. Glenn Barnett, who performed surgical releases on both arms and, when she continued to have pain when attempting to work, referred her to occupational therapy. He assessed her permanent impairment at five percent to each upper extremity. Her attorney referred her to Dr. Joseph Boals, who assessed her permanent impairment at ten percent to each upper extremity based on loss of grip strength following bilateral carpal tunnel release surgery. Dr. Ray Hester opined that she would not be able to perform repetitive work in the future. Other medical evidence confirmed the permanency of her injury. 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). Considerable deference is accorded the trial judge's findings with respect to the credibility of witnesses who testify in person, as well as the weight and value of such testimony. Landers v. Fireman's Fund Insurance Company, 775 S.W.2d 355, 356 (Tenn. 1989). In determining a claimant's permanent industrial disability, the trial court should consider, in addition to the extent of medical impairment, many factors, including job skills, education, age, training, duration of disability and local job opportunities for the disabled. Worthington v. Modine Manufacturing Co., 798 S.W.2d 232, 234 (Tenn. 199). The trial judge expressly found that there are few work opportunities for the claimant in her disabled condition, contrary to the contention of the employer that there are numerous jobs available to her. The evidence fails to preponderate against that finding or the finding that she will retain a permanent impairment of forty percent to both arms. The judgment of the trial court is accordingly affirmed. Costs on appeal are taxed to the defendant-appellant. 2
Authoring Judge: Cecil Crowson, Jr.
Originating Judge:Hon. Julian P. Guinn, |
Henry County | Workers Compensation Panel | 06/11/96 | |
| Reva Pitts v. National Union Fire Insurance Company and Sue Ann Head Director of The Division of Workers' Compensation Tennessee Department of Labor, Second Injury Fund
03S01-9509-CH-00108
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, National Union, asserts that the evidence preponderates against the trial court's findings that (1) the claimant's injury was one arising out of her employment, (2) the claimant is permanently and totally disabled , and (3) the claimant gave the required notice to the employer. The Second Injury Fund (the Fund) asserts that the evidence preponderates against the trial court's finding that (1) the claimant is permanently and totally disabled and (2) the claimant is entitled to more than twenty-two weeks of temporary total disability. The panel has concluded that the judgment should be modified as set forth below. The employee or claimant, Reva Pitts, is thirty-nine and has ahigh school education. She has some computer training. From a previous injury she received a workers' compensation based on forty percent to the body as a whole. In her duties as a tire builder for the employer, Dico Tire, Inc., she operated a machine by pushing foot pedals. As a result, she gradually developed foot pain in both feet, which, on July 24, 1992, Dr. James Engblom diagnosed as tarsal tunnel syndrome, superimposed on other foot maladies. The doctor operated on both feet and estimated her permanent impairment at fourteen percent to both feet. She reached maximum medical improvement for her left foot on August 3, 1992 and for her right foot on November 6, 1992. Dr. Catherine Gyurik, a psychiatrist, began evaluating the claimant on July 28, 1993, and diagnosed recurrent depression chronologically related to her foot problems. The doctor did not testify the claimant was permanently impaired by her mental condition. Dr. Norman Hankins, a vocational expert, testified that the claimant was eighty-one percent disabled from the foot injury and subsequent surgery, based on restrictions from a physical therapist. The chancellor found the employee to be permanently and totally disabled and apportioned forty percent of the award of disability benefits to the Fund and sixty percent to the employer. Additionally, the chancellor awarded temporary total disability benefits from May 21, 1992 to August 22, 1992, and from September 4, 1992 through November 6, 1992. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Billy Joe White, |
Knox County | Workers Compensation Panel | 06/10/96 | |
