WORKERS COMPENSATION PANEL OPINIONS

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 alleged a compensable injury to his right shoulder and a compensable mental injury. His employer denied that the alleged mental injury was compensable. The trial court found both injuries to be compensable and awarded 50% permanent partial disability to the body as a whole. On appeal, the employer contends that the trial court erred by awarding benefits for the mental injury and by finding that the employee did not have a meaningful return to work. The employee contends that the trial court erred by accepting the impairment rating of the Medical Impairment Rating Registry physician and in the trial court’s application of the concurrent injury rule. We conclude that the evidence preponderates against the trial court’s finding that the employee sustained a compensable mental injury and modify the judgment accordingly.

Employee alleged that she sustained a compensable injury to her back. Employer referred her to a physician who opined that her condition was not work-related, and her claim was thereafter denied. After trial, the court found that Employee’s condition was compensable and awarded 65% permanent partial disability to the body as a whole and temporary total disability benefits. Employer has appealed, contending that the evidence preponderates against the trial court’s finding that a compensable injury occurred, or alternatively in ordering payment of temporary total disability benefits. We modify the award of temporary total disability benefits but otherwise affirm the judgment.

In this workers’ compensation action, the employee alleged that he sustained compensable injuries to his neck and lower back. His employer asserted that his injuries were the result of pre-existing degenerative conditions, or in the alternative, were worsened by an automobile accident which occurred after the alleged work injuries. The trial court found the neck injury to be compensable, but denied recovery for the alleged lower back injury. It awarded 85% permanent partial disability benefits, temporary total disability benefits, and required the employer to provide medical care for the neck injury. The employer has appealed arguing that the evidence preponderates against the trial court’s findings. We affirm the judgment.

Employee alleged that he sustained two compensable injuries to his left knee. The first injury occurred on December 12, 2004, was accepted as compensable by employer, and resulted in an award of 15% permanent partial disability to the left leg. That award is not contested on appeal. Employee alleged that a second injury occurred on September 26, 2006. Employer denied liability for that injury. The trial court found that Employee sustained a second injury and awarded 30% permanent partial disability to the left leg. On appeal, Employer asserts that the trial court erred by finding that a compensable injury occurred, or in the alternative, that Employee sustained a permanent disability as a result of the injury. We conclude that the record contains no medical evidence of a causal nexus between the second injury and the alleged disability. Accordingly, we reverse the judgment of the trial court and remand the case.

The employee sustained gradual injuries to his arms and shoulders as a result of repetitive motion in the course of his employment. His employer denied liability based upon the affirmative defense of misrepresentation of physical condition. Employee had sustained gradual injuries to his left shoulder and arm during a previous job. He was placed under permanent activity restrictions and received a workers’ compensation award as a result of those injuries. In applying for employment with appellant, he did not disclose the prior injuries. The trial court concluded that the employer did not prove the misrepresentation defense. Permanent total disability benefits were awarded. Employer has appealed, contending that the trial court erred by finding that it did not sustain its burden of proof as to the affirmative defense. Upon review, we conclude that the evidence preponderates against the trial court’s findings and that the employee’s misrepresentation was willful, was relied upon by the employer and was causally related to his subsequent injuries. Because we find that the employer sustained its burden of proving its affirmative defense, we reverse the awarding of benefits. Finally, we conclude that the employer is not entitled to recover the cost of retaining a consulting physician to view a surgical procedure that did not take place.

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. Michael Hall (“Employee”) alleged that he sustained compensable injuries as a result of repetitive use of his hands and arms in the course of his employment as a butcher for Latham’s Meat Company (“Employer”). Employer denied that he had sustained a compensable injury. In the alternative, it alleged that Employee’s injuries had been caused by his part-time work for a second employer. The trial court found that Employee had sustained compensable injuries to his arms and that Employer was liable for workers’ compensation benefits arising from those injuries. It awarded 22.5% permanent partial disability (“PPD”) to both arms. On appeal, Employer contends that the trial court erred by finding that a compensable injury occurred and by finding that Employee sustained permanent disability as a result. We affirm the judgment.

These workers’ compensation appeals were consolidated for hearing and disposition by order dated May 27, 2009. The employee, Larry Beshires, settled a claim for work-related injuries to his left knee and right shoulder, based upon the two and one-half times impairment cap in Tennessee Code Annotated section 50-6-241(a)(1). The settlement was approved by the Chancery Court of Fayette County. Mr. Beshires subsequently sustained a second injury, or aggravation of the previous injury, to his shoulder. He returned to work for a time, but then retired. He filed suit in the Chester County Chancery Court, seeking benefits for the new injury or, alternatively, reconsideration of his prior settlement. The reconsideration action was transferred to the Chancery Court of Fayette County. After a hearing on the merits, the Fayette County court declined to award additional benefits. The Chester County court awarded 48% permanent partial disability to the body as a whole for the later injury. Both sides have appealed, and the appeals have been consolidated by order of the Supreme Court. Mr. Beshires contends that 1 the Fayette County court erred by failing to award additional 1 Pursuant to Tennessee Supreme Court Rule 51, they were then referred to the Special Workers’ (continued...) benefits. The employer contends that the Chester County court did not have subject matter jurisdiction, because the benefit review conference process had not been exhausted. We affirm both judgments.

