WORKERS COMPENSATION PANEL OPINIONS

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, Roy Clardy, alleged that he had sustained gradual injuries to his right shoulder, right arm and thumb, and left arm. The trial court awarded 22.5% permanent partial disability to the body as a whole for the shoulder injury, 75% permanent partial disability to the right arm and 55% permanent partial disability to the left arm. The employer, TRW Commercial Steering Division (TRW), has appealed that ruling, asserting that the trial court erred by making separate awards, rather than a single award to the body as a whole; that the award is excessive; that the trial court erred in excluding portions of Mr. Clardy’s discovery deposition from evidence; and that the trial court did not have jurisdiction over the subject matter. We conclude that a single award should have been made in accordance with the concurrent injury rule and modify the award to 45% permanent partial disability to the body as a whole for the combined injuries. We also hold that the trial court erred in excluding Mr. Clardy’s deposition testimony. Finally, we hold that the trial court had jurisdiction over the subject matter of the case.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the trial court found the Employee's bilateral shoulder injury to be compensable and awarded benefits for 50% permanent partial disability to the body as a whole. Employer asserts that the trial court erred by accepting the evaluating physician's opinion that Employee suffered an 11% impairment and by awarding Employee 50% permanent partial disability to the body as a whole. Employer also contends that the permanent partial disability award should be limited to one and one-half times Employee's medical impairment rating because there was a meaningful return to work. We find the trial court did not err in accrediting Employee's medical proof, but we conclude that the evidence in the record preponderates against the trial court's finding that Employee did not have a meaningful return to work. Thus, the trial court erred in awarding benefits in excess of the one and one-half statutory cap. We modify the trial court's judgment and award one and one-half of the medical impairment rating of 11% or 16.5% to the body as a whole.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer, Delta Faucet, argues that the trial court erred in finding that the date of injury was prior to July 1, 2004, and that the award was therefore not subject to the "cap" of 1.5 times the anatomical impairment pursuant to Tennessee Code Annotated 50-6-241(d)(1)(a) (Supp. 2004). The employee argues that the award of 25% permanent partial disability to both arms is inadequate. We conclude that the injury occurred after July 1, 2004, and modify the award to 15% permanent partial disability to both arms.

This worker's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3). The trial court awarded eighty percent permanent partial disability to each arm, arising from employee's carpal tunnel syndrome. The employer, Convergys Corp., contends that the trial court erred in determining the date of injury, failed to apply the last-injurious-injury rule, and erroneously found that notice was timely. We affirm, as modified, the trial court's judgment.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. A complaint was filed by Francois Dextra in the Circuit Court for Davidson County alleging both a claim based in tort and one appearing to seek workers’ compensation benefits. The trial court dismissed the tort claim and directed the case proceed as a workers’ compensation claim. After more than two years, the case was dismissed by the trial court for failure to prosecute due to the failure of Mr. Dextra to have his case set for trial. On appeal, Mr. Dextra has not asserted that the trial court abused its discretion in dismissing the workers’ compensation claim but alleges the trial court erred by dismissing his tort claim and converting it to one for workers’ compensation benefits. We find no abuse of discretion in the trial court’s dismissal of the case and affirm that judgment. Appellate jurisdiction with regard to the dismissal of Mr. Dextra’s tort claim lies with the Court of Appeals and, pursuant to Rule 17 of the Tennessee Rules of Appellate Procedure, the cause is transferred to that court for appropriate review.