| William Richardson v. Murray Ohio Manufacturing Company
01S01-9508-CV-00130
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the plaintiff 15% permanent partial disability to the body as a whole. The defendant below appeals, challenging the trial court's finding that plaintiff retains a permanent impairment as a result of his work-related injury. We affirm the judgment of the trial court. Plaintiff, 38 at the time of trial is a high school graduate. W hile moving a roll of sheet metal on June 2, 1992, plaintiff felt a sharp pain in his groin. He was referred to Dr. Robert Coble, who diagnosed a right inguinal hernia and performed a surgical repair. After surgery, plaintiff returned to his former employer, performing light duty work for a while and then returning to his former duties. Plaintiff testified that he re-injured this area in October, falling into a split. Plaintiff is now self- employed, painting and cleaning carpets. He testified that he continues to experience pain, soreness and pulling in his groin. Dr. Coble assigned plaintiff an impairment rating of 1% to 15%. He admitted on cross-examination that the A.M.A. Guides allow only a zero to five percent impairment rating for a hernia. He relied in part on the first edition of the A.M.A. Guides but testified that he considered vocational factors such as the employment activity described to him by plaintiff and the problems plaintiff described having while performing those activities. He did not place any permanent restrictions on the plaintiff. Our review is de novo on the record accompanied by the presumption that the findings of fact of the trial court are correct unless the evidence preponderates otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). The plaintiff must prove every element of his case by a preponderance of the evidence. White v. Werthan Industries, 824 S.W.2d 158, 159 (Tenn. 1992). Causation and permanency of a work-related injury must be shown in most cases by expert medical evidence. Tindall v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987).
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. James L. Weatherford, |
Lawrence County | Workers Compensation Panel | 06/07/96 | |
| William Richardson v. Murray Ohio Manufacturing Company
01S01-9508-CV-00130
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with TENN. CODE ANN. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the plaintiff 15% permanent partial disability to the body as a whole. The defendant below appeals, challenging the trial court's finding that plaintiff retains a permanent impairment as a result of his work-related injury. We affirm the judgment of the trial court. Plaintiff, 38 at the time of trial is a high school graduate. W hile moving a roll of sheet metal on June 2, 1992, plaintiff felt a sharp pain in his groin. He was referred to Dr. Robert Coble, who diagnosed a right inguinal hernia and performed a surgical repair. After surgery, plaintiff returned to his former employer, performing light duty work for a while and then returning to his former duties. Plaintiff testified that he re-injured this area in October, falling into a split. Plaintiff is now self- employed, painting and cleaning carpets. He testified that he continues to experience pain, soreness and pulling in his groin. Dr. Coble assigned plaintiff an impairment rating of 1% to 15%. He admitted on cross-examination that the A.M.A. Guides allow only a zero to five percent impairment rating for a hernia. He relied in part on the first edition of the A.M.A. Guides but testified that he considered vocational factors such as the employment activity described to him by plaintiff and the problems plaintiff described having while performing those activities. He did not place any permanent restrictions on the plaintiff. Our review is de novo on the record accompanied by the presumption that the findings of fact of the trial court are correct unless the evidence preponderates otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). The plaintiff must prove every element of his case by a preponderance of the evidence. White v. Werthan Industries, 824 S.W.2d 158, 159 (Tenn. 1992). Causation and permanency of a work-related injury must be shown in most cases by expert medical evidence. Tindall v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987).
