WORKERS COMPENSATION PANEL OPINIONS

In this workers’ compensation appeal, the employee alleged a work-related incident aggravated a pre-existing back condition and that he required surgery as a result of the injury. His employer denied the claim, contending that the surgery was for treatment of a preexisting condition and that the work related incident did not advance the pre-existing condition. The trial court found for the employee and awarded 20% permanent partial disability benefits. The employer appealed. We affirm the judgment.

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee sustained a work-related injury in September 2007, but medical treatment was not offered by the employer at that time. He continued to work for several months despite his injury. In March 2008, his employer sent him to a physician. He was diagnosed with a significant spinal injury, which required surgical treatment and resulted in severe disability. His employer had changed its workers’ compensation insurer in November 2007. Employee’s claim was settled, but the two insurers disagreed as to which was liable. The trial court found that the insurer at the time of the original injury was liable. That insurer has appealed, contending that the later insurer should be liable due to the gradual worsening of the employee’s condition after November 2007.  We affirm the judgment.

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee injured her back while discharging her duties in the housekeeping department of her employer in October 2003. After treatment in the emergency room, she received conservative treatment from her physicians. She was released by her physician and returned to work. In February 2005, she was terminated by her employer. She continued to receive medical treatment for her back. In 2006, her physician recommended surgery, which was performed in December 2007. The trial court found that the employee was  permanently and totally disabled as a result of her injury. The employer has appealed, contending that the employee had a meaningful return to work and that the award should be limited to two and one-half times her medical impairment ruling pursuant to Tennessee Code Annotated section 50-6-241(a)(1). The employer also contends that the evidence preponderates against the trial court’s finding that the employee was permanently and totally disabled. We affirm the judgment of the trial court.

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee sought reconsideration of his earlier workers’ compensation settlement, which had been “capped” pursuant to Tennessee Code Annotated § 50-6-241(d). His employer asserted that he had been terminated for cause, and was therefore not eligible for reconsideration. The trial court found for the employee and awarded additional benefits. We affirm the judgment.

The employee filed a motion to compel her employer to provide medical treatment pursuant to a court-approved settlement concerning a claim for an injury sustained in 2002. Her employer opposed the motion, contending that any medical treatment sought by the employee was due to a separate injury sustained in 2004. In the settlement of the 2004 claim, the employee had waived her right to future medical treatment. The trial court granted the employee’s motion, and her employer has appealed. We conclude that the employee’s claim for medical treatment is not ripe for judicial resolution, and vacate the trial court’s order.

The employee sustained a compensable injury to her left wrist. She alleged that she also sustained a neck injury as a result of the same incident. The employer denied the neck claim. The employee’s evaluating physician expressed somewhat contradictory opinions regarding the causal relationship between the work incident and her neck injury. The trial court held that the employee had a compensable neck injury in addition to her wrist injury and awarded benefits accordingly. The employer has appealed that finding. We affirm the judgment.

The primary issue presented in this appeal is whether an employee, who was injured when a tornado struck the tractor-trailer rig he was driving for his employer, has a compensable workers’ compensation claim. The central dispute between the parties is whether the claim arose out of the employment relationship. After careful review, we conclude that the employee was injured when he was subjected to a hazard not common to the general public but peculiar to the nature of his employment and to the conditions under which his employment was required to be performed. Accordingly, the injury arose out of his employment. The trial court’s judgment holding the employee’s claim to be compensable and its award of benefits is affirmed.

In this workers’ compensation action, the trial court held that the employee sustained a compensable injury to his neck. The trial court found that the employee had a 30% impairment as a result of the injury and awarded 75% permanent partial disability to the body as a whole. The employer had two policies of workers’ compensation insurance in effect on the date of the injury. The trial court held each insurer liable for one-half of the benefits paid to the employee. One of the insurers has appealed, contending that the evidence preponderates against the finding that the employee sustained a compensable injury and that it erred in its apportionment of liability. We affirm¹ the judgment.

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. Whereupon, it appeals to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court. Costs of this appeal are adjudged against the Employer, Lear Corporation, and its sureties, for which execution may issue if necessary.

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Employee was injured in a motor vehicle accident. It is undisputed that his injuries were compensable and that he is permanently and totally disabled as a result of the accident. The issues on appeal are the propriety of the trial court’s calculation of the average weekly wage, the trial court’s denial of a set-off to Employer for a settlement with the third party tortfeasor, and the award of vocational expert witness fees. We find that the trial court correctly calculated the average weekly wage, but erred by denying the set-off and awarding the expert’s fees. The judgment is modified accordingly.