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 fell from a platform at work. The injury was accepted by his employer as compensable. After a period of medical treatment, the authorized physicians released the employee to return to work with no permanent impairment or restrictions. The employee sought medical treatment on his own. Ultimately, he had surgery on his back and neck. He filed suit against his employer. Employee had two previous workers’ compensation awards. Several months later, he amended his complaint to add the Second Injury Fund as a defendant. After a trial on the merits, the trial court found that the employee had sustained a compensable injury which resulted in an 85% permanent partial disability to the body as a whole. The court apportioned the award according to Tennessee Code Annotated section 50-6-208(b). It then dismissed all claims against the Second Injury Fund, based upon the statute of limitations. It awarded some medical expenses claimed by the employee, but denied others. On appeal, the employee asserts that the trial court erred by dismissing the claim against the Fund, by incorrectly determining the percentage of disability represented by his earlier settlements, and by declining to award all requested medical expenses. Finding no error, we affirm the judgment.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. After developing an allergy to latex, a hospital employee filed a claim for workers’ compensation benefits in the Chancery Court for Davidson County. While the case was pending, the trial court declined to require the employee to submit to an independent medical examination in accordance with Tenn. Code Ann. § 50-6-204(d)(1) (Supp. 2009). The trial court conducted a bench trial and determined that the employee’s latex allergy was an occupational disease. The trial court also determined that the employee had a fifteen percent impairment to the body as a whole and awarded her permanent partial disability at fifty percent. The employer has appealed. We have determined that the trial court erred by failing to require the employee to submit to an independent medical examination. Accordingly, we vacate the judgment and remand the case for further proceedings.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The trial court approved a settlement of this workers’ compensation claim. The settlement was presented to the court by means of an affidavit executed by the employee and a telephone conference between the court and the employee. Approximately six weeks later, the employee petitioned to set aside the settlement under Tenn. Code Ann. § 50-6-206(a) and alternatively, Tenn. R. Civ. P. 60.02. The trial court dismissed the petition for relief from Judgment. The employee has appealed. We affirm the order dismissing the petition to set the settlement aside.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. An employee sustained a work-related repetitive exposure hearing loss injury. After he retired for reasons unrelated to the injury, he filed suit in the Criminal Court for Wilson County seeking workers’ compensation benefits. Following a bench trial, the trial court awarded 65% permanent partial disability to the hearing of both ears and set the date of injury as the date that the employee first learned of his hearing loss. The employer appealed arguing that the award was excessive and that the trial court erred in setting the date of injury. We find that the award was excessive and modify it to 15% permanent partial disability to the hearing of both ears. We have also determined that the trial court erred with regard to its determination of the date of the injury.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. The employee developed a latex allergy as a result of her employment at a hospital, and the hospital made certain accommodations that enabled the employee to continue working. However, the employee’s sensitivity to latex increased over the years, and she eventually left her job. The employee filed a petition seeking workers’ compensation benefits in the Chancery Court of Davidson County. Following a bench trial, the trial court awarded the employee 60% permanent partial disability to the body as a whole. On this appeal, the employer contends that the treating physician’s impairment rating should not have been admitted into evidence because it was not in accordance with the AMA Guides. The employer also argues that a lower impairment should have been used by the trial court and that the award should have been capped. We affirm the judgment.

In this workers’ compensation action, the employee, Regina Day, sustained compensable injuries to both of her shoulders. She returned to her pre-injury job, but the holding company which owned her employer had been sold to another entity. The employer, which had been a corporation, became a limited liability company (LLC). The trial court, applying existing case law, held that she had not returned to work for her pre-injury employer and awarded permanent partial disability benefits in excess of the statutory cap contained in Tennessee Code Annotated section 50-6-241(d)(1)(A). Her employer has appealed, contending that the trial court erred by failing to apply the cap or, in the alternative, that the award is excessive. We affirm the judgment.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The trial court found that the employee had sustained a hearing loss as a result of exposure to noise during her work from 1944 to 1989 as a telephone operator for her employer, and awarded 50% permanent partial disability (“PPD”) of the hearing of both ears. The employer has appealed, contending that the evidence preponderates against the trial court’s finding on the issue of causation. Alternatively, it argues that the award is excessive. We reverse the judgment and dismiss the complaint.

In this workers’ compensation case, the employee, George Cecil Resh, alleged that he sustained
hearing loss due to exposure to a harmful level of noise in his workplace. The employer, Building
Materials Corporation, denied that the employee’s hearing loss was work-related. The trial court
found in favor of the employee and awarded 50% permanent partial disability of the hearing of both ears. The employer has appealed, contending that the evidence preponderates against the trial court’s finding. Because we find that the expert medical evidence failed to establish that Mr. Resh’s hearing loss was work-related, we agree and reverse the judgment.1

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 trial court awarded workers’ compensation benefits for gradual injuries to the employee’s hands, arms, shoulders and left knee. On appeal, her employer asserts that the trial court erred by finding that she had complied with the notice statute, Tenn. Code Ann. § 50-6-201(b), and also by finding that she had sustained her burden of proof on the issue of causation. We conclude that sufficient notice was given. In addition, we conclude that the evidence preponderates against the trial court’s finding of a causal relationship between the employee’s work and her left knee injury. We affirm the findings of causation concerning her other injuries.