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. James L. Weatherford, |
Lawrence County | Workers Compensation Panel | 06/07/96 | |
| Martha G. Myers v. Aluminum Company of America
03S01-9509-CV-00102
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 on May 15, 1983, she injured most of her body as a result of a job-related accident. She returned to work in November 199 and allegedly sustained two additional injuries which aggravated her pre-existing condition resulting in total disability for which she seeks benefits. The defendant generally denied that the injuries complained of were serious and denied that the plaintiff suffered any degree of disability. The trial judge ruled that the plaintiff failed to carry her burden of proof and dismissed her case. Our review is de novo on the record with the presumption that the findings of fact are correct unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Henson v. City of Lawrenceburg, 851 S.W.2d 89, 812 (Tenn. 1993). The plaintiff is 44 years old. She started work at ALCOA in 1978, but five years later suffered a pulled muscle in a vaguely defined manner which caused some cervical discomfort, exacerbated the following day in another vaguely defined manner. She complained of continuing discomfort and was seen by Dr. Haralson, an orthopedic specialist. Two days later, she returned to work for a brief period. She then left work for about six months, returned, and left again. This pattern continued for eleven or twelve years. In October or November 199, she testified that she tripped over some cables which "aggravated my problem," and shortly afterwards caught her foot in a table leg which "hurt my low back right instantly then." She said that in December, "I had to quit, go out," and never returned to work. In the interim, she was injured in a traffic accident which seemingly contributed to her discomfort. -2-
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. W. Dale Young, |
Knox County | Workers Compensation Panel | 05/24/96 | |
| Robert F. Seymore v. Snap-On Tools Corporation
03S01-9507-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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Defendant, Snap-On Tools Corporation, has appealed from the action of the trial court in awarding plaintiff, Robert F. Seymore, 4% permanent partial disability to each upper extremity. Plaintiff is 52 years of age and has a 12th grade education. He suffered bilateral carpal tunnel syndrome injuries as a result of work-related activities. Surgery was performed on the right on July 13, 1993 and the left on August 31, 1993. He returned to work during October, 1993. Plaintiff's job title is a heat treat operator, and he constantly uses his hands and wrists in his work. He testified that, after surgery, he felt some relief but most of his symptoms of pain and numbness have returned. He has continued to work without a drop in his production rate but says he still suffers from his injuries as he works and even after work. There is evidence from his wife and supervisor to substantiate his complaints of continuing problems. The only issue on appeal is the extent of permanent disability. Dr. Paul E. Gorman, an orthopedic surgeon, testified by deposition and did not give plaintiff any permanent impairment under the A.M.A. Guidelines. However, he testified plaintiff should be restricted in working. His restrictions included no overtime work, avoidance of vibration tools and no lifting or handling of items weighing in excess of 1 pounds. Dr. Eric C. Roberts, a physician in physical medicine and rehabilitation, also testified by deposition and examined plaintiff for the purpose of giving an impairment rating. He agreed with the restrictions as imposed by Dr. Gorman but was of the opinion plaintiff had permanent impairment under A.M.A. Guidelines of ten percent to each upper extremity. -2-
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. G. Richard Johnson, |
Washington County | Workers Compensation Panel | 05/24/96 | |
| Gary Reatherford v. Lincoln Brass Works, Inc.
01S01-9504-CV-00058
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 was doing construction work at the Lincoln Brass Works facility, moving the employee break room from one side of the building to another, when a nail flew into his right eye, requiring several surgical procedures and resulting in total permanent loss of vision in the eye. The trial judge found that he was a statutory employee of Lincoln Brass Works and held the company liable for 1 percent permanent disability to plaintiff's right eye. We affirm the judgment of the trial court. The only issue before us is the status of the plaintiff for workers' compensation insurance purposes. The plaintiff contends, and the trial judge held, that he was a statutory employee and Lincoln Brass Works was a principal contractor (statutory employer) under TENN. CODE ANN. _ 5-6-113. Lincoln Brass Works contends plaintiff was either an independent contractor or a casual employee. Under TENN. CODE ANN. _ 5-6-113(a), "A principal, or intermediate contractor, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the principal, intermediate contractor, or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer," (commonly referred to as a "statutory employer"). This court has consistently held that where a business enterprise undertakes to act as its own principal contractor and contracts directly with a subcontractor for various phases of construction on its own premises, the business enterprise is subject to liability imposed by the Workers' Compensation Act. Acklie v. Carrier, 785 S.W.2d 355 (Tenn. 199). Lincoln Brass asserts the construction workers were independent contractors rather than statutory employees under TENN. CODE ANN. _ 5-6-113(a). The factors to be considered in determining whether a relationship to the principal was that of employee or independent contractor include: (1) the right to control the conduct of 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. William B. Cain |
Wayne County | Workers Compensation Panel | 05/17/96 | |
| Gary Reatherford v. Lincoln Brass Works, Inc.