The employee alleged that she sustained carpal tunnel syndrome and a right shoulder injury as a result of repetitive work activities. She was examined by several doctors provided by her employer, each of whom found that she had no permanent work injury. She sought and received treatment on her own with a physician who treated her for shoulder impingement and carpal tunnel syndrome. This doctor assigned permanent impairment but also testified that those conditions were not work-related. An evaluating physician assigned permanent impairment and testified that the conditions were work-related. Employee was a part-owner of an upholstery business during a period of time prior to the onset of her symptoms. Her testimony concerning the nature of her work for that business was inconsistent. The trial court found that she had not sustained her burden of proof and entered judgment for her employer. She has appealed, contending that the evidence preponderates against the trial court’s findings. We affirm the judgment.

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Sarah Louise Bean (“Employee”) sustained bilateral shoulder injuries in the course and scope of her employment with Tepro, Inc. (“Employer”). After undergoing surgery on both shoulders, she was released to return to work. Employer was facing  reduced work volume at this time, and Employee worked only one day over the course of the next two months. She worked sporadically during the next four months and then was laid off indefinitely due to economic conditions. During the layoff, she applied for and received Social Security disability benefits. When she was called back to work after four months of layoff, she declined to return. At trial, the trial judge heard proof regarding the extent of Employee’s permanent physical impairment from Employee’s evaluating physician, Employee’s treating physician, and a Medical Impairment Registry (“MIR”) physician. After the conclusion of the proof, the trial court determined that Employee had sustained a permanent physical impairment of 19% to the body as a whole, that the impairment rating assigned by the MIR physician was rebutted by clear and convincing evidence, that the Employee was subject to the cap imposed by Tennessee Code Annotated section 50-6-241(d)(1)(A), and that she was entitled to an award of 28% permanent partial disability (“PPD”) benefits. Both parties challenge the trial court’s decision. After review, we modify the award of PPD to 21%, reduce the award of discretionary costs by $800, and affirm the remainder of the trial court’s judgment.

Employee sustained a compensable injury to her lower back. Employer initially provided medical treatment, but Employer’s insurer subsequently declined to provide additional medical treatment. Employee sought treatment on her own. Her treating physician found that she retained a 15% permanent impairment as a result of her injury. An examining physician for Employer opined that she had no impairment. A physician was selected through the Medical Impairment Registry (“MIR”) process. That physician also stated that Employee had no permanent impairment. The trial court found that Employee rebutted the presumption of correctness of the MIR physician’s rating by clear and convincing evidence pursuant to Tennessee Code Annotated section 50-6-204(d)(5) and awarded 20% permanent partial disability. Both sides appealed. We affirm the judgment of the trial court.

In this workers’ compensation action, the employee, Timothy Ruskin, worked as a maintenance technician for Ledic Realty Services, Ltd. (Ledic), which managed several apartment buildings. Mr. Ruskin was injured while responding to an after-hours call from a tenant of one of the apartment buildings. In response to his compensation claim, Ledic asserted as an affirmative defense that Mr. Ruskin’s injuries resulted from his intoxication. After a hearing, the trial court ruled in Ledic’s favor, and Mr. Ruskin appealed. We affirm the judgment of the trial court.

The employee alleged that he injured his back in the course of his employment. His employers denied the claim based upon failure to give timely notice of the injury. The employee saw two medical doctors and a chiropractor shortly after his injury. Their records contained no reference to a work injury; one stated that the injury had happened at home. The trial court found that the employee did not provide timely notice of his alleged injury and, alternatively, that he failed to sustain his burden of proof concerning causation. The employee has appealed from those findings. We affirm the judgment.

Employee filed a complaint for workers’ compensation benefits against her former employer alleging that her work for her former employer advanced pre-existing arthritis in both knees and required her to have joint replacement surgery on her right knee. The employer denied her claim, contending that her condition was unrelated to her employment. The trial court found that she had sustained a compensable aggravation of her arthritis and that she had not had a meaningful return to work. It awarded 78% permanent partial disability (“PPD”) to the body as a whole. The employer appealed,¹ contending that the trial court erred by finding the award was not subject to the one and one-half times impairment cap found in Tennessee Code Annotated section 50-6-241(d)(1)(A). We agree with employer that employee is entitled to an award of one and one-half times her impairment rating and decrease the award to 39% PPD to the body as a whole. We affirm the judgment as modified.

The Employee suffered a compensable injury while working on an automobile assembly line. A few months after the Employee filed a claim for workers’ compensation benefits, his employer, through a highly-publicized bankruptcy, sold a majority of its assets to a newly created entity. The trial court held that because the Employee, who was employed by the new entity, had not returned to work for his pre-injury employer, he was entitled to permanent partial disability benefits in excess of the cap established by Tennessee Code Annotated section 50-6-241(d)(1)(A). The employer has appealed, contending that the unique circumstances of its bankruptcy sale compel this Panel to rule that the Employee returned to work for his pre-injury employer. We affirm the judgment of the trial court.