Employee sustained a compensable injury to his lower back. He alleged that he also sustained a mental injury as a result of chronic pain. His employer contended that the chronic pa in and any menta l conditions a rising f rom it we re the re sult of seve ra l previous injurie s and surge rie s. The tria l court awa rded bene fits for the menta l injury. The employe r contends tha t the trial court erred by doing so. We disagree and affirm the judgment.

The employee filed a workers’ compensation claim for neck and lower back injuries
sustained while setting up a conference room during a temporary job assignment. The trial
court found that both injuries were work-related, assigned a six percent impairment to the
neck and a five percent impairment to the back, and applied a multiplier of 2.5. Both the
employee and the employer filed appeals, which have been referred to the Special Workers’
Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code
Annotated section 50-6-225(e)(3). The judgment of the trial court is affirmed.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee alleged that he injured his back in the course of his employment. Employer denied liability, asserting that Employee had not complied with the notice requirements of the workers’ compensation law. Tenn. Code Ann. § 50-6-201. The trial court found that Employee gave sufficient notice, and awarded one hundred fifty-six weeks of permanent partial disability benefits. Employer has appealed, arguing that the trial court erred by finding that Employee provided notice of his injury, and also that the award is excessive. We affirm the judgment.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The
plaintiff, Gloria Kazeleski, was involved in an automobile accident, and sought workers’ compensation benefits from defendant Dixie Motors, Inc. Dixie Motors contended that she was not its employee, but an independent contractor. The trial court ruled that she was an employee, and awarded benefits, including 100% permanent disability of the left arm. The defendant has appealed, arguing that the trial court erred by finding that plaintiff was its employee. We conclude that she was an independent contractor, and reverse the judgment.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The employee filed an action in Chancery Court. He later filed a notice of voluntary nonsuit and immediately refiled his action in Circuit Court. An order dismissing the Chancery Court action was filed several days later. The employer moved to dismiss the Circuit Court action, noting that the Chancery Court action was still pending at the time the Circuit Court action was filed. The Circuit Court granted the motion. Employee has appealed, contending that the trial court erred in its interpretation of Tenn. R. Civ. P. 41. We affirm the judgment.

In this workers’ compensation action, the employee, Kimberly Wheeler, sustained repetitive trauma injuries to both arms. The injuries were accepted by her employer, Whirlpool Corporation, as compensable. After having surgery on both arms, she returned to work, initially in a light-duty
status, and later to full duty. The product line on which she worked was then shut down and moved to another location. She was offered the option of accepting a voluntary layoff or moving to another product line. She chose the voluntary layoff. Under the terms of her employment contract, she continued to be an employee although she was not working. Eventually, the entire plant closed and Ms. Wheeler was terminated at that time. The trial court found that she had meaningful return to work and voluntarily left her employment. For that reason, it limited its award of permanent partial disability benefits to one and one-half times the anatomical impairment in accordance with Tennessee Code Annotated section 50-6-241(d)(1)(B). The employee has appealed, contending that the trial court erred by applying the one and one-half times impairment cap. We agree and modify the judgment.1

In this workers’ compensation action, the employee, Thomas Hall, alleged that he sustained hearing loss due to exposure to noise in the workplace. The employer, TRW Automotive U.S., LLC,
contended that most of the hearing loss occurred after Mr. Hall began wearing hearing protection,
and was therefore not caused by his employment. The trial court awarded 75% permanent partial
disability of the hearing of both ears. TRW has appealed, arguing that the trial court erred in that
it failed to apportion the award to the body as a whole, selected an incorrect injury date, declined to
view a video recording of an evidentiary deposition, and made an excessive award of benefits. We
conclude that the award should have been assigned to the body as a whole, and that the trial court
selected an incorrect injury date. The judgment is modified accordingly.1

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The employee alleged that she had sustained a permanent disability as a result of a work-related injury to her lower back. The trial court ruled that she had no permanent disability. She has appealed, contending that the trial court erred in accepting the testimony of the treating physician over that of the evaluating physician. We find no error, and affirm the judgment.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6- 225(e)(3) for a hearing and report of findings of fact and conclusions of law. The employee, Barry Wayne Johnson, sought benefits for injuries he sustained in the course and scope of his employment with Raines Brothers, Inc. The employee fell fifteen to twenty feet into an air conditioning vent shaft at a construction site, shattering the left side of his pelvis and acetabulum. Following a course of treatment, the employee returned to work and was terminated after he informed his employer that he could not perform the light-duty work assigned to him due to residual and chronic pain. The trial court awarded permanent and total disability benefits. On appeal, the employer argues that the trial court erred in awarding permanent and total disability benefits. After careful review, the judgment of the trial court is affirmed.