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 a report of findings of fact and conclusions of law. The employee alleged that he suffered a compensable injury as a result of a fall at his workplace. The trial court held that the injury was not compensable because the fall was idiopathic and was not associated with a hazard of the employment. Employee appeals, contending that the evidence preponderates against the finding of the trial court. We affirm the judgment.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with the provisions of Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found that Employee had sustained a hearing loss as a result of his employment and awarded 30% permanent partial disability to the hearing of both ears. Employer has appealed, arguing that the trial court erred in finding that Employee's hearing loss was work related. In the alternative, Employer argues that the trial court erred in finding the hearing loss to be related to Employee's work for Employer. Finally, Employer contends that the trial court used an incorrect burden of proof. We affirm the judgment.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with the provisions of Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the plaintiff 80% permanent partial disability to the right leg. The appellants claim that the trial court’s award is erroneous because it was based on the body as a whole and not a scheduled member, and further that the award is excessive and is not supported by the evidence. We conclude that the trial court based its ruling on loss of use of the scheduled member. We further conclude that the preponderance of the evidence supports the trial court’s award. Accordingly, we affirm the trial court’s 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) (2005) for hearing and reporting to the Supreme Court of findings of facts and conclusions of law. The employer asserts that the trial court erred by finding that the employee had proven a compensable injury, determining that the date of injury was May 13, 2004, and awarding the employee a permanent partial disability of 50% to the right arm. Pursuant to our duty to review and weigh the evidence, we conclude that the evidence does not preponderate against the trial court’s finding of a compensable injury. We disagree with the trial court’s finding of the date of the injury and the trial court’s award. Accordingly, we affirm the finding of a compensable injury and modify the date of injury and the amount of the award.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the trial court found that the employee suffered from post-traumatic stress disorder as a result of witnessing a visually disturbing incident in the course of his job as a police dispatcher and awarded 15% permanent partial disability to the body as a whole. The employer has appealed, contending that the triggering incident was not beyond the normal stress associated with the employee’s job and was therefore not compensable. The employee contends the trial court’s award was inadequate. Because we find that the triggering event went beyond the normal stress level associated with the employee’s job and that the employee does not have to be exposed to danger in order to recover for a purely psychological injury, we affirm the trial court’s decision.

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 hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employee asserts that the trial court erred in awarding her a 43.75% permanent partial disability, rather than permanent total disability. We agree and therefore reverse the judgment of the trial court and enter judgment to the employee for permanent and total disability. We also conclude that the trial court erred by failing to calculate the disability resulting from the shoulder injury independent of the employee’s preexisting back injury. We therefore remand the case to the trial court 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 hearing and reporting of findings of fact and conclusions of law. In this case, the trial court found the employee’s hearing loss to be compensable, and awarded benefits for ninety percent hearing loss to both ears. The employer has appealed, contending that the trial court erred in reopening the proof and ordering an independent medical examination after the case had been tried and a ruling had been issued. The employer also contends that the trial court erred in finding that the employee’s hearing loss was work-related, and that the size of the award is excessive. We hold that the evidence is sufficient to support the trial court’s finding on causation, even if the post-trial evidence is not considered, and affirm the amount of the award of permanent partial disability.

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 hearing and reporting of findings of fact and conclusions of law. The court awarded 33% permanent partial disability to the body as a whole. The employee has appealed that ruling, contending that the trial court erred in excluding medical proof concerning a pre-existing disability unrelated to his work injury. The employee further contends that the trial court erred in failing to award permanent total disability benefits. We conclude that the exclusion of the medical evidence was error, but that it did not affect the result of the case. We affirm the judgment of the trial court as to permanent partial disability benefits.

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 hearing and reporting of findings of fact and conclusions of law. The trial court found that the employee died as a result of a compensable occupational disease, silicosis, which was caused by exposure to silica dust in the course of his employment. The court awarded death benefits and specified medical and funeral expenses to employee’s widow. The employer has appealed that ruling, contending that the evidence preponderates against the trial court’s finding on causation. In the alternative, the employer requests that the case be remanded to the trial court to determine the amount of a set-off, if any, for Social Security old-age insurance benefits in accordance with Tennessee Code Annotated section 50-6-207(4)(A)(i)(2005). We affirm the judgment of the trial
court.

 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 hearing and reporting of findings of fact and conclusions of law. In this case, the employee, Gerald Amos, suffered a heart attack following a theft from his person while waiting at a truck stop for a scheduled pick-up. The trial court found the employee’s heart attack to be compensable and awarded benefits for permanent total disability. The trial court refused, however, to set off a portion of his social security benefits as provided in Tennessee Code Annotated section 50-6-207(4)(A)(i). The employer contends that the heart attack did not arise from or occur in the course of the employment. The employer also contends that the trial court erred by not setting off a portion of the employee’s social security old age benefits against the award. We affirm the trial court’s ruling on causation, but modify as to the set-off. Tenn. Code Ann. § 50-6-225(e) (Supp. 2006

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the trial court found the employee’s elbow injury to be compensable and awarded benefits for 25% permanent partial disability to the left arm. The employer contends that the injury did not arise from or occur in the course of the employment and that the employee did not give timely notice of her injury in accordance with Tennessee Code Annotated section 50-6-201. We reverse the trial court’s finding that the injury was compensable and dismiss the employee’s complaint.