An employee of a company providing security services injured a knee at his place of employment. The trial court denied workers’ compensation benefits. Because the injury arose out of the employment and is not idiopathic in nature, the employee is entitled to recovery under the statute. The judgment is reversed. The cause is remanded to the trial court for a determination of benefits.

The employee filed a workers’ compensation claim against the employer for injuries sustained in a trucking accident. The trial court ruled that the employee was permanently and totally disabled as a result of the accident and entitled to full benefits. The employer appealed, alleging that the trial court erred in finding the employee permanently and totally disabled. The appeal was referred to the Special Workers’ Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the findings of fact made by the trial court, the judgment is affirmed.

This appeal involves the application of the statute of limitations in Tenn. Code Ann. _ 50-6-203(g (2)(B) (2008) to a suit for workers' compensation benefits. An employee who sustained a compensable injury and who received authorized medical treatment filed a civil action in the Chancery Court for Giles County more than one year after the last payment of medical benefits. Her employer filed a "special motion to dismiss" on the ground that the suit was time-barred. The trial court, relying on the discovery rule, denied the motion on the ground that the limitations period did not begin to run until the employee's attorney received a letter from her treating physician stating [*2] that her injury was work-related. The Tennessee Supreme Court granted the employer permission to appeal under Tenn. R. App. P. 9 and referred the appeal to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Sup. Ct. R. 51 for hearing and a report of findings of fact and conclusions of law. We have determined that the statute of limitations bars the  employee's complaint and, therefore, reverse the judgment of the trial court.

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee sought to compel the employer to provide a total left knee replacement surgery based upon court-approved settlement for a work-related left knee contusion. The trial court ordered the employer to provide the knee replacement surgery and awarded attorney’s fees to the employee. The employer has appealed, arguing that the trial court erred by finding that the proposed surgery was causally related to the work injury. We agree and reverse the trial court’s order.

The employee sustained a compensable injury to his right arm. After surgery and recovery, he returned to work for the same employer at the same rate of pay. Over a year later, his work week was reduced from forty to thirty-two hours per week as part of a plant-wide reduction in hours due to economic conditions. While working the reduced number of hours, he accepted a buyout offer and voluntarily resigned. Subsequently, his workers’ compensation case was tried. The trial court held that he did not have a meaningful return to work because of the reduction in work hours and made an award of more than one and one-half times the impairment. The employer has appealed, contending that employee had a meaningful return to work in spite of the plant-wide reduction of work hours carried out for the purpose of preventing layoffs. We agree that the reduction in force, under these facts, does not impair the determination that the employee had a meaningful return to work, and we modify the judgment accordingly

Employee alleged that she injured her left arm in the course of her employment.  Employer denied liability, contending employee’s injuries were not causally related to or arising from her employment. The trial court found that employee injured her left wrist, left elbow, and left shoulder in the course and scope of her employment, and it awarded 39% permanent partial disability to the body as a whole. The trial court ordered employer to pay the treating physician the entire cost of surgery and treatment, and it ordered physician to reimburse TennCare. Employer has appealed. We affirm as to the arm injury but conclude that the evidence preponderates against the trial court’s finding that employee’s shoulder injury was related to her employment. We also conclude that the trial court erred regarding the payment of medical expenses to the physician. Accordingly, we remand the case to the trial court for a determination of permanent partial disability to the arm and entry of an order regarding reimbursement of medical expenses.

This consolidated appeal involves two employees who were injured while traveling in a personal vehicle during lunchtime while going from one job site to another. The trial court held that the injuries were compensable and awarded permanent partial disability benefits. The employer has appealed. We affirm the trial court's holding on the issue of compensability. However, we modify the trial court's ruling on the extent of disability.

After a plant closure, employee sought reconsideration of a prior workers’ compensation settlement for right shoulder and elbow injuries in accordance with Tenn. Code Ann. § 50-6- 241(a)(2) (2008). Employer denied that he was entitled to reconsideration of the elbow injury because it was a separate injury to a scheduled member. Id. § 50-6-241(a)(1). The trial court found that the two injuries were concurrent and that employee was entitled to receive reconsideration as to both. It further found that employee had proven three of the four factors set out in Tenn. Code Ann. § 50-6-242(a) (2008) by clear and convincing evidence and was therefore not limited by the six times impairment cap. The trial court awarded 57.5% permanent partial disability to the body as a whole. On appeal, employer contends that the trial court erred by finding the injuries to be concurrent and by finding that employee had satisfied the requirements of Tenn. Code Ann. § 50-6-242(a). We affirm the holding that the injuries were concurrent but find that employee did not satisfy his burden of proof under Tenn. Code Ann. § 50-6-242(a). We modify the judgment accordingly.