01S01-9504-CV-00058
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 was doing construction work at the Lincoln Brass Works facility, moving the employee break room from one side of the building to another, when a nail flew into his right eye, requiring several surgical procedures and resulting in total permanent loss of vision in the eye. The trial judge found that he was a statutory employee of Lincoln Brass Works and held the company liable for 1 percent permanent disability to plaintiff's right eye. We affirm the judgment of the trial court. The only issue before us is the status of the plaintiff for workers' compensation insurance purposes. The plaintiff contends, and the trial judge held, that he was a statutory employee and Lincoln Brass Works was a principal contractor (statutory employer) under TENN. CODE ANN. _ 5-6-113. Lincoln Brass Works contends plaintiff was either an independent contractor or a casual employee. Under TENN. CODE ANN. _ 5-6-113(a), "A principal, or intermediate contractor, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the principal, intermediate contractor, or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer," (commonly referred to as a "statutory employer"). This court has consistently held that where a business enterprise undertakes to act as its own principal contractor and contracts directly with a subcontractor for various phases of construction on its own premises, the business enterprise is subject to liability imposed by the Workers' Compensation Act. Acklie v. Carrier, 785 S.W.2d 355 (Tenn. 199). Lincoln Brass asserts the construction workers were independent contractors rather than statutory employees under TENN. CODE ANN. _ 5-6-113(a). The factors to be considered in determining whether a relationship to the principal was that of employee or independent contractor include: (1) the right to control the conduct of 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. William B. Cain |
Wayne County | Workers Compensation Panel | 05/17/96 | |
| Ray Donald Hawkins v. Metropolitan Government of Nashville & Davidson County Tennessee
01S01-9508-CV-00126
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 sued his employer for workers' compensation benefits covering mental and emotional disability which resulted from being informed that he was about to be fired. The trial judge dismissed the action because it did not state a claim on which relief could be granted. We conclude that the judgment should be affirmed. I. The complaint alleged that the appellant had worked for the Nashville Electric Service for thirty-one years, serving finally as Executive Assistant General Manager. On March 11, 1992, one hour before a scheduled meeting of the Power Board, a Board member informed the appellant that at the meeting the Board would vote to dismiss him. Although the rumor turned out to be false, the appellant alleged that the shock and fright produced by the unwelcome news caused such mental and emotional stress that he became permanently disabled. The defendant filed a motion to dismiss for failure to state a claim. The trial judge initially overruled the motion but decided to grant it, after further proceedings in the case. II. - 2 -
Authoring Judge: Per Curiam
Originating Judge:Hon. Hamilton V. Gayden, Jr., |
Hawkins County | Workers Compensation Panel | 05/03/96 | |
| Ray Donald Hawkins v. Metropolitan Government of Nashville & Davidson County Tennessee
01S01-9508-CV-00126
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 sued his employer for workers' compensation benefits covering mental and emotional disability which resulted from being informed that he was about to be fired. The trial judge dismissed the action because it did not state a claim on which relief could be granted. We conclude that the judgment should be affirmed. I. The complaint alleged that the appellant had worked for the Nashville Electric Service for thirty-one years, serving finally as Executive Assistant General Manager. On March 11, 1992, one hour before a scheduled meeting of the Power Board, a Board member informed the appellant that at the meeting the Board would vote to dismiss him. Although the rumor turned out to be false, the appellant alleged that the shock and fright produced by the unwelcome news caused such mental and emotional stress that he became permanently disabled. The defendant filed a motion to dismiss for failure to state a claim. The trial judge initially overruled the motion but decided to grant it, after further proceedings in the case. II. - 2 -
Authoring Judge: Per Curiam
Originating Judge:Hon. Hamilton Gayden, Jr., |
Hawkins County | Workers Compensation Panel | 05/03/96 |