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 hearing and reporting of findings of fact and conclusions of law. The trial court found that the employee did not sustain a permanent disability and was not entitled to temporary total disability benefits. The employee has appealed, contending that the trail court erred by giving more weight to the opinion of the treating physician than to the evaluating physician and by finding that he did not sustain a permanent injury. We affirm the trial court’s ruling in all respects.

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 hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The issues on appeal involve whether weeks spent absent from work due to a strike are included when calculating an employee’s average weekly wage. We hold that the trial court erred in excluding the weeks spent on strike and modify the award to reflect the proper calculation of the employee’s average weekly wage.

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 a report of findings of fact and conclusions of law to the Supreme Court. The trial court awarded 50% permanent partial disability to the body as a whole to the employee. The employer asserts that the trial court erred by finding that the employee sustained a compensable aggravation of his pre-existing congenital condition. In the alternative, the employer contends that the trial court erred by finding that the employee did not have a meaningful return to work and by awarding more than two and one-half times the medical impairment under Tennessee Code Annotated section 50-6-241(a). We affirm the finding of compensability, reverse the finding that the employee did not have a meaningful partial disability to the body as a whole.

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 a report of findings of fact and conclusions of law. The trial court awarded permanent partial disability benefits of 65% to the body as a whole. The employer has appealed, contending that the trial court used an incorrect method to calculate the average weekly wage. The employer also argues that the amount of the award is excessive and that it is entitled to a credit for an overpayment of temporary disability benefits. We hold that the method used to calculate the average weekly wage was, in fact, erroneous and modify the judgment accordingly. We also hold that the Employer is entitled to credit for the overpayment of temporary disability benefits. We otherwise affirm the trial court’s judgment.

This is a workers' compensation appeal referred to and heard by the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 50-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Defendant contends that the trial court erred in finding that plaintiff sustained a compensable work-related injury to his right shoulder, in awarding plaintiff temporary total disability benefits for work missed due to surgery, in awarding him a 12% disability to the body as a whole as to each shoulder, and in commuting the entire award into a lump sum payment. Plaintiff asks this court to find the Defendant's appeal in this case to be frivolous. We find the chancellor's rulings as to all these issues to be correct and affirm the trial court's decision. Finally, Plaintiff contends that the award is insufficient and that the trial court also erred in allowing Defendant to set-off benefits paid under the Defendant company's sickness and accident policy. Because we are unable to determine from the record the nature of the benefits paid by Defendant, we remand the case to the trial court for further proceedings consistent with this opinion.

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 failed to prove that she had sustained permanent disability as a result of work-related injuries to her neck and arms. The employee has appealed that ruling, arguing that the evidence preponderates against the trial court’s finding. The employee also specifically claims that the trial court erred by referring to one of the expert witnesses as a “non-treating” physician and by allowing certain medical records into evidence. We find no error and affirm the judgment of the trial court.

This is a workers' compensation appeal referred to and heard by the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Plaintiff contends that the preponderance of evidence is contrary to the trial court's finding that the Plaintiff did not sustain a compensable work-related injury. We believe the trial court was correct, and therefore we affirm the trial court's decision.

This worker's 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 hearing and reporting of findings of fact and conclusions of law. The trial court found that the employee suffered a permanent psychological injury while working, and awarded seventy percent (70%) permanent partial vocational disability to the body as a whole. The employer has appealed that ruling, contending that the evidence preponderates against the trial court's findings that the employee received a permanent psychological injury and that the award of seventy percent disability to the body as a whole is excessive. Also, the employer contends that the trial court erred in awarding the payment of past and future medical treatment. We affirm the judgment of the trial court.

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 hearing and reporting of findings of fact and conclusions of law. The trial court found that the employee had not had a meaningful return to work, and awarded twenty percent (20%) permanent partial disability to the body as a whole. The employer has appealed that ruling, contending that the award should have been “capped” in accordance with Tenn. Code Annotated section 50-6-241(d)(1)(A) (Supp. 2004) and that the Court erred by accrediting the testimony of Dr. Fishbein over that of Dr. Talmage. We affirm the judgment of the trial court as modified